NZA and MINISTER FOR IMMIGRATION AND CITIZENSHIP

[2011] AATA 928

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 928

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2011/4293

GENERAL ADMINISTRATIVE DIVISION		)
Re		NZA

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal  Senior Member Bernard J McCabe

Date 22 December 2011

Place Brisbane

Decision  The Tribunal affirms the decision under review.

..............................................

Senior Member

CATCHWORDS

CITIZENSHIP & IMMIGRATION ― section 501 visa cancellation ― substantial criminal record ― protection of the Australian community ― serious offences ― whether the person was a minor before they began living in Australia ― length of time applicant has been resident in Australia ― international obligations – best interests of any children ― fear of retaliation from New Zealand gang ― affirmed.

Criminal Code 1899 (Qld), s 317

Migration Act 1958, s 499, 501

REASONS FOR DECISION

22 December 2011 Senior Member Bernard J McCabe

1.The applicant is a New Zealand citizen who has resided in Australia since 2006. He has been in trouble with the law. The Minister for Immigration and Citizenship has decided to exercise the discretion in s 501 of the Migration Act 1958 to cancel the applicant’s visa on character grounds. The applicant has asked the Tribunal to reconsider the cancellation decision.

2.The Minister was right to cancel the applicant’s visa in all the circumstances. It follows the decision under review should be affirmed. I explain my reasons below.

The power to cancel a visa pursuant to s 501(2) of the Migration Act 1958

3.The applicant was convicted of one count of doing grievous bodily harm with intent under s 317 of the Criminal Code 1899 (Qld) on 23 June 2010. He was sentenced to a term of five years and six months in prison. It follows the applicant has a substantial criminal record within the meaning of s 501(6). In those circumstances, there is no doubt the Minister’s discretion to cancel the applicant’s visa on character grounds pursuant to s 501(2) of the Act has been enlivened.

4.I note the applicant argued in written material filed before the hearing that the Minister did not have the power to deport him because New Zealand is an Australian state. The applicant did not explain or clarify that argument at the hearing. He is wrong. New Zealand is not an Australian state. There is no question the Act may validly require that New Zealanders have a visa in order to enter or remain in Australia, and there is no doubt the Minister may validly cancel such a visa in the circumstances specified in the Act.

5.I also note the applicant asked for an order that he and his new family be compensated if he is required to leave Australia. The Tribunal does not have the power to award compensation in a case like this.

Should the applicant’s visa be cancelled?

6.The Minister does not have to cancel the visa of a person who fails the character test. He merely has the discretion to do so. The power is typically exercised by a delegate, and by the Tribunal on review. When making a decision, the delegate (and the Tribunal, which steps into the Minister’s shoes) must have regard to the matters set out in Direction 41: Visa Refusal and Cancellation under
s 501. The Direction is issued by the Minister pursuant to s 499.

7.The Direction identifies four primary considerations which must be addressed. I will turn to each of these below. I may also have regard to other considerations set out in the Direction, although the primary considerations will ordinarily carry more weight. I will deal with the other considerations after analysing the primary considerations.

Primary Consideration One: Protection of the Australian community

8.The first primary consideration requires that I have regard to the need to protect the Australian community from “unacceptable risks of harms as a result of criminal activity or other serious conduct by non-citizens”: the Direction at [5.1(2)]. In order to assess the risk of harm, I must have regard to:

(a) the seriousness and nature of the relevant conduct; and

(b) the risk that the conduct may be repeated.

9.I turn firstly to the nature of the conduct. I have already referred to the applicant’s conviction for grievous bodily harm with intent. The circumstances of the offence were as follows. The applicant was involved in an altercation with another patron in a hotel bar. Both individuals were asked to leave. The applicant got into his car outside and saw the other patron walking on the street. The applicant ran the other man down, causing him to be injured, then drove off without stopping. The applicant was charged with attempted murder but was ultimately convicted of the lesser (but still serious) offence. He had earlier attempted to plead guilty to a lesser charge on the basis that he did not have the required intention. That plea was rejected and the jury returned a verdict under s 317 of the Criminal Code.

10.The applicant’s offence is, by definition, a very serious one. The applicant was using his vehicle as an offensive weapon. Crimes of this nature are certainly within the meaning of “serious offences” for the purposes of the Direction. The lengthy sentence imposed by the sentencing judge reflected the gravity of the offence. On appeal, Chesterman JA observed (exhibit one at p 82):

The trial judge rightly recognised the seriousness of the offence. A civilised society cannot tolerate its members using motorcars as weapons of revenge or retaliation. The complainant may not have been seriously injured that was pure fortuity. He could easily have been killed, or gravely and permanently damaged. The sentence must punish for what was a callous and deliberate attack with a weapon apt to cause terrible injuries…

11.There was some dispute over whether the applicant acted with premeditation. He denies that he did, and the trial judge accepted that was so: exhibit one at p 88. Chesterman JA, on appeal, disagreed. His Honour concluded there was premeditation: exhibit one at 82. If the act was premeditated, the offence would be even more serious.

12.It is unclear whether I am bound to accept the remarks of Chesterman JA as authoritative findings of fact. It is probably preferable for present purposes that I accept the act was not premeditated, as the sentencing judge concluded. But even allowing for that, the offence is still very serious. The applicant’s behaviour would horrify members of the Australian community.

13.The second inquiry is directed towards the risk of re-offending. The person’s previous general conduct is relevant to this inquiry, as are other matters that might shed light on whether there is an unacceptable risk that the applicant will engage in further objectionable conduct if he is permitted to stay in Australia.

14.The applicant had a serious criminal record in New Zealand. He pleaded guilty to charges of aggravated robbery, kidnapping and car conversion in the High Court in 1991. He had actually committed three very serious armed robberies in a short space of time. In the course of those robberies, the applicant and his co-accused took hostages. When the applicant was sentenced on 23 August 1991, he had already served one year in prison; he was sentenced to eight years in gaol. On appeal, the total sentence was increased to ten years on the robbery charges in light of the serious nature of the conduct. It was a stiff sentence, but the Court of Appeal was particularly concerned that hostages had been taken during the course of the robberies. Given the maximum sentence at the time was 14 years for robberies of that kind, a sentence of 10 years and the Court of Appeal’s remarks indicate this was very serious conduct indeed.

15.At the hearing in this matter, the applicant sought to downplay his involvement in those crimes. He said he committed those offences after he had fallen into bad company. He invited me to conclude the sentences were exceptional given the more lenient approach to sentencing that apparently prevailed at the time. The remarks of the Court of Appeal suggest otherwise. The applicant’s evidence at the hearing did not suggest clear insight into his offending in New Zealand, or genuine remorse for what he did.

16.The applicant exhibited a similar reluctance to take responsibility for the offence he committed in Australia. He was asked repeatedly during the course of the hearing whether he accepted he was responsible for what he had done. He refused to answer the questions directly. When asked about the circumstances of the offences, he acknowledged there was evidence that suggested he was guilty but claimed he did not remember what occurred. Yet he gave statements to the police about the incident and also told his new partner, Ms D, about the offence in some detail according to her testimony. It was unclear whether he accepted responsibility for what he had done, and he did not offer a clear expression of remorse for any of his behaviour. He is still considering whether to appeal the conviction, he says, given he continues to insist there was no intention to inflict grievous bodily harm on the victim. The verdict of the jury and the evidence referred to by the sentencing judge and the Court of Appeal raises serious doubts over whether the applicant has come to terms with what he did – which raises serious doubts over whether he might engage in that sort of conduct again.

17.I accept a significant time elapsed between the offences in New Zealand and the offences in Australia – but the applicant was in gaol for a large portion of that time. The offences are different in important respects. The most recent offence was not a robbery and was not motivated by greed. Yet all of the offences demonstrate a ruthless disregard for life and liberty. I acknowledge the applicant’s prison records indicate he was, for the most part, a well-behaved prisoner. The applicant has made good use of his most recent stint in prison. He has earned a number of trade qualifications. He had a good employment record when he lived in New Zealand before and after his time in gaol, and he was in regular employment in Australia at the time he committed the most recent offence. There is no reason to doubt he would be able to obtain regular employment if he were permitted to stay in this country. That is encouraging.

18.There is little in the way of independent evidence from experts like psychologists or counsellors who can talk about the applicant’s rehabilitation. He is eligible for parole, which suggests a level of confidence that he can be released into the community, albeit subject to supervision.

19.The applicant said the most important development in his life has been the emergence of a relationship with Ms D. Ms D was the mother of a fellow prisoner whom the applicant befriended. The applicant began writing to Ms D and she came to visit him in prison. They now have regular contact by phone and letter, and she visited the applicant in gaol on a regular basis. They have decided to marry when the applicant is released into the community. The applicant wants to move in with Ms D and her family although that would not be possible in the short term as the parole authorities have not yet approved Ms D’s home as a suitable residence for the applicant if he obtains parole and remains in Australia.

20.I heard from one of Ms D’s children at the hearing, and I was also provided with statements by her other children. I was told the applicant was referred to as “Dad” and the family had come to think of him as a father figure. Ms D’s children appear to have formed a very strong bond with the applicant, although they have only met him on a small number of occasions and conversed with him on the phone and through the post.

21.I also heard evidence from two of the applicant’s nieces and received a statement from his brother. I was provided with a picture of a strong family structure that would support the applicant if he was released from prison into the Australian community. It was obvious the various family members have a genuine regard for the applicant, and he appeared to have a genuine affection for his blood relatives and for those whom he hoped would become his new family.

22.Without questioning the depth of feeling exhibited by Ms D and her family, their relationships with the applicant are still virtual relationships that are untested by the harsh realities of daily life as a family unit. The parole authorities have recognised this reality. They presumably want to wait and see if the applicant’s relationships with his new family endure after he is released from prison before allowing him to move in. It remains to be seen whether the new family and the renewed contact with his brother’s family will have the life-changing effect that they expect.

23.In all the circumstances, I think this primary consideration weighs reasonably heavily against the applicant. He has a record of serious offences that suggest he has a problem controlling aggression, which could lead to disastrous consequences. His lack of insight into his offending and the uncertain nature of the relationships he has formed with his new family all suggest he poses an ongoing risk to the Australian community that is unacceptably high. That is not to say he is likely to offend again; he may well become a law-abiding citizen, especially if the situation with his new family works out. But his offences are so serious that the public are entitled to expect the Minister will be cautious.

Primary consideration two: whether the person was a minor before they began living in Australia

24.The applicant was an adult of mature years when he came to this country. This consideration does not assist the applicant. Indeed, it actually counts against him. His offence in Australia was not the product of youthful exuberance or immature judgement that might improve over time. The applicant was in his forties when he committed the most recent offence. He should have known better.

Primary consideration three: the length of time that the applicant has been resident in Australia

25.The applicant first came to Australia in 2006.  He was here for about three years before he committed the offence which landed him in gaol most recently. That is not an especially long period of time. He does not appear to have put down strong roots in the community during that period. His former partner broke up with him when he went to gaol; he is now hopeful of making a new life with Ms D and her family. He has other family members in this country but he does not maintain close contact with any of them apart from his older brother and the brother’s children.

26.I do not think this consideration counts heavily in the applicant’s favour.

Primary consideration four: international obligations – especially the best interests of any children

27.The applicant referred to a number of international obligations in his written submissions. He claims that his right to life would be threatened if he were returned to New Zealand. He was referring to his belief that his life would be threatened by criminal associates of a man who was convicted at a trial in New Zealand where the applicant gave evidence on behalf of the Crown. I do not think the applicant’s “right to life” is under threat for reasons I will explain in due course.

28.The applicant also spoke of the rights of Ms D’s children. Several of the children have health problems of various kinds, as does Ms D herself. While the applicant might conceivably contribute to their care and support if he were permitted to remain, it is unclear how Australia’s international obligations would be compromised if he were required to leave. While the children have apparently taken to referring to him as “Dad”, he cannot properly be regarded as their parent (and cannot therefore have parental obligations) at this early point in their relationship. He has had limited contact with Ms D’s children: they have only physically met him on a few occasions. One of them does not even reside with Ms D, and the others are teenagers or older. While the children speak of having formed an intense bond with the applicant, and they might experience disappointment if they do not have the opportunity to get to know him better, it is unclear how their best interests will be compromised if the applicant is required to leave. Their relationship with the applicant has simply not reached the point where Australia’s international obligations make a difference to my decision. I do not think this primary consideration counts in the applicant’s favour.

29.Taken together, the primary considerations suggest the applicant’s visa should be cancelled.

other considerations

30.The applicant has referred to a number of other matters that need to be taken into account. I note these considerations generally carry less weight than the primary considerations: the Direction, at [11].

31.I turn firstly to the applicant’s ties. He does not have any business or enduring employment relationships. Indeed, it is unclear whether he has any community ties to speak of, apart from those with his family.

32.The applicant is not close to a number of his siblings, some of whom reside in Australia. He has a closer relationship with his older brother and his family. The applicant will reside with his older brother as a condition of his parole, if he is permitted to stay. The applicant’s nieces spoke fondly of their uncle at the hearing, but it seems their relationship was not very close in the past. I understand the applicant spends a great deal of time talking to his various family members on the phone from prison. Indeed, all of the witnesses he called at the hearing spoke of the comfort and support they derived from the many lengthy telephone discussions they had with the applicant.

33.It is unclear how the applicant’s removal from this country will disrupt the relationships he has with his brother’s family. While I accept they may be looking forward to the applicant taking his place in the family if he is allowed to stay here. He has not been a fixed feature of their lives in the past. I accept they will be disappointed if he cannot stay, but that is not the same thing as being disruptive.

34.

The applicant’s budding relationship with Ms D and her family is only in the earliest stages. I accept Ms D and her family are unlikely to move to New Zealand if he is required to return there. But the relationship has not existed for long, and it has occurred so far through the medium of telephone and postal contact, with limited personal interaction. The relationship with Ms D could not yet be described as a

de facto marriage, and the relationship with Ms D’s children is not a parental one. Indeed, notwithstanding the apparent intensity of the bond that has been formed between the applicant and some of the children, it cannot really be said that they know each other yet.

35.While I accept there will be some disruption to familial ties if the applicant’s visa is cancelled, I do not think this consideration counts heavily against cancellation.

36.The applicant is in his mid-forties. I was not told of any medical conditions or other disabilities that would be more difficult to address in New Zealand.

37.The applicant continues to have ties with New Zealand. He has family members there and he has a strong sense of culture. Indeed, he spoke proudly about his efforts to educate his family members about their background. Given he came from that country only recently, there is no reason to believe he would have trouble fitting in if he returned.

38.A good deal of the hearing focused on the potential hardship that would result if the applicant were required to return to Australia. I have already alluded to the situation with his brother’s family, and with Ms D’s family. I note Ms D is in poor health. She needs an operation on her back which she says is very risky. She says the applicant’s presence would give her greater comfort and support during that ordeal. Her children have also formed an intense attachment to the applicant, which does not seem altogether healthy. I was provided with some evidence about the mental health of one of the children in particular. I was invited to infer that the child’s health would be at risk if the applicant were not to be released into the community.

39.I accept Ms D and her family will be very disappointed if they are denied the opportunity to welcome the applicant into their lives. That is not the same thing as experiencing hardship, of course. The fact that Ms D and her children and perhaps other family members will be deprived of the emotional or other support may qualify as hardship. I accept there will be some hardship in that sense.

40.The applicant is also concerned for his own safety if he is required to return to New Zealand. His concern arises out of the fact he gave evidence as a Crown witness against a man who was convicted of assault following a bar-room brawl involving the applicant and some other men. The applicant suggested this man was a person of means who was able to arrange retribution against the applicant for his part in his trial. He said that persons who may have been associates of the man had visited a hotel where the applicant was drinking with workmates at some time after the assault. They behaved in a menacing fashion. The applicant said he had fled New Zealand as a result, although the respondent suggested the applicant had really come to this country to visit his brother.

41.I asked the respondent to obtain evidence from an expert witness who could speak with authority about the law-and-order situation in New Zealand, with particular emphasis on gang activity. I wanted to know whether the applicant was really in danger if he were required to return. The respondent called Professor Greg Newbold, a professor of sociology at the University of Canterbury. Professor Newbold is a recognised expert on gang culture and activities in New Zealand. The applicant raised questions about Professor Newbold’s background, but I am satisfied he was a credible expert witness. He provided two reports and gave oral evidence.

42.Professor Newbold said most reports of gang activity in New Zealand were exaggerated. He said members of a number of the gangs did carry on criminal activities, and some of them were capable of exacting revenge against a member of the gang who had broken their codes. But the applicant was not a member of any gang, and there is no suggestion he was bound by a code that he transgressed.

43.I was told that most of the violence that occurred was restricted to gang members. Professor Newbold said outsiders were not ordinarily in any danger of retaliation from gang members, even in circumstances where, for example, an outsider gave evidence against a gang member in a prosecution. He spoke of well-developed witness protection programs and other measures that had reduced the possibility of witness intimidation. He said retaliatory violence directed at Crown witnesses was extremely rare. He suggested the police were generally equal to the task of containing the gangs and protecting the public.

44.When provided with more specific information about the applicant’s experience and circumstances, Professor Newbold said there was little to fear. He acknowledged it was possible that a well-connected and wealthy person could arrange for violent retaliation but added those sorts of crimes were rare in New Zealand and tend to be successfully prosecuted. He specifically rejected as unlikely the applicant’s claim that two police officers who were involved in the case in which he gave evidence were forced to transfer as a result of the potential for retaliatory violence.

45.I accept Professor Newbold’s evidence. I acknowledge that a gang member who gave evidence against a fellow gang member might be in real danger of retaliation, but that is not the case here. I am not persuaded the applicant is in any real danger if he were to return to New Zealand. It follows that the potential for hardship to the applicant is not a serious consideration that counts in his favour.

46.The applicant has taken the opportunity to obtain a number of qualifications while he was in prison. He is an accomplished wood-carver, and he has acquired a number of skills that are in demand in construction, forestry and road-building. He would be able to make a positive contribution to the community, which counts in his favour.

47.I am satisfied the applicant was not impaired in the presentation of his case. He was composed and articulate. He had ample opportunity to place relevant material before me.

48.I am not aware if the applicant was previously told about the possibility his visa might be cancelled. I do not think that matters. He was plainly aware that his criminal past might be an issue when he came to this country. He explained in his evidence that he did not complete the section of the landing card that asked about criminal convictions when he arrived at the customs barrier. He was waved through but that story indicates he knew this country generally prefers to be careful about whom it admits.

Conclusions

49.I am satisfied the primary considerations weigh reasonably heavily in favour of cancellation. Some of the other considerations weigh in the applicant’s favour, but I think the balancing process contemplated by the Direction leads me to the conclusion that the visa should be cancelled. I am conscious the decision will be hard news for Ms D and her family. While I have sympathy for their predicament, the decision under review must be affirmed.

50.I should discuss the question of confidentiality. Before the hearing, the applicant recounted his fears of retaliation if he were required to return to New Zealand. I thought it was appropriate to make orders under s 35 of the Administrative Appeals Tribunal Act 1975 in those circumstances. For reasons I have explained, I am not convinced those dangers are as serious as the applicant believes. But I have decided to leave the orders in place and use pseudonyms in the decision and published reasons in light of the evidence given by the minors in this case. There are a number of reports concerning the health and well-being of the children and their relationship with the applicant. Their interests might be affected if the details of some of that evidence were to be published. I note they gave their evidence in the apparent expectation that it would remain confidential. In those circumstances, I have published my reasons in this form.

51.I want to raise one other matter. Ms D took time off work to come to the hearing to give evidence. She said she lost her job as a result. It would be a matter of concern if a witness before the Tribunal were to be penalised in her workplace because she gave evidence. I will ask the Registrar to write to Ms D and, if necessary, ­her employer, to determine what occurred.

I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe

Signed:.....................................................................................
  Associate

Date of Hearing  13 December 2011
Date of Decision   22 December 2011
Applicant   Self-Represented
Solicitor for the Respondent      Mr Will Sharpe, Sparke Helmore