Nekewhenua Wirihana and Minister for Immigration and Citizenship - [2013] AATA 27

[2013] AATA 27

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2012/4948

Re

Nekewhenua Wirihana

APPLICANT

And

Minister for Immigration and Citizenship

RESPONDENT

DECISION

Tribunal
Miss E A Shanahan, Member

Date 10 January 2013

Place Melbourne
For the reasons given orally, the Tribunal sets aside the decision under review and in substitution decides that the Applicant’s visa shall not be cancelled.
(sgd) E A Shanahan
Member
MIGRATION – cancellation of visa – failure to pass character test – substantial criminal record – 15 charges including armed robbery, assault, drug dealing and drug use – sentenced to 4 years and 6 months imprisonment – early parole – exemplary prisoner – Applicant now aged 20 – arrived in Australia at age 14 – entire immediate family resident in Australia – low risk of recidivism – not unacceptable risk to the Australian community – extended support in Australia – few opportunities and support in country of birth and citizenship – Ministerial Direction No 55 – Decision set aside.
Migration Act 1958 ss 499 and 501
Direction No. 55 Visa Refusal and cancellation under s501
Re Glusheski and Minister for Immigration and Multicultural Affairs [2000] AATA 717
Re JSFD and Minister for Immigration and Citizenship [2009] AATA 734
Schuster-McFadyen and Minister for Immigration and Citizenship (2011) 124 ALD 68
REASONS FOR DECISION
Miss E A Shanahan, Member
21 January 2013

Mr Nekewhenua Wirihana, the Applicant in this matter, sought review of the decision of a delegate of the Minister for Immigration and Citizenship (the Minister) dated 24 October 2012. The delegate cancelled Mr Wirihana’s Class TY, Subclass 444 Special Category (temporary) visa in accordance with s 501(2) of the Migration Act 1958 (the Act), as Mr Wirihana did not satisfy the character test as defined in s 501(6)(a) of the Act given his substantial criminal record.
Mr Wirihana was to be released on parole having served 27 months of a 54 month sentence. However, following his visa cancellation, he was transferred from Port Phillip Prison to the Maribyrnong Migration Detention Centre.
In the hearing of this matter, Mr Wirihana was represented by Mr Guy Gilbert of counsel instructed by Carina Ford Immigration Lawyers. Mr Tigiilagi Eteuati, solicitor with Clayton Utz, represented the Minister. The Tribunal was provided with the documentation pursuant to s 501G of the Act (the G-documents, Exhibit R1). The Applicant tendered further documents which are listed in an Annexure to these reasons. The Tribunal heard evidence from the Applicant; his parents, Erueti and Michelle Wirihana; his brother Tyson and sister, Taane; his half-brother Algernon Warena Taylor; Mr Rory Ford, a counsellor and Ms Anne Hooker, a youth worker.
The hearing was convened on 13 and 14 December 2012. At the conclusion of the second day, I reserved my decision. Having regard to the time limit imposed by s 500(6L) of the Act and to avoid any adverse consequences to the Applicant, I delivered an oral decision to set aside the reviewable decision on 10 January 2013. The following are my reasons for decision.
BACKGROUND
In the interest of clarity and informality, the Tribunal will refer to the Applicant as Neke, his preferred form of address.
Neke, a citizen of New Zealand was born on 21 March 1992 and lived in New Zealand until his family migrated to Australia on 22 August 2006. Neke is the eldest of five children, he is Maori and completed the equivalent of year nine in New Zealand. The family consists of his parents Erueti and Michelle, and four younger siblings. His Special Category visa which is temporary permits him to remain in Australia indefinitely. His parents decided to migrate to escape the gang and drug culture to which they were exposed in New Zealand and to avail themselves of greater employment opportunities in Australia. Both parents have a child from an earlier relationship. Mrs Wirihana’s son, Algernon Taylor, has also relocated to Australia and lives with the Wirihana family. Mr Wirihana’s son lives in New Zealand and has little contact with his father. There are a large number of extended family members (aunts, uncles and cousins) resident in Australia.
In New Zealand Mr Wirihana was a heavy alcohol user and regular marijuana smoker. He ceased alcohol in 2009 and is attempting to cease his marijuana usage and has not indulged for approximately eight weeks. Neke commenced smoking marijuana at approximately aged 13 or 14 and did so in his father’s presence.
On arrival in Australia, the family lived with relatives in Frankston for about two months before they obtained a rental property for six months. They then relocated to another rental property. While all their residences were in the Frankston area, all three were in different state school zones. Thus, Taane and Tyson attended three different schools in the first four years and both quit school before completing their secondary education. Neke ceased attending school in 2006.
Neke obtained short term unskilled work from 2007 to early 2010 as a labourer, roof tiler and furniture removalist. He is said to have left home at age 16. The majority of his friends and peer group were illicit drug users. His girlfriend to whom he refers to as my missus became pregnant and without consulting him, underwent an abortion. This appears to have disturbed him greatly and triggered his progression to the use of speed and ice.
In late 2009 Neke committed several robberies from parked cars and an armed robbery. He was placed on probation for nine months after a hearing in the Frankston Children’s Court on 28 January 2010. His mother’s request that he be referred to a drug abuse counselling service was not executed despite such counselling being a condition of his probation.
Between April and August 2010 Neke committed and was then charged with more than 15 criminal offences as follows:

Court Date Offence Court Result

Melbourne County Court

03 Dec 2010

Armed Robbery

Imprisonment 2 years.

Armed Robbery
(3 Charges)
Traffick Amphetamine

On each count, Imprisonment 2 years.

1 year 8 months of each count concurrent and concurrent.

Attempt Armed Robbery

Imprisonment 18 months. 14 months of sentence concurrent.

Melbourne County Court (cont)

03 Dec 2010

Prohibited Person
Possess A Firearm Handle/receive/retention Stolen Goods

On each count. Imprisonment 1 year. 11 months of each count concurrent and concurrent.

Robbery

Imprisonment 1 year. 10 months of sentence concurrent.
To pay compensation $2,420.50

Attempt Robbery

Imprisonment 9 months. 7 months of sentence concurrent.

Intentionally Damage Property

Imprisonment 6 months. 5 months of sentence concurrent.
To pay compensation $2,420.50

Handle/receive/dispose
Of Stolen Goods

Imprisonment 6 months. 4 months of sentence concurrent.

Knowingly Deal With Proceeds of Crime
Assault Police On Duty
Escape From Custody
From Police Member

On each: Imprisonment 1 month. Concurrent.

Frankston Children’s Court

28 Jan 2010

Armed Robbery
Theft From Motor
Vehicle (4 Charges)

Without conviction, the accused is placed on probation for a period of 9 months to 27/10/2010.

On 3 December 2010, Neke pleaded guilty to 13 charges and was sentenced by Judge Gucciardo to 54 months imprisonment with a non-parole period of 27 months. Following the handing down of this sentence, Judge Gucciardo addressed the family, in Neke’s absence, expressing his hopes that Neke would be rehabilitated with the support of his family and the corrections system and that any future consideration of deportation would not break up the family.
Neke spent his first month of incarceration at Port Phillip Prison and was then transferred to Marngoneet Correctional Centre where he participated in and completed several courses:
·Exploring Change Program
·Moderate Intensity Violence Intervention Program
·24 hour Drug and Alcohol Education Treatment program
·Drug And Alcohol Orientation Session (G2 Annexure F2)
Throughout his incarceration at Marngoneet, members of his family, including Mr Taylor and several friends from Frankston visited him regularly. The Tribunal ascertained that the friends who visited were not those of the drug culture with whom he previously associated. Throughout this period Neke tested negative to random and targeted drug urine testing.
In March 2012, Neke of his own volition, requested transfer to the Youth Unit at Port Phillip Prison. His request was approved and transfer took place on 12 April 2012. He remained in the Youth Unit until November 2012 when he was transferred to the Maribyrnong Immigration Detention Centre following cancellation of his visa.
Ms Anne Hooker is the Youth Development Officer at Port Phillip Prison and has held this position for 14 years. Ms Hooker provided a report (Exhibit A3) and gave evidence before the Tribunal. In her statement she said, Neke’s involvement in the Youth Unit far exceeded our expectations. Neke had completed several more courses and was selected for training as a Prisoner Mentor, a role he subsequently performed with distinction.
In approximately October 2011, the Wirihana family moved from Frankston to Truganina which is near Lara, to be closer to Neke during his imprisonment and to distance themselves from the drug culture in Frankston.
Initially the Wirihana family had expressed their intention to return to New Zealand if Neke was deported. On further consideration, they have reversed this decision for financial reasons. All adult members of the family have steady and good jobs. Tyson and Taane are in stable relationships with family responsibilities of their own. All members of the family have expressed their fear that should Neke be deported to New Zealand, he would have difficulty obtaining a job and without a close family member (other than his elderly grandmother) to assist him, he may be pressured to join a drug dealing gang. Neke’s father has two brothers who are members of the Mongrel Mob gang and his mother’s two brothers are members of Black Power, a rival gang.
Should his application be successful and his visa restored, Neke has firmly expressed his intent to completely distance himself from the drug culture to which he was previously exposed, to remain drug free and to obtain employment as soon as he possibly can with the assistance of his father and his half-brother Mr Taylor. He says he would seek to reactivate his roof tiling apprenticeship or alternatively, obtain one through contacts Mr Taylor has in spray painting. He views any potential separation from his family as disastrous and doubts he would remain drug free or be employed if deported to New Zealand.
Under the terms of his parole, Neke would be reporting to a parole officer in Werribee three times a week and would undergo drug testing at random intervals. He would also have the assistance and service of drug and alcohol counselling bodies such as Community Offenders Advice and Treatment Service (COATS). Neke has expressed the desire to work on a voluntary basis counselling young offenders. Ms Hooker, in her evidence, outlined her contacts with these services, psychologists, community officers and parole officers in the Werribee area. She is permitted under the terms of her employment to assist young offenders after they are released from prison and would be more than willing to assist Neke.
EVIDENCE BEFORE THE TRIBUNAL
Neke had provided two statements. The first, dated 6 December 2011 which is annexed to the G-Documents (Exhibit R1), was written without any legal assistance following receipt of the Notice of Intention to consider cancelling his visa under s 501(2) of the Act dated 24 November 2011. In this statement, Neke said that he had run inns [sic] with the law over a span of 5 years dating from the time his ex‑girlfriend had an abortion. This was corrected to 3 years. A second statement dated 22 November 2012 and in the form of a statutory declaration, further attested to courses that he had completed since his transfer to Port Phillip Prison in April 2012 and the great benefit he had derived from his time in the Youth Unit and in his role as a mentor.
In his evidence before the Tribunal, Neke reiterated the contents of his statements and described himself as a different person in terms of his maturity and self-confidence. He was unable to recall the exact details of each of his offences, these having been committed under the influence of illicit drugs. His evidence otherwise has been summarised under Background. He told the Tribunal that on two occasions after he had committed robberies, he felt so bad that he put half the money he had stolen into a charity bin at McDonalds.
Ms Anne Hooker
Ms Hooker provided a statement dated 10 December 2012 (Exhibit A3). Ms Hooker has been the Youth Development Officer at Port Phillip Prison for 14 years. Prior to this, she was a Parole Officer and eventually a Manager of Community Corrections within Corrections Victoria. She had been appointed to her role as Youth Development Officer at Port Phillip Prison in order to design and facilitate a suicide and self-harm prevention unit for young offenders aged between 18 and 25 years who were first-timers in adult custody. As previously stated, she regarded Neke’s involvement in the Youth Unit to far exceed any expectations.
Ms Hooker described Neke as enthusiastically seeking to complete as many programs as possible. Following training, he was appointed to the position of prison mentor with the care of 10 young offenders. In doing so, he was described as demonstrating a level of maturity and understanding that is viewed in high regard by both prisoners and the Correctional Officers alike. She regarded Neke as having certain qualities and characteristics that made him genuinely unique in the prison system. He was hard‑working and diligent, polite and well-mannered in both his dealings with officers and prisoners. Ms Hooker regarded Neke as having natural leadership skills and that he was determined to make a life free of reoffending.
In her evidence before the Tribunal, Ms Hooker said this was only the second time in her long association with Correctional Services that she had given evidence before a court or tribunal in support of a prisoner. She confirmed that prior to Neke obtaining parole, a community correctional officer would have prepared a report and such a person would have come from the service COATS. Unlike other prison workers, Ms Hooker has the authority to retain contact with prisoners after they are released. The young men who have been in her unit can contact her at any time if they need further assistance.
Mr Eteuati asked Ms Hooker if she had any qualifications other than her extensive experience. She said she had completed nine-tenths of a Bachelor of Arts Degree majoring in psychology and sociology. She had abandoned the course with only one subject left to be completed. The Tribunal asked Ms Hooker if she could provide any information on the recidivism rate for prisoners that had occupied the role of mentor. In reply, she referred to a study that had just been completed by Professor Trotter of Monash University, on the rate of recidivism in the Youth Unit at Port Phillip Prison in comparison to youth in other prisons which showed that their rate was 10 per cent less than the control group. As this paper is yet to be peer reviewed or published, the Tribunal does not intend to give it any weight. The Tribunal did ask how many of those who had been mentors had reoffended. To Ms Hooker’s knowledge, there had been 15 or 16 mentors in the Youth Unit and only one had reoffended. Ms Hooker considered that Neke had made progress while he was in Marngoneet but on his arrival in the Youth Unit he remained shy and was afraid to talk and really discuss the issues he was having. Once he realised that he was in a safe place that was not judgemental and that the staff were there to guide and help him, he apparently blossomed.
Mr and Mrs Wirihana
Neke’s parents provided statements in support of this application and where relevant this has been summarised in the Background to the application. Mr Wirihana, Neke’s father, admitted that he had abused alcohol in New Zealand, smoked marijuana regularly in his son’s presence and had on occasion (when under the influence of alcohol) hit Neke. He denied that Neke had left home describing him as staying with his drug friends and girlfriend, who was also a drug user, for five days and then returning home for the weekend which he spent sleeping. He, his wife and their older children had tried to talk to and advise Neke about his drug use but he just would not listen to them.
The entire family had noticed a huge difference in Neke as a result of his imprisonment and Mr Wirihana both thanked and praised Corrections Victoria for this change. Mr Wirihana noted that while Neke had expressed remorse for the victims of his armed robberies and his deeds in general, he had only recently voiced remorse for those people he had actually introduced to drug use.
In addition to her statement, Mrs Wirihana informed the Tribunal that during Neke’s parole period imposed by the Children’s Court in January 2010, she had endeavoured to obtain help in drug counselling but to no avail. They had been referred back to the parole officer who had not requested such counselling. Mrs Wirihana corrected the impression Neke had given when interviewed by Dr Cunningham, psychologist, in 2010, stating that she only drinks alcohol socially and very rarely and has never used drugs.
Both parents are employed. The father has been a forklift driver for Coca Cola Amatil since his arrival in Australia and Mrs Wirihana works as a store packer and has done so for the past 18 months. Their daughter Taane is employed by the same company as her mother as a packer. Tyson is a forklift driver.
The Siblings
Tyson who is 18 and Taane who is 19, provided statements in support of their brother, Neke and gave evidence regarding the marked change in his level of maturity and self‑confidence and his now strong opposition to drug use. They also spoke of the negative effect his deportation would have on the family unit.
Mr Algernon Taylor
Mr Taylor is Neke’s half-brother. In his evidence, he outlined the contacts he has in his occupation as a spray painter and that he had discussed employing Neke with his boss should his visa be restored. While no favours would be given, he would be considered for employment via the agency the spray painting company used once an application had been lodged. Mr Taylor had himself migrated to Australia one year ago in order to escape the gang culture in the Maori and Pacific Islander population and to avail himself of greater employment opportunities. He lives with the Wirihana family in Truganina.
Mr Rory Ford
Mr Ford is a graduate in psychology with a Masters of Applied Social Science and has been a Forensic Sector Counsellor working in the areas of substance abuse, family violence, sexual offending and anger management for twelve years. He works on a contractual basis with COATS where he conducts drug and alcohol assessments for the Adult Parole Board. He assessed Neke on 10 December 2012 at the Maribyrnong Immigration Detention Centre. The history obtained from Neke was as previously reported although once again, he stated that both of his parents had been users of alcohol and cannabis in New Zealand and that this had created an unstable home life until they relocated to Australia.
Mr Ford submitted Neke to a psychiatric diagnostic screening questionnaire as a means of assessing various Axis I psychiatric disorders. Neke’s score of 17 placed him in the low range of psychiatric symptoms compared to other clients seen in similar clinical settings. He was experiencing some stress in anticipation of his hearing before this Tribunal. Neke also admitted to having continuing symptoms concerning two fatal accidents he had witnessed in 2009, one in which a motorcyclist had crashed and was decapitated and another where a man was killed when he fell from a building. Neke was able to work through these concerns via the counselling provided to him during his prison term. In his role as a COATS assessor, Mr Ford advised that a referral for alcohol and drug counselling would be organised as a condition of Neke’s parole on release. In Mr Ford’s opinion, if Neke was permitted to remain in Australia his risk of re-offending would be low (Exhibit A9 & A10).

Mr Ford said that Neke’s drug use was a self-coping mechanism precipitated by his partner having the abortion without consulting him and his viewing of two fatal accidents. Mr Ford did not accept that should Neke experience such traumatic events in the future, he would again resort to drug taking, given the number of courses he had taken, the support of his family, his desire to find employment and his ability now to recognise the boundaries needed to be placed between himself and his former drug using associates or friends. In contrast to the majority of young offenders Mr Ford had assessed, Neke had engaged well in all treatment programs and rather than repressing or denying the origins of precipitating events, he had learned to explore these and deal with them.
In his experience, Mr Ford found that rehabilitation was more likely to be successful in young prisoners than adults. Mr Ford believed it was a hugely relevant and significant factor that as Neke is now drug free, his family’s support efforts would most likely be successful despite their failure in the past. Mr Ford considered the length of Neke’s parole period was a further protective factor, in that he has two years and three months of parole during which time he would be reporting regularly, undergoing drug and alcohol counselling and possibly drug testing. Mr Ford did not know the exact details of the parole.
Mr Ford was reluctant to comment on the results of Dr Cunningham’s application of a test entitled, Historical Criminal Risk Scale (HCR-20) as he himself did not use that particular test and the results would no longer be valid given the passage of time and the intervening rehabilitation treatment Neke had received. Mr Ford was also of the opinion that a lengthy period of parole acted as a deterrent because if and when a parolee reoffends they would have to serve both the remaining time of their parole period, in addition to any sentence for their reoffending crime.
DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL
Statutory Declarations and letters of support where received from Neke’s younger siblings Niamh, Hana-Mae and Sky and from more distant relatives. Mrs Vicki Holmes who has known Neke since he was 15 years old and is apparently a member of the Parole Board in Frankston, wrote in his support, stating her belief that Neke would prove to be worthy of the opportunity to remain in Australia (Exhibits A11 to A16).
Report of Dr Aaron Cunningham
Dr Cunningham performed a psychological assessment of Neke prior to his sentencing in the County Court of Victoria. The report is dated 15 November 2010 (Exhibit A2). In this interview, Neke described both of his parents as drug addicts and his father as an alcoholic who had reformed and stopped drinking in 2009. He described his mother as the best mum you could ever have. In New Zealand the family had lived in the Hawkes Bay area where the Mongrel Mob gang had originated. Neke reported viewing stabbings and physical violence throughout his childhood. The history obtained by Dr Cunningham was otherwise as previously recorded. Dr Cunningham considered that Neke had insight into the negative impact of his drug use on his family and reportedly said that he had to leave the past and go back to his parents. Neke considered his parents’ own abstinence from drugs as a motivation for change.
Dr Cunningham diagnosed a substance use disorder. He considered Neke to be psychologically and physiologically reliant on amphetamines prior to his incarceration. There were also symptoms of a low-grade depression meeting the requirements of diagnosis of Dysthymic Disorder. These symptoms were described as a chronic low‑level mood state with feelings of worthlessness and loneliness.
Dr Cunningham performed a WASI intelligence test which revealed a significant difference between Neke’s verbal and nonverbal reasoning. Neke performed slightly better in the nonverbal rather than verbal intelligence items. However, there was no indication of intellectual disability. Dr Cunningham also administered what is called the HCR-20 to access Neke’s risk of future violent offending. This measures 20 indicators which have been found to correlate with violent recidivism within forensic psychological research literature. On the basis of this test, Dr Cunningham advised that there was a low to moderate risk of violent reoffending. On the positive side, Neke had shown insight into his risk factors and was motivated to change. Neke did tell Dr Cunningham of his actions in placing much of the money he stole in the Ronald McDonald’s charity bin as he regretted his offensive behaviour and began feeling low and sick.
At the time of the assessment, Dr Cunningham found Neke displayed significant remorse for his offending behaviour and considered this remorse was in excess of what would be expected for someone of [Neke’s] age. Dr Cunningham regarded Neke’s prospects for rehabilitation to be promising given appropriate support and engagement.
The Sentencing Remarks of Judge Gucciardo, County Court of Victoria on 3 December 2010 (G2, Annexure B)
Neke had pleaded guilty to the indictment containing 13 charges. In his sentencing, Judge Gucciardo dealt with each of these offences noting that all had occurred within a period between April and August 2010. The Judge also addressed the two victim impact statements which had been tendered. The Judge regarded the offending as very serious and that the community and law expect that any sentence will address general deterrence. He also referred to Neke’s age and said that his youth and the possibility of rehabilitation of young offenders was a significant consideration, as was Dr Cunningham’s finding of a low to moderate risk of violent reoffending. His Honour’s concluding remarks have been recorded above under Background and were regarded by counsel as being a most unusual step for a judicial officer to take.
LEGISLATION
Section 501(2) of the Act empowers the Minister to cancel a visa granted to a person if the Minister reasonably suspects the person does not pass the character test s 501(2)(a) and the person does not then satisfy the Minister that he or she passes the character test (s 501(2)(b)).
The character test is defined in s 501(6) of the Act which provides that a person will not pass the character test if the person has a substantial criminal record. Section 501(7) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
The Minister is empowered under s 499(1) to give directions to a person or body performing functions or exercising powers under the Act and with which that person or body must comply s 499(2A).
On 25 July 2012 the Minister revoked Direction 41 and issued Direction No 55 Visa refusal and cancellation under s 501 (Direction 55). Direction 55 came into effect on 1 September 2012 and is therefore relevant to this matter.
In broad terms, Direction 55 is divided into sections entitled objectives, general guidance, principles, exercising the discretion, primary considerations for visa holders and other considerations.
Direction No. 55 Visa Refusal and cancellation under s501
...
6.3 Principles
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. 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)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(4)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct 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)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(6)The length of time a non-citizen has been making a positive contribution to the 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.
…
Section 2Exercising the Discretion
7.How to exercise the discretion
(1)Informed by the principles in paragraph 6.3 above, a decision-maker:
a)     must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; and
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.
8.Taking the relevant considerations into account
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case, noting that there are differing considerations for visa holders and visa applicants as articulated in Parts A and B. Separating the considerations for visa holders and visa applicants recognises that persons holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal or cancellation of the visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
PART A
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.
9.1      Protection of the Australian community
(1)When considering 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.
9.1.1The nature and seriousness of the conduct
(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;
...
d)     The principle that any conduct that forms the basis for a finding that a person does not pass the character test under s501(6)(b) or (d), or is not of good character under s501(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);
...
9.1.2The risk to the Australian community should the person commit further offences or engage in other serious conduct
(1)In considering whether the person represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, 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).
9.2Strength, duration and nature of the person's ties to Australia
(1)Reflecting the principles at 6.3, decision-makers must have regard to:
a)     How long the person has resided in Australia, including whether the person arrived as a young child, noting 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.
9.3Best interests of minor children in Australia affected by the decision
(1)Decision-makers must make a determination about whether cancellation is, or is not, in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to cancel the visa is expected to be made.
(3)If 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.
(4)In considering the best interests of the child, the following factors must be considered where relevant:
a)     The nature and duration of the relationship between the child and the person. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
...
c)      The impact of the person's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)     The likely effect that any separation from the person would have on the child, taking into account the child's ability to maintain contact in other ways;
e)      Whether there are other persons who already fulfil a parental role in relation to the child;
f)      Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
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10.Other considerations - visa holders
(1)In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a)     Effect of cancellation of the person's visa on the person's immediate family in Australia, if those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely;
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c)      Impact of a decision not to cancel a visa on members of the Australian community, including victims of the person's criminal behaviour, and the family members of the victim or victims where that information is available and the person being considered for visa cancellation has been afforded procedural fairness;
d)     The extent of any impediments that the person 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:
i.The person's age and health;
ii.Whether there are substantial language or cultural barriers; and
iii.Any social, medical and/or economic support available to them in that country.
SUBMISSIONS
At the commencement of the hearing, Mr Gilbert conceded that Neke Wirihana did not pass the character test and that the only issue for the Tribunal was whether to exercise the discretion in s 501(2) to cancel his visa.
In his submissions, Mr Gilbert characterised the new Direction as placing a greater emphasis on the Principles compared to the earlier Direction, but despite this, the questions for the Tribunal remained, namely the nature and the seriousness of the crimes committed, the protection the Australian community and the consideration of the risk of Neke reoffending. He drew particular attention to the wording of paragraph 8(4) of the Direction which states:
Primary considerations should generally be given greater weight than the other considerations.
Mr Gilbert referred to the Federal Court decision in Schuster-McFadyen v Minister for Immigration and Citizenship (2011) 124 ALD 68 and submitted that the use of the term generally indicated that the Tribunal was not bound to give greater weight to the primary considerations over the other considerations.

Turning his attention to sub-paragraph 8(2) of Direction 55 which behoves the Tribunal to note information and evidence from independent and authoritive sources and to give them appropriate weight, Mr Gilbert submitted that the Tribunal should note the comments of Judge Gucciardo when sentencing Neke. The Judge had referred to Neke’s age, then 18, and the inexperience, vulnerability, immaturity and impulsiveness that accompanies youthfulness in the presence of a not fully formed cognitive framework. He said the rehabilitation of young offenders by the significant amelioration of sentences is a worthy policy. Neke’s youth plays a paramount role in this sentence.
At paragraph 26 His Honour said:
A positive factor is the level of insight and remorse displayed by you. You have some motivation for change by the example of your parents’ desisting from their abuse, but your history and your behaviour in 2010 must make prospects of rehabilitation somewhat guarded. However ... the support of your family in a culture where the role of elders and family connections is significant.
Mr Gilbert stressed His Honour’s comments to the family and to those who might in the future make a decision regarding deportation. At paragraph 61, he said:
... It is my sincere hope that assistance will be given to him so that he can rehabilitate himself away from drugs and into work and some positive future. It is always difficult to sentence a young man to imprisonment. Unfortunately his offending is of a pretty serious, very serious calibre. I think it is important you were in court and it is important that he continues to have your support, I am sure that he will.
At paragraph 62:
As to the issue of deportation, really it is something that is out of my hands and something that will be considered probably at the end of this period and I sincerely hope that it will not break up the family or his contact with his family here. I say that in open court in the hope that those who are making that decision can take that particular matter into consideration...
Mr Gilbert submitted that it was very significant and unusual that His Honour had directed such comments to those who might decide whether or not to deport Neke and that this should attract great weight in the balancing exercise.
In relation to 9.1.2 which relates to the risk to the Australian community should Neke reoffend or engage in other serious conduct, Mr Gilbert referred to clause 9.1.2(1)(b)(ii) which provides:
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence...
Mr Gilbert contended that Neke’s rehabilitation had been achieved but he could not meet the second leg of this clause given that his visa had been cancelled while he was still in prison.
Further on the question of risk to the Australian community, Mr Gilbert submitted that Dr Cunningham’s report, referred to in Judge Gucciardo’s sentencing remarks, indicated that Neke:
...has significant prospects for rehabilitation due to his age and the current prosocial influence of his parents. He presents a minimal offence history and significant insight, remorse and motivation for change ... (Exhibit A2)
Dr Cunningham concluded that:
... With appropriate support and engagement, his prospects for rehabilitation are promising.
Mr Gilbert contended that Dr Cunningham’s reference to a minimal offence history related not to the seriousness of the crimes committed, which it was agreed were very serious, but to the time frame in which the offences were committed. While Neke had committed a crime whilst a minor and was placed on probation for a period of nine months during which time he reoffended, all offences had occurred in a period of approximately eight months and during the period of heavy drug use.
Mr Gilbert submitted that in terms of assessing the risk to the Australian community of reoffending, the duration and terms of Neke’s parole is of major significance. He cited the decision of Senior Member Friedman in Re JSFD and Minister for Immigration and Citizenship [2009] AATA 734 wherein the facts were very similar to those of Neke Wirihana. JSFD was a New Zealand citizen of Maori ethnicity who arrived in Australia at the age of 16, in order to escape exposure to violence and a dysfunctional family environment and who, within a year of his arrival in Australia, had commenced using drugs and consuming alcohol to excess. In the company of others, he committed several offences, was convicted on nine charges and placed on a 12-month supervision order by the Children’s Court. While still under this order, he committed several armed robberies which involved his victims suffering serious physical injuries as well as psychological trauma. In all, he had been convicted of 40 offences. JSFD was incarcerated from April 2008 to June 2009 during which time he completed multiple courses and counselling. Prior to his detention by immigration authorities, JSFD had been on parole. During this time he attended meetings with his parole officer regularly, participated in drug and alcohol counselling and was said to have stayed away from former associates and co-offenders. In his application to the Tribunal, JSFD was supported, in terms of the exercise of the discretion in his favour, by the youth services that had assisted JSFD during this limited parole period.
In his decision Senior Member Friedman referred to the Tribunal decision in Re Glusheski and Minister for Immigration and Multicultural Affairs [2000] AATA 717 in which the Tribunal said at [28]:
If the decision under review is set aside, the applicant will continue to serve his additional term until such time as he is released on parole or until such time as that additional term expires. If he is released on parole, it will no doubt be on conditions of reporting and under conditions of supervision by a parole officer. It seems to me that if he is to be “reintegrated into society” through the good offices of his brother, he will be assisted as well by the supervision of a parole officer. If the community of New South Wales can rely on such supervision then, in my view, the Minister is entitled to be equally reliant.
Mr Gilbert relied on this reasoning in Re Glusheski.
In relation to the matter before this Tribunal, Mr Gilbert contended that it was both unusual and extremely relevant that Ms Hooker had expressed her willingness not only to come and give evidence before the Tribunal but to assist Neke personally during his term of parole should the discretion be exercised in his favour.
The decision in Re JSFD was appealed to the Federal Court on five grounds, none of which succeeded and the appeal was dismissed.
In relation to primary consideration 9.2, the strength, duration and nature of Neke’s ties to Australia, Mr Gilbert submitted that while Neke did not come to Australia as a young child, he was a minor, having arrived at the age of 14. He was also a minor when he began offending at the age of 16 (at paragraph 9.2(1)(a)). Mr Gilbert contended that while this was a negative factor, it should carry less adverse weight than it would if Neke had been an adult.
Mr Gilbert submitted that the second limb of the second primary consideration in paragraph 9.2, the strength, duration and nature of any family, social and/or employment links, interacts with the other considerations in sub-paragraphs 10(1)(a) and 10(1)(d) relating to the effect of cancellation on the person’s immediate family in Australia and the extent of any impediments that the person may face if removed from Australia to their home country. He further submitted that the family ties that existed in Australia were so strong that a decision to deport Neke to New Zealand would impact deleteriously on all members of the family. The family was prepared to relocate to New Zealand in the event that Neke was deported but for financial reasons this is no longer possible.
In response to Mr Eteuati’s suggestion that the family could keep in contact by telephone or Skype, Mr Gilbert contended that this does not provide the level of supervision that Neke would have if he remained in Australia. In addition, employment opportunities for Neke are far greater in Australia, particularly through the contacts effected through Mr Taylor and Mr Wirihana who have already made overtures to their employers with respect to employing Neke. In contrast, in New Zealand he has no such avenues open to him nor would he have the family support that he enjoys here. The family contacts he does have in New Zealand are likely lead him to an almost compulsory association with the gang culture.
Despite Mr Wirihana’s history of alcohol abuse and the social use of marijuana, both of which he readily admitted to, he remains supportive of his son and determined to assist him in obtaining employment and providing him with ongoing counselling now that Neke is open to receiving his advice. It was considered relevant that the adult family members are all in steady employment.
Mr Gilbert submitted that while Neke is not responsible for nor does he have any children, his position in the family impacts on his two younger siblings, now aged 10 and 12. Both of these siblings have provided statements as to the effect Neke’s deportation would have on them as individuals. Both parents have given evidence as to their fears that should Neke be returned to New Zealand, he would have difficulties obtaining employment and would be pressured into joining a gang, particularly those with which his paternal and maternal uncles are associated. Mrs Wirihana expressed her concerns strongly and said she would be prepared to visit New Zealand in an effort to try to prevent such an association but anticipated that she would be ineffective in preventing Neke’s almost compulsory recruitment by one or other gang.
Mr Gilbert contended that as Neke had never been made aware in writing of the consequences of further offending in terms of his migration status, such absence could not be considered to be in Neke’s favour (paragraph 9.1.1.(1)(i)).
The majority of Mr Gilbert’s submissions were made with reference to the decision of Senior Member Friedman in Re JSFD where in circumstances similar to this application, the discretion in s 501 was exercised in favour of JSFD and he was permitted to remain in Australia.
Mr Eteuati addressed the processes and interpretation of s 501 of the Act in general. He agreed with Mr Gilbert that the significant change in Direction 55 compared with its predecessor, Direction 41, was the emphasis on the protection of the community and whether risks will be tolerable. He stated this emphasis on the risk of harm was encapsulated in paragraph 6.2(1) under General Guidance which states:
The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens ...
Mr Eteuati also referred to sub-paragraph 7(1)(b) of Direction 55 which provides that when exercising the discretion, the decision-maker:
is required to determine whether the risk of future harm by a non-citizen is unacceptable.
In making a determination of the risk to the Australian Community, he submitted that the decision-maker must have regard to the considerations outlined in paragraph 9.1.2 which all reflect the Principles outlined in 6.3.
Mr Eteuati submitted that given the strong emphasis of Direction 55 on protecting the community and ensuring that the risk posed is reduced, the exercise of the discretion in the Neke’s favour would require strong countervailing factors. He referred the Tribunal to the principle in sub-paragraph 6.3(3) which provides that the harm that would be caused if criminal offending would be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable.
Mr Eteuati addressed the seriousness of Neke’s criminal conduct, already conceded to be very serious. Mr Eteuati dealt with all of the offences, five of which had been armed robberies or attempted robberies, three involved a threatening use of a knife and two, the use of a gun, albeit a fake gun. He noted that Neke had also been charged with possession of a sawn-off shotgun which was said to be held for self‑protection. Mr Eteuati drew the Tribunal’s attention to the impact statements made by two victims attesting to the psychological trauma they had suffered as a result of these robberies.
Referring to Judge Gucciardo’s sentencing comments regarding the potential rehabilitation of young offenders as being a significant ameliorating factor in the sentencing, Mr Eteuati contended that this pillar of the criminal justice system was not the purpose or aim of the Act. Despite the Judge’s comments in regard to ameliorating factors, he accepted the seriousness and evil nature of the offences and the dealing in illicit drugs, including the consequent harm this had caused to the community and individuals.
In relation to the requirement that the Tribunal determine the risk of future harm (paragraph 7(1)(b) of Direction 55), Mr Eteuati submitted that there had only been evidence of a noticeable change in Neke’s personality and outlook in the last seven months of his term of imprisonment when he was held in the Youth Unit at Port Phillip Prison. It was contended that despite the large number of courses Neke had undertaken, these were all of short duration, for example, Youth, Drugs and Anger was 12 hours.
Mr Eteuati, accepted that Neke had the unreserved support of his family but contended this had always been the case and particularly so when he became drug addicted and committed the multiple criminal offences despite his parents’ efforts to dissuade him. Reference was also made to Neke’s upbringing in New Zealand, his father’s history of alcohol abuse and his use of marijuana as recently as eight weeks prior to the hearing.
Mr Eteuati questioned the weight that the Tribunal could place on the recidivism figures revealed by Professor Trotter’s study, particularly as it has not yet been reported. However, in the context of Ms Hooker’s evidence and her experience with the program, he referred to the recidivism rate of 33 per cent and submitted that this was an unacceptable risk as would be a rate of 10 per cent. Given the seriousness of Neke’s crimes, only a zero risk of reoffending should be tolerated.
Mr Eteuati submitted that in considering the best interests of minor children in Australia (paragraph 9.3 of Direction 55), it was clear that Neke had no primary responsibility as a parent. Neke has two young sisters who have both expressed their desire that he remain in Australia and their esteem for their brother. Mr Eteuati submitted that this is a relevant consideration, albeit of low weight.
As Neke had arrived in Australia at age 14 and his criminal offences were committed in 2009 to 2010, coinciding with his period of drug abuse, Mr Eteuati contended that Neke’s positive contribution to the Australian community was minimal. He argued that in terms of paragraph 9.2(1)(a) of Direction 55, the strength, duration and nature of a person’s ties to Australia, Neke’s ties were limited and could not weigh in his favour to any extent.
Mr Eteuati acknowledged Neke’s strong family ties in Australia but contended that on the evidence, social and/or employment links were weak (9.2(1)(b)).
It had been agreed by the parties that there were no International non-refoulement obligations attracted in this matter (paragraph 9.4 of Direction 55).
In relation to paragraph 10, the other considerations, Mr Eteuati acknowledged the close family ties and Neke’s younger siblings’ desire for him to remain in Australia. However, he contended that there were few impediments to Neke’s return to New Zealand (paragraph 10.1(d) and argued that Neke is young and healthy and would not encounter language or cultural barriers if deported to New Zealand. Despite the evidence of Mrs and Mr Wirihana regarding the New Zealand gang culture and the likelihood of Neke being forcibly recruited into a criminal gang, it was contended that New Zealand is a large country and Neke could reside outside the Hawkes Bay region, in an area free of gang culture and where he is not known. While acknowledging that Neke presented as sincere in his efforts to change and his desire and intent to adopt a drug and crime free lifestyle, Mr Eteuati argued that the risk of reoffending remained.
In response, Mr Gilbert submitted that the test to be applied was one of unacceptable risk, not no risk. Had the test been no risk, this matter would not have been reviewable. In relation to paragraph 10(1)(c) and information regarding how a Tribunal decision in the applicant’s favour would impact on the victims of his crimes, Mr Gilbert stressed that no such information had been provided by the Minister and was not a matter for consideration by the Tribunal.
TRIBUNAL’S DELIBERATIONS
The Tribunal is required by s 499(2A) of the Act to apply Direction 55 in exercising its discretion as to whether Neke Wirihana’s visa should be cancelled.
There are six Principles underlying Direction 55 as previously outlined. Those of greatest impact in this matter are sub-paragraphs 6.3(2), (3) and (6) which state:
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(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)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
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(6)The length of time a non-citizen has been making a positive contribution to the 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.
In exercising the discretion, the Tribunal is informed by the Principles and is directed in sub-paragraph 7(1)(b) as follows:
[a decision-maker] 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.
The terminology used is clear. The Tribunal must determine if the risk of future harm is unacceptable and in doing so, perform a balancing exercise is order to decide if any risk of future harm should be tolerated by the Australian community.
There is no question that Neke fails to fulfil the character test or that his criminal offences were of a very serious nature and resulted in psychological trauma to at least two victims. He conceded these matters in the same way that he admitted to all the offences when first interviewed by the Frankston police on 12 August 2010 and subsequently pleaded guilty to 13 offences before his sentencing by Judge Gucciardo in the County Court on 3 December 2010.
At the time of sentencing, Neke had already expressed his remorse and in the course of commission of the offences he had, on two occasions, become so dejected and disgusted with his actions that he deposited half his illegal takings in a McDonald’s charity bin.
The pre-sentencing psychological assessment by Dr Cunningham acknowledged both the severity of the criminal offences and that they occurred in order to fund Neke’s drug abuse. Dr Cunningham identified the precipitating factor for Neke’s escalating drug abuse as being his partner’s abortion of their “child” without consulting Neke. It is said that abortion is not accepted in the Maori culture.

Mrs and Mr Wirihana’s efforts to deter and correct Neke’s drug abuse and criminal behaviour fell on deaf, drug affected ears and perhaps to a degree, were not heeded given the example of his father’s history of alcohol abuse and regular use of marijuana. The Tribunal accepts, in the absence of independent evidence to the contrary that Neke’s upbringing prior to 2006 was less than ideal; that he was exposed to the drug culture and criminal activities of his uncles who are members of gangs and that his father, when drunk, physically assaulted him. The Tribunal does not accept that his mother was an alcoholic or a drug user. Neke has rescinded comments he made to Dr Cunningham in 2010 and Mrs Wirihana has on Oath denied them. Her husband affirmed her evidence. Mrs Wirihana is strongly opposed to drug use, drinks alcohol only occasionally and deplores the gang culture present in New Zealand.
Neke has attributed his incorrect statement to Dr Cunningham to his confused mental state following the abrupt cessation of his previously daily use of methamphetamines and cocaine following his arrest. However, the Tribunal notes that Mr Ford in his 2012 report used the plural in reference to parental drug use.
Neke’s parents have acknowledged their complete failure to deter Neke from continuing on a path of drug abuse and criminal offending and have praised and thanked Victorian Correction Services for achieving the reformation of Neke’s character which has not only enabled them to discuss his problems with him but he now also accepts their advice.
The family is very close knit. They all, including the adult children, reside in the same house and this family closeness appears to be a feature of Maori culture. The family appears determined not only to welcome Neke back into this family life but to support him unconditionally. Both Mr Wirihana and Mr Taylor, Neke’s half‑brother, have already made enquiries of their employers to facilitate Neke’s employment. All adult members of the family are in steady employment. Mr Wirihana has worked for the same company since his arrival in Australia in 2006.
The family has reversed its earlier decision to return to New Zealand in the event that Neke is deported. They have done so for financial reasons. Although their financial circumstances are unknown to the Tribunal, no evidence has been lead that financial considerations would impact on the family’s intent to support Neke in the event that this application was successful. Mrs Wirihana did express a desire or intent to go to New Zealand on a very short term basis to at least attempt to prevent any family gang members approaching Neke. She has acknowledged that her chances of success would be negligible.
The comments made by His Honour Judge Gucciardo are of considerable significance in the exercise of the discretion by this Tribunal. His Honour considered the criminal offences to which Neke had pleaded guilty to be of a very serious calibre and addressed each offence in detail. His Honour stated that the maximum sentence for armed robbery was 25 years; for robbery 15 years and that handling and trafficking drugs of dependence carried a 15 year maximum sentence. He then considered the ameliorating circumstances and factors that lead him to impose a sentence of 54 months with a non‑parole period of 27 months. The ameliorating factors His Honour addressed were:
·Neke’s age and his accompanying inexperience, vulnerability, immaturity and impulsiveness, not a fully formed cognitive framework which is still developing;
·the criminal justice policy relating to the rehabilitation of young offenders, although he tempered this in Neke’s case by stating that his prospect for rehabilitation should be considered guarded;
·the support of family in a culture where the role of elders and family connections is significant;
·Neke’s insight into his offences and his displayed remorse;
·while Neke’s drug use provided an explanation for his behaviour, it did not diminish his moral culpability but does mitigate the sentence only slightly;
·Neke’s plea of guilty and co-operation with the police, including information given to them of his involvement in offences he had not been suspected of and some information he gave regarding trafficking;
·Dr Cunningham’s assessment of the risk of reoffending as being low to moderate; and
·Neke’s expressed remorse and sympathy for his victims.
His Honour’s comments after sentencing, which were addressed to the family and to those making any future decisions regarding deportation, were an unusual practice but clearly conveyed his sincere hope that Neke would be rehabilitated and that the family would thereafter, remain intact and supportive.
Mr Gilbert has correctly, in the Tribunal’s opinion, stressed the benefit of a relatively long parole period of two years and three months, should the Tribunal exercise the discretion in Neke’s favour. Both the terms of his parole, although not known in absolute detail, and Ms Hooker’s agreed participation, when needed, to assist Neke, should impact positively on his further rehabilitation and reduce the risk of reoffending.
The purpose of the Principles contained in Direction 55 is essentially the protection of the Australian public from criminal behaviour or other serious conduct perpetrated by non-citizens granted the privilege of resident visa status, unless the risk of re‑offending is found to be so low as to be acceptable. The decision-maker is required to determine whether the visa holder is of good character as defined and if not, whether there are other considerations which outweigh or, are on balance, such that the Minister’s decision to cancel an individual’s visa is not the correct or preferable one.
Primary Considerations
9.1 Protection of the Australian community
9.1.1 The nature and seriousness of the conduct
The charges against Neke have been detailed in paragraph 11 of these Reasons and all are extremely serious, in particular those of armed robbery involving the use of a knife and a gun, albeit a fake gun and his trafficking of amphetamine. This has already been addressed in part. Neke does not pass the character test because of his substantial criminal record that attracted a sentence to imprisonment for 54 months for these very serious criminal offences committed over a five month period, for the purposes of funding his drug dependence.
There is no evidence that Neke was formally warned in writing about the consequences of further offending on his migration status. In any event, this consideration is of no relevance in the exercise of the discretion.
9.1.2 The risk to the Australian community should the person commit further offences or engage in other serious conduct
In the event that Neke’s visa status is restored and he re-offends, it is clear that harm to the Australian community would ensue, both in terms of psychological and perhaps physical trauma to any victims, should he again commit armed robberies. More widespread and arguably deleterious effects could or would follow any further dealing and/or trafficking of illicit drugs. These possibilities weigh heavily against the restitution of his visa status. However, based on the information and evidence, the Tribunal finds that Neke’s risk of reoffending is low and does not pose an unacceptable risk of harm to the Australian community.
In November 2010 (Exhibit A2), Dr Cunningham diagnosed a substance use disorder and a dysthymic disorder which in his opinion would resolve if Neke was offered appropriate intervention and community support or in the event of his imprisonment was effectively rehabilitated. Dr Cunningham assessed Neke’s risk of violent reoffending as low to moderate. Judge Gucciardo placed some reliance on this opinion in determining the period of imprisonment and parole.
Mr Ford assessed Neke after his release from prison and during his detention at the Maribyrnong Immigration Detention Centre. He was aware of Neke’s rehabilitation efforts in the Youth Unit at Port Phillip Prison and the progress he had made. He assessed Neke’s risk of reoffending as low.
The most persuasive evidence before the Tribunal is that of Ms Hooker who displayed a degree of gravitas and authority that would be difficult to challenge by prisoners and this Tribunal alike. The persuasiveness of Ms Hooker’s evidence is based on her 14 years of experience in the Youth Unit at Port Phillip Prison, a role to which she was originally appointed to design and facilitate that unit, and her obvious devotion to the unit’s success in terms of outcome. She described Neke’s involvement in the Youth Unit as far exceeding her expectations. Neke had shown his willingness to participate and his genuine care and concern for the 10 prisoners allocated to him as a prison mentor, readily accepting a high degree of responsibility.
Ms Hooker detailed the numerous courses Neke had undertaken while in prison, all of which had been relevant to his offending, his drug addiction and his immaturity. Ms Hooker described Neke as having qualities and characteristics that made him genuinely unique in the prison system. He was hard working and diligent, polite and well-mannered to both officers and prisoners. She stated Neke had natural leadership skills, belief in the programs and willingness to support newcomers to the unit and this was evident to all around him. In his role as a prisoner mentor, Neke’s confidence had grown, his belief in himself had resurfaced and his determination to make a life, free of reoffending was evident to all who came in contact with him. Ms Hooker described Neke’s communication skills, his ability to adapt to varying situations and individuals and his conviction in what he said, as being admirable.
In her evidence before the Tribunal, Ms Hooker expressed her willingness to continue to advise Neke and help him during his period of probation. She has numerous contacts in the community and correction services which could be activated. In response to a question posed by the Tribunal, Ms Hooker advised that of the 15 or 16 prisoners who have been elevated to the position of Prison Mentor at the Youth Unit only one has reoffended.
As Ms Hooker is the only individual who has had daily contact with Neke in the seven months prior to his release on parole and given her experience as the Youth Development Officer at Port Phillip Prison, the Tribunal places great weight on her opinion.
The Tribunal does not accept Mr Eteuati’s submission that seven months in this unit is insufficient time to ensure that Neke’s risk of reoffending is now at an acceptable level.
I am satisfied that Neke poses minimal risk of harm to the Australian community and the second limb to the first primary consideration weighs in Neke’s favour.
9.2 Strength, Duration and nature of the person’s ties to Australia
Neke is aged 20 and he arrived in Australia at the age of 14. Therefore, most of his life has been spent in New Zealand. Although he did not arrive here as a young child, to use Judge Gucciardo’s words, he did not have a fully formed cognitive framework. Given his age, he had little time to spend contributing positively to the Australian community. His employment record between the ages of 15 and 18 is patchy in that he had three different unskilled jobs during this period, although he did commence an apprenticeship in roof tiling. His work performance and record was obviously interfered with by his drug abuse, although he appears to have had few problems in obtaining employment, his difficulties lying in retention of that employment. Little positive weight can be given to these factors given the occurrence of offending within 3 years of his arrival.
Paragraph 9.2(1)(a) of Direction 55 requires me to consider the strength, duration and nature of any family, social and employment links with people who have a right to remain in Australia. Neke’s immediate family, including his parents and four siblings, all reside in Australia and have an indefinite right to remain here. The family links are strong and on the evidence, it appears that the family has become much closer as a result of Neke’s incarceration. Mrs Wirihana said the she and her family moved from Frankston to Truganina to be closer to her son. She and her husband have secure employment and if Neke is permitted to remain in Australia, he will live in the family home.
In addition to his immediate family, most of Neke’s extended family is also residing in Australia, including an aunty, 7 nieces and nephews, and at least 15 cousins.
Neke’s prospects for employment are promising, given the efforts his father and half-brother have already made on his behalf to ensure that he gets a job should he be allowed to stay in Australia. All adult members of the Wirihana family have full-time jobs and his father has been employed in the same position since his arrival in Australia.
Neke has strong family ties in Australia and this consideration weighs in his favour.
9.3 Best interests of minor children in Australia affected by the decision
Neke does not have any children and the only minors that might be considered under this primary consideration are his two younger sisters who are now aged 12 and 10. Both Hana-Mae and Sky have expressed their wish that their brother remain in Australia as part of their family unit. Both girls have visited their brother in prison on a regular basis. While the Tribunal acknowledges the importance of the family unit in Maori culture, the weighting effect of Hana-Mae’s and Sky’s statement and their devotion to their brother and reliance on his presence in the family carries only slight weight in favour of Neke because of the non-parental nature of the relationship.
The principle consideration relating to international non-refoulement obligations is not relevant in this matter.
10. Other Considerations – visa holders
The deleterious effect of cancellation of Neke’s visa on his immediate and extended family in Australia has been attested to by his parents, his siblings and Neke himself. The importance of family in Maori culture has been stressed. This consideration was addressed by Judge Gucciardo in his sentencing comments. Throughout his imprisonment, Neke has been visited by all members of his immediate family on a regular basis and they have even gone to the extreme of shifting their place of residence some 60 kilometres from Frankston to Truganina in order to be closer to their son while he was in prison. The Tribunal accepts this was not the sole reason for their relocation to Truganina but it was certainly the major one. There is no evidence of any impact on Australian business and no evidence has been produced to the Tribunal regarding any impact on former victims or their family members resulting from a decision not to cancel the visa (sub-paragraph 10(1)(c) of Direction 55).
Extensive evidence has been presented in regard to impediments or more correctly serious negative outcomes impacting on Neke should he be removed from Australia and returned to New Zealand. His age, health and language do not present a barrier. Similarly, there is no cultural barrier in that he is of Maori origin but it is the culture that exists in much of the Maori population that is hazardous. The structure and criminal behaviour of Pacific Islander and Maori members of various gangs has been outlined in detail and the particular hazards that could confront Neke, relate to his parents’ siblings’ membership of rival gangs. While gang activity is more prevalent in the north island and particularly in Hawkes Bay, Neke’s mother has given evidence that it is present throughout New Zealand and that these gangs are reliant for their survival on attracting very young members from the Maori population. Neither parent believes Neke could avoid contact with these gangs and given his uncles’ involvement, he would be commandeered into joining either the Mongrel Mob or Black Power.
The only close relative Neke has in New Zealand is his elderly grandmother who, it is said, would not be capable of providing the supervision or support that Neke would require. All adult members of the Wirihana family present in Australia are of the opinion that Neke would be forced to join a gang in New Zealand and in turn forced into criminal activity.
CONCLUSION
The decision of the Minister’s delegate to cancel Neke’s visa, based on the information then available to him, was both fair and reasonable. Unlike the delegate, this Tribunal had the benefit of further information and importantly, the oral evidence of family and welfare professionals. Having regard to the evidence and the considerations prescribed in Direction 55, I am satisfied that Neke’s visa should not be cancelled. I acknowledge the serious nature of Neke’s conduct and the potential harm that the Australian community may be exposed to if he reoffends. However, his offending took place within in a short period of time during his later teenage years and was precipitated largely by his drug addiction and his girlfriend’s abortion. I am satisfied that Neke is now reformed and poses a minimal risk that is not unacceptable in the circumstances.
Neke gave evidence about his rehabilitation which was reinforced by Mr Ford and Ms Hooker, he expressed remorse and insight into his criminal behaviour and his determination to succeed in life was apparent. Upon release, he will have the benefit of his family’s support and the 27 months of probation with its attendant supervision, counselling and drug testing which will act as a further deterrent.
By allowing Neke to remain in Australia, he will have the benefit of strong family ties and the support necessary to re-establish his life, secure employment and refrain from the criminal activity that lead to his imprisonment. The family unit will remain intact and the emotional distress of separation will be avoided. In contrast, if his visa is cancelled and he returns to New Zealand, in the absence of support, he risks exposure and recruitment to the gang culture and significantly, his rehabilitation may be compromised.
The considerations in Direction 55 have lead me to conclude that the discretion in s 501(2) of the Act should be exercised in Neke’s favour. Accordingly, the Tribunal sets aside the reviewable decision and in substitution decides that Neke’s visa should not be cancelled.

I certify that the preceding 121 (one hundred and twenty -one) paragraphs are a true copy of the reasons for the decision herein of

..................................[sgd]......................................
Associate
Dated 21 January 2013

Date(s) of hearing 13-14 December 2012 and 10 January 2013

Counsel for the Applicant Mr G. Gilbert

Solicitors for the Applicant Carina Ford Lawyers

Counsel for the Respondent Mr T. Eteuati

Solicitors for the Respondent Clayton Utz
ANNEXURE
For the Applicant:
•Statement of Nekewhenua Snakie Wirihana sworn on 22 November 2012 – Exhibit A1
•Dr Aaron Cunningham (psychologist) Report dated 5 November 2010 – Exhibit A2
•Statement of Ms Anne Louise Hooker dated 10 December 2012 – Exhibit A3
•Handwritten statement of Mr Erueti Wirihana (undated) – Exhibit A4
•Statutory declaration of Michelle Wirihana dated 22 November 2012 – Exhibit A5
•Statement of Tyson Wirihana dated 22 November 2012 – Exhibit A6
•Statement of Taane Wirihana dated 22 November 2012 – Exhibit A7
•Undated and signed statement of Mr Algeinon Taylor – Exhibit A8
•Report of Mr Rory Ford dated 10 December 2012 – Exhibit A9
•Mr Rory Ford’s Curriculum Vitae – Exhibit A10
•Statutory declaration of Niamh Hana in supported dated 22 November 2012 – Exhibit A11

•Letter in support from Hana-Mae Wirihana dated 20 November 2012 – Exhibit A12
•Letter in support from Sky Wirihana dated 20 November 2012 – Exhibit A13
•Letter in support from Vicki Holmes dated 14 November 2012 – Exhibit A14
•Letter in support from Soriah Waikato and Stormy Pineaha – Exhibit A15
•Letter in support from Sonny-Boy Pineaha – Exhibit A16
•Recent rehabilitation and personal development programs completed by the applicant – Exhibit A17
•Media release by Chris Bowen MP, Minister for Immigration and Citizenship new Ministerial Direction – Exhibit A18
For the Respondent:
•G-documents – Exhibit R1

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/4948
Re	Nekewhenua Wirihana
APPLICANT
And	Minister for Immigration and Citizenship
RESPONDENT

Tribunal	Miss E A Shanahan, Member
Date	10 January 2013
Place	Melbourne

Court	Date	Offence	Court Result
Melbourne County Court	03 Dec 2010	Armed Robbery	Imprisonment 2 years.
Armed Robbery (3 Charges) Traffick Amphetamine	On each count, Imprisonment 2 years. 1 year 8 months of each count concurrent and concurrent.
Attempt Armed Robbery	Imprisonment 18 months. 14 months of sentence concurrent.
Melbourne County Court (cont)	03 Dec 2010	Prohibited Person Possess A Firearm Handle/receive/retention Stolen Goods	On each count. Imprisonment 1 year. 11 months of each count concurrent and concurrent.
Robbery	Imprisonment 1 year. 10 months of sentence concurrent. To pay compensation $2,420.50
Attempt Robbery	Imprisonment 9 months. 7 months of sentence concurrent.
Intentionally Damage Property	Imprisonment 6 months. 5 months of sentence concurrent. To pay compensation $2,420.50
Handle/receive/dispose Of Stolen Goods	Imprisonment 6 months. 4 months of sentence concurrent.
Knowingly Deal With Proceeds of Crime Assault Police On Duty Escape From Custody From Police Member	On each: Imprisonment 1 month. Concurrent.
Frankston Children’s Court	28 Jan 2010	Armed Robbery Theft From Motor Vehicle (4 Charges)	Without conviction, the accused is placed on probation for a period of 9 months to 27/10/2010.

Date(s) of hearing	13-14 December 2012 and 10 January 2013
Counsel for the Applicant	Mr G. Gilbert
Solicitors for the Applicant	Carina Ford Lawyers
Counsel for the Respondent	Mr T. Eteuati
Solicitors for the Respondent	Clayton Utz