Niuia and Minister for Immigration and Citizenship

[2008] AATA 534

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 534

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/1686

GENERAL ADMINISTARTIVE DIVISION		)
Re		BAMBRIDGE NIUIA JNR

Applicant

And  MINSTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal  Ms N P Bell, Senior Member

Date 26 June 2008

Place Sydney

Decision  The decision under review is set aside and instead the Tribunal decides that Mr Niuia’s visa should not be cancelled.

.......................sgd.......................

Ms N P Bell
  Senior Member

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – visaex (on-shore visa cancellation) – cancellation of  visa on character grounds – criminal conduct - protection of Australian community – seriousness and nature of conduct – likelihood of conduct being repeated – interests of the child - decision under review is set aside.

Migration Act 1958: s 499, s 500,s 501, 501(1)(b), 501(6), 501(7) (c), 501 (2)

OTHER AUTHORITIES

Direction No.21

REASONS FOR DECISION

26 June 2008    Ms N P Bell, Senior Member

Summary

1.      Mr Niuia arrived in Australia from New Zealand on a Subclass (TY 444) Special Category (Temporary) visa on 16 August 2006.  He was 24 at the time of his arrival.  He had a conviction from New Zealand in 2004 for “Threaten to Kill/Do GBH (Verbally)”, “Possess offensive weapon”, “Common assault” and “Assaults with intent to injure (Manually)”.  These convictions arose out of a domestic dispute.  The Court sentenced Mr Niuia to 200 hours supervised community work.  He failed to disclose these convictions on his passenger card when entering Australia.

2.      He came to Australia with his father, following the murder of his uncle, with the aim of providing support to his aunt.  In New Zealand, he had lived with his mother after parting from his partner of some 7 years and from his young son.  Mr Niuia said he had become depressed and began heavy drinking and drug taking after having decreased his use for some time.

3.      When he arrived in Australia he went to live with his aunt and cousins.  Mr Niuia obtained work in construction but gave it up as he realised he was afraid of heights.  He had provided some financial support to his aunt.  After a month, he began to use drugs heavily and to drink again.  Mr Niuia gave what he called “protection” to some friends of his cousins who paid him in the drug “ICE”.  He told the Tribunal he was asked to provide these services because he is “big and strong”.

4.      On 28 December 2006 Mr Niuia committed an armed robbery.  He was charged with and convicted of “Robbery armed with offensive weapon” and sentenced to two years imprisonment with a non parole period of one year.  He was released from prison in December 2007 and went to live with his mother, who had come from New Zealand to be with him when she heard of his imprisonment, and with his fiancé.

5.      On 31 March 2008 Mr Niuia’s visa was cancelled by the Minister’s delegate pursuant to section 501(2) of the Migration Act 1958 (the Act).  He has applied to this Tribunal for review of the cancellation decision.

Issues

6.      Under section 501(2) of the Act, the Minister may cancel a visa if the person does not satisfy the Minister that he or she passes the character test as defined in section 501(6) of the Act.  Section 501(6) sets out a number of bases on which the character test is not met.  The relevant basis in Mr Niuia’s case is section 501(6)(a) which states that a person does not pass the test if he or she has a “substantial criminal record” (as defined in subsection (7) of the Act).  It is common ground that Mr Niuia has a substantial criminal record and therefore does not pass the character test.

7.      It follows that the only issue to be considered in this application is whether, as a matter of discretion, the Tribunal should cancel Mr Niuia’s visa.  The exercise of this discretion must comply with any directions promulgated by the Minister pursuant to section 499(1) of the Act.

8.       The direction relevant to the exercise of the discretion under section 501(2) is “Direction – Visa Refusal and Cancellation under section 501 – No. 21” (the Direction).  The Direction sets out the considerations that should be taken into account and the appropriate weight to be given to them, when exercising the discretion. It requires the Tribunal to have regard to three primary considerations, to be given more weight, and, where relevant, a range of other considerations to be given lesser weight.

9.      The three primary considerations are:

(a)         the protection of the Australian community, and members of the community;

(b)         the expectations of the Australian community; and

(c)the best interests of the child

10.     Under some of these considerations, the Direction sets out a range of matters to be considered.

11.     The other considerations relevant to Mr Niuia’s circumstances are:

●the extent of disruption to Mr Niuia’s family, business and other ties to the Australian community;

●         any de facto or interdependent relationship he is in;

●the degree of hardship which would be caused to immediate family members lawfully resident in Australia;

●         any evidence of rehabilitation and any recent good conduct; and

●         the purpose and intended duration of his entry to or stay in Australia.

Protection of the Australian Community

12.     I have had regard to this primary consideration by reference to the particular factors set out in the Direction as relevant to the protection of the Australian community.

Seriousness and Nature of the Conduct

13.     The following excerpt from the sentencing remarks of Neilson J is telling:

On the evening of 28 January 2006 Mr David Strachan and Ms Jodie Millen were working at the BWS Liquor store at 46 Saywell Road, Macquarie Fields.  At about 8.30 pm Ms Millen began to prepare the store for closing which was scheduled for  9pm.  About twenty to 9 the Offender together with a young offender ran into the store towards the victims.  The Offender and the young offender were both armed with knives and in the company of three other offenders who were also armed with knives. 

…

The Offender ran directly towards Mr David Strachan and took hold of him throwing him to the ground.  The Offender then pointed a silver knife with a 20 cm blade towards the victim.

…

The Offender held Mr Strachan down with the blade at his throat during the entire robbery.

14.     I am satisfied that the conduct is serious, given its violent nature and the fact that it was done in planned concert with at least one other person.  This consideration weighs in favour of cancellation.

Likelihood of Conduct Being Repeated

15.     Mr Niuia’s conviction in Australia took place just three months after his arrival here. His evidence was that he has abused alcohol and drugs since the age of 13 and was under the influence of alcohol when he first offended in New Zealand and of alcohol and “ICE” when he committed the offence in Australia.

16.     Mr Niuia said he obtained the drugs from friends of his cousins who gave them in exchange for his protective services as a large and strong man.  He did not purchase the drugs which had a daily street value, he said, of some $400.  He said he had smoked marijuana when in New Zealand and in Australia.

17.     However, Mr Niuia said he has been sober for over a year.  He has also taken part in a program for Pacific Islanders in which he learned about the problems associated with drug taking and alcohol and techniques for avoiding them. Whilst in prison he attended counselling and was on a waiting list for anger management and drug and alcohol classes.  Since his release he has lived with his mother, who flew over from New Zealand when he was taken into custody, and with his fiancé of two years, an Australian citizen.  He said he has applied for work but has been unsuccessful and has spent his time at home “staying out of trouble”.

18.     Mr Niuia expressed remorse for his offence and apologised to the victims of his crime.  He also apologised to his family for the distress he has caused them.

19.     I note the following excerpt from the sentencing remarks of Neilson J:

I accept that the Offender is truly remorseful; I accept that he has insight into what he has done. He has insight into what he should do and the likelihood of recidivism is low, therefore the prospects of rehabilitation are good.

20.     I also note that Neilson J commented that Mr Niuia, whilst in custody, assisted the police with the identification of some of his co-offenders, including one of his cousins and was prepared to turn Crown witness against them, thereby making his own imprisonment more difficult.

21.     I also note that, according to Neilson J’s comments, the Police considered that the risk of Mr Niuia re-offending is low.

22.     I consider that although there is some risk of Mr Niuia re-offending, that risk is low. This consideration weighs against cancellation.

Deterrent Effect of Cancellation

23.     The Minister submitted that the cancellation of Mr Niuia’s visa would send a message to those who know him and are aware of his circumstances.  That may be so, but I consider that Mr Niuia’s prison sentence already sends that message.  I am also mindful that, if cause to do so arises, cancellation can be considered again.  Mr Niuia will have that possibility over his head for the foreseeable future.  This consideration does not weigh in favour of cancellation.

Expectations of the Community

24.     There is a clear expectation that people will comply with the laws of Australia. The sentencing remarks of Neilson J included some excerpts from the victim impact statements relevant to Mr Niuia’s offence in Australia.  Those excerpts emphasise and illustrate community expectations.  This consideration weighs in favour of cancellation but is balanced against Mr Niuia’s evident remorse and intention to reform.

Interests of the Child

25.     Mr Niuia has a young son who lives in New Zealand with his former partner.  His evidence and that of his mother was that he is estranged from his former partner and has little or no access to his son.  His former partner has formed another relationship.  Cancellation of his visa will have no adverse effect on the child.

26.     Mr Niuia raised, when questioned by me, the relationships he has formed with his young cousins in the time he spent in Australia before being taken into custody.  He would take them to the park or to the shops in an effort to assist his aunt, their grandmother.  However, three months is a short time and the children did not know him before his arrival.  They live with their mother and father as they did before Mr Niuia came to Australia. This consideration does not weigh against cancellation of the visa.

Other Considerations

27.     Mrs Niuia came to Australia when her son was incarcerated.  She has since settled here and found employment and a place to live.  Her evidence was that she would prefer to remain in Australia because she has a fear of Mr Niuia’s father, but she would return to New Zealand if Mr Niuia is forced to return there.  After his release from prison and prior to the cancellation of his visa, Mr Niuia lived with his mother and his fiancé at his mother’s home.  Mrs Niuia presented as a concerned and devoted mother whose stability and influence would have a beneficial effect on Mr Niuia.

28.     Mr Niuia’s fiancé also gave evidence.  She was born in Australia and does not know the few relatives she has in New Zealand.  She has been in a relationship with Mr Niuia since shortly after he arrived in Australia.  They are engaged to be married.  I note the relationship has continued despite his imprisonment.  When asked whether she would go to New Zealand to be with Mr Niuia if he was returned there, after hesitating, she replied she didn’t know.  Mr Niuia said he thought the relationship might not withstand the separation.

29.     Mr Niuia also tendered a statement from the aunt he lived with when he first arrived in Australia. She described his good character.

30.     I am satisfied, and the Minister concedes, that these family members would be disrupted and would suffer hardship if Mr Niuia’s visa was cancelled. I am also mindful that Mr Niuia’s relationship with his fiancé lasted through his incarceration.   These factors weigh against cancellation of Mr Niuia’s visa.

31.     As noted above, Mr Niuia has now undertaken a program dealing with drug and alcohol abuse together with counselling.  His pre sentence report made in June 2007 indicates that Mr Niuia had “unresolved drug and alcohol issues.” The report recommended against a Community Service Order or Periodic Detention Order for this reason.  However, with the program that he has undertaken, and the continued support of his mother and fiancé, together with his relative youth and the possibility of pursuing his professed desire to become a physical education teacher, his prospects for rehabilitation are reasonable.  I note again the comments of Neilson J in relation to the remorse expressed by Mr Niuia for his crime.  He expressed similar, tearful remorse in the hearing before the Tribunal.  I also note Neilson J’s comment that Mr Niuia has insight into what he has done and what he should do now, that the likelihood of recidivism is low and that therefore the prospects of rehabilitation are good.  I further note that the pre sentence report states that he was a quiet and good worker whilst in Parklea Correctional Centre and that he had a good rapport with officers and other offenders.  I consider that these indications of Mr Niuia’s rehabilitation and good behaviour weigh against cancellation.

32.     A further matter raised by Mr Niuia was that, shortly after his release from prison, his brother telephoned him to say that a man in New Zealand, with whom Mr Niuia had had an argument some time ago, had made threats against Mr Niuia’s life.  Mr Niuia’s fiancé confirmed that Mr Niuia had told her of this some time ago.  While I accept this news was conveyed to Mr Niuia, it is difficult to guage the likelihood of the threat being acted on.  In the absence of further evidence, I cannot give much weight to the matter.

33.     Finally, I note that Mr Niuia had intended to remain in Australia for the foreseeable future.  He expressed deep grief and remorse over the distress he has caused to the victims of his crime and to his family, and in particular his mother, and for the possibility that he has lost his opportunity to make a good life here.

Conclusion

34.     Notwithstanding the seriousness of Mr Niuia’s conduct and the crime he committed, I am satisfied that the likelihood of the conduct being repeated is low and there is little to be gained by way of deterrent effect were his visa to be cancelled.  While I am satisfied that the Australian community has an expectation that the laws of Australia will be complied with, I am satisfied that Mr Niuia, as a young man, is on the road to rehabilitation as shown by his recent good conduct and his evident remorse.  I am satisfied that he will be aided in this rehabilitation by the continued presence and support of his mother and his fiancé who would also suffer hardship and disruption were he to be returned to New Zealand.  On balance, after having regard to the primary and other considerations set out in the Direction, I consider Mr Niuia’s visa should not be cancelled.

Decision

35.     The decision under review is set aside and instead the Tribunal decides that Mr Niuia’s visa should not be cancelled.

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of  

Signed:         ...............................sgd......................................................
  Associate: Felicia Daniele

Date/s of Hearing  12 June 2008
Date of Decision  26 June 2008
Solicitor for the Applicant           Self Represented
 Solicitor for the Respondent     Mr Chand, Clayton Utz Lawyers