PETER UELESE and MINISTER FOR IMMIGRATION AND CITIZENSHIP

Case [2012] AATA 793

[2012] AATA 793

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2012/3894

Re

PETER UELESE

APPLICANT

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

RESPONDENT

DECISION

Tribunal

Senior Member G Ettinger
Date 14 November 2012
Place Sydney

The Tribunal affirms the decision under review.

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

Senior Member G Ettinger

CATCHWORDS

MIGRATION – Class TY Subclass 444 Special Category (Temporary) visa – cancellation – character test – substantial criminal record – protection of the Australian community – real risk of re-offending – whether nature of the risk is unacceptable – strength, duration and nature of ties to Australia – best interest of minor children – other considerations – decision under review affirmed

LEGISLATION

Migration Act 1958 ss 500, 501

CASES

Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 40 FCR 493

Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81

Re Visa Cancellation Applicant and Minister for Immigration and Citizenship [2011] AATA 690

SECONDARY MATERIALS

Direction no. 55 – Visa refusal and cancellation under s501

REASONS FOR DECISION

Senior Member G Ettinger

14 November 2012

SUMMARY

  1. Mr Peter Uelese is a 28 year old man who came to Australia with his family in 1998, when he was aged 14. He was born in Samoa, moved to New Zealand with his family, when he was three years old, and is a citizen of New Zealand. He has resided in Australia since 1998. Mr Uelese was granted a Class TY Subclass 444 Special Category (Temporary) visa which allows him to remain in Australia indefinitely while he remains a New Zealand citizen. His parents live in Australia, as do his partner, with whom he has had an on/off relationship over twelve years, children, siblings, nephews and nieces and an extended family.

  2. Mr Uelese has a history of criminal conduct commencing with a criminal conviction in 1999, for break and enter building, commit felony when he was 15 years old, and only approximately 17 months after his arrival in Australia. He has been convicted of three offences involving violence, being in 2005, and June and December 2011. He was also, in 2007, convicted of an offence involving possession and supply of a prohibited drug, and at least one other offence in 2003. The offences involving violence have been associated with alcohol consumption. He has sought very little assistance to deal with his anger management and alcohol issues.

  3. Mr Uelese has been sentenced to terms of imprisonment, and was recently in custody from October 2010 until 5 September 2012. On the day of his release he was taken into immigration detention.

  4. Mr Uelese has three children aged eleven, eight and six with Ms P Fatai whom he says he plans to marry in early 2013 if he is permitted to stay in Australia. Mr Uelese also has two other children aged approximately five and four. The information about the other two children came to light during cross-examination of Ms Fatai. The effect of s 500(6H) of the Migration Act 1958, which was…

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AGLC
PETER UELESE and MINISTER FOR IMMIGRATION AND CITIZENSHIP [2012] AATA 793
Case
[2012] AATA 793
Decision Date

CaseChat Overview and Summary

The case of Peter Uelese and the Minister for Immigration and Citizenship involved a dispute regarding the cancellation of Mr Uelese’s Special Category (Temporary) visa under subclass 444. The decision was reviewed by the Administrative Appeals Tribunal (AAT), which affirmed the Minister's decision to cancel the visa. The primary concern was Mr Uelese’s substantial criminal record, which raised questions about his fitness to remain in Australia under the character test stipulated by the Migration Act 1958.

The AAT had to decide whether Mr Uelese's visa should be cancelled due to his failure to meet the character test, considering the protection of the Australian community, the risk of re-offending, and other relevant factors. The key legal issues revolved around the nature and seriousness of Mr Uelese’s criminal conduct, the risk he posed to the community, and the strength, duration, and nature of his ties to Australia. Additionally, the Tribunal examined the impact of visa cancellation on Mr Uelese’s minor children and other relevant considerations.

The Tribunal found that Mr Uelese’s history of violent criminal behaviour, including multiple convictions for assault and affray, demonstrated a real and significant risk to the Australian community. The frequency and severity of his offending, along with the potential for future crimes, heavily favoured cancelling his visa. Despite his long-term residence in Australia and the presence of his children, the Tribunal concluded that the risk he posed outweighed the benefits of allowing him to remain in the country. The Tribunal upheld the Minister's decision to cancel Mr Uelese’s visa, emphasising the need to protect the community from individuals who pose a significant risk due to their criminal conduct.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Ultimately I am satisfied that given Mr Uelese’s pattern of offending, the consideration of the risk to the Australian community should Mr Uelese commit further offences or engage in other serious conduct is a real one, and may include crimes against members of his family and others, as has already occurred. Accordingly that weighs heavily in favour of cancelling Mr Uelese’s visa.My conclusions regarding the protection of the Australian community In considering the protection of the Australian community, I have had regard to the nature and seriousness of Mr Uelese’s conduct, and the risk to the Australian community should he commit further offences or engage in other serious conduct. I have found in the paragraphs above in regard to both limbs, and considering them cumulatively, that the evidence weighs heavily in favour of cancelling Mr Uelese’s visa.Strength, duration and nature of the person’s ties to Australia Clause 9.2 of Direction no. 55 provides that when exercising the discretion under s 501 of the Act, 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; andii. 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. As noted in the clause 6.3 principles, a higher level of tolerance of criminal or other serious conduct may be afforded in relation to a non-citizen who has lived in the Australian community for most of their life or from a very young age. The length of time a non-citizen has been making a positive contribution to the Australian community and the consequences of a visa cancellation on minor children and immediate family members in Australia are also relevant considerations. Mr Uelese arrived in Australia in 1998 when he was 14 years old. He was educated to year 10 at school here, and has lived in the Australian community for approximately half of his 28 years. He has worked, but from the evidence before me, not in any permanent position, and has not been in one job for more than a few months at any time. His evidence was that he had done welding and carpentry courses at TAFE, that he had worked spray painting for approximately six months, loading and unloading containers for a couple of months, and making paint before he went to prison. He was also a removalist for approximately six months. Mr Uelese also worked with Mr Mustafa Temur in scaffolding for approximately two months (Exhibit A2). Mr Temur said that he did not really know about Mr Uelese’s offences, but that he was a friend of Mr Uelese’s brother, and had been to the house a few times. He said that he would employ Mr Uelese in scaffolding work if he was permitted to stay in Australia.

Ratio Decidendi

Legal Principle Established

The other considerations include, but are not limited to, the effect of cancellation on the person’s immediate family in Australia, the impact on Australian business interests, the impact of a decision not to cancel a visa on members of the Australian community (including victims of the person’s criminal behaviour and family members of the victims), and the extent of any impediments the person may face if removed from Australia.PRIMARY CONSIDERATIONSProtection of the Australian Community Clause 9.1(1) of Direction no. 55 provides that decision-makers, and hence the Tribunal, should have regard to the principle that the Government is committed to protecting the Australian community from harm. Relevantly, it states: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. In considering the protection of the Australian community, the Tribunal must have regard to the nature and seriousness of Mr Uelese’s conduct, and the risk to the Australian community should he commit further offences or engage in other serious conduct (clause 9.1(2)).The nature and seriousness of Mr Uelese’s conduct Sub-clauses a) to j) of clause 9.1.1(1) have been compiled for consideration when assessing the nature and seriousness of a person’s conduct. The sub-clauses relevant to Mr Uelese’s conduct include:a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;d) The principle that any conduct that forms the basis for a finding that a person does not pass the character test under s 501(6)(b) or (d), or is not of good character under s 501(6)(c), is considered to be serious;e) The sentence imposed by the courts for a crime or crimes;f) and g) The frequency of the person’s offending and whether there is any trend of increasing seriousness; the cumulative effect of repeated offending. The table below indicates the dates of conviction for the various crimes Mr Uelese has committed. As can be seen from the table above, Mr Uelese was convicted of crimes involving violence on three occasions, in 2005, and on two occasions in 2011. He has been sentenced by a court for criminal activity on at least six occasions between 1999 and 2011. A perusal of the official records indicates Mr Uelese has been involved in a trend of committing crimes involving violence on an escalating scale. The offences Mr Uelese was convicted of in 2011, have been the most serious. On 20 June 2011, he was convicted for assault occasioning bodily harm to his partner’s mother on 8 October 2010 for which the sentence he received was 16 months incarceration, with a non-parole period of eight months. He was then sentenced to 36 months incarceration with a non-parole period of 18 months on 6 December 2011 for recklessly cause grievous bodily harm in company, affray and assault occasioning actual bodily harm.