PETER UELESE and MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2012] AATA 793
•14 November 2012
[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
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.
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.
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.
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 acknowledged by Mr Uelese’s representative, was that the Applicant was prevented from eliciting oral evidence that may have supported his case in relation to these children as there was no reference to them in any written statements provided to the Minister at least two business days before the hearing.
On 3 September 2012, a delegate of the Minister for Immigration and Citizenship (the Minister) made a decision to cancel Mr Uelese’s visa. Mr Uelese seeks a review of that decision before this Tribunal. The Minister made the decision because Mr Uelese does not satisfy the character test set out in the Migration Act 1958 (the Act). Mr Uelese does not satisfy this character test because he has a substantial criminal record. Both the Minister and the Tribunal standing in his shoes can exercise a discretion to permit Mr Uelese to remain in Australia.
However, I am satisfied on the basis of the evidence before me that the decision of the Minister should be affirmed. My reasons follow.
Mr R Killalea, solicitor of KTG Lawyers, was able to represent Mr Uelese at the Tribunal at short notice, and was able to refer the Applicant in time for assessment to Mr C Probets, a psychologist. The report of Mr Probets was Exhibit A10. Ms D Watson of the Australian Government Solicitor represented the Minister. I am grateful to both for their assistance.
LEGISLATIVE CONTEXT
The relevant legislation in this matter is the Migration Act 1958, and Direction no. 55 – Visa refusal and cancellation under s501 (Direction no. 55). Section 501(2) states that the Minister may cancel a visa granted to a person if the person does not satisfy the Minister that he or she passes the character test. Section 501(6) provides that a person does not pass the character test if the person has a substantial criminal record. Substantial criminal record is defined in section 501(7) as, among other things, having been sentenced to a term of imprisonment of 12 months or more, or to two or more terms of imprisonment where the total of those terms is two years or more.
Mr Uelese has been sentenced to various terms of imprisonment, including for a period of 36 months. I have reviewed the offences with which Mr Uelese has been charged, those of which he was convicted, and the sentences which followed, and find that he exceeds the minimum contemplated in section 501(7) of the Act in order to constitute a person having a substantial criminal record. As a result of his substantial criminal record Mr Uelese does not pass the character test. Accordingly the discretion under section 501(2) of the Act is enlivened.
Direction no. 55 which is made pursuant to section 499 of the Act, must be applied when exercising the discretion where a person has been held to fail the character test in section 501 of the Act.
Direction no. 55 states 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, (clause 6.2(1)), and sets out six principles of critical importance in furthering that objective which are stated to reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable (clause 6.2(1)). These principles must inform the exercise of the discretion, and involve a balancing exercise (clause 7(1)). The principles are as follows:
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.
Clause 8 provides guidance about the decision-making process. Decision-makers must have regard to the primary and other considerations as set out in Direction no. 55, and information and evidence from independent and authoritative sources should be given appropriate weight. The primary considerations should generally be given greater weight than the other considerations, and one or more of the primary considerations may outweigh other primary considerations.
There are four primary considerations, three of which are relevant to this case, being protection of the Australian community from criminal or other serious conduct, the strength, duration and nature of the person’s ties to Australia, and the best interests of minor children in Australia. It is common ground that the fourth primary consideration relating to international non-refoulement obligations is not relevant in this case.
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 CONSIDERATIONS
Protection 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.
Date of conviction Date of offence Offence Sentence 25 October 1999 Break and enter building commit felony Released on entering recognizance self $100 to be of good behaviour for 12 months. 27 October 2003 Use offensive language in/near public place/school
Behave in offensive manner in/near public place/school
On each charge: fined $300.
12 July 2005 Assault occasioning actual bodily harm Imprisonment 9 months suspended on entering bond to be of good behaviour 9 months. Common assault Community service order 150 hours. Affray Convicted. Bond to be of good behaviour for 2 years. 25 January 2007 Supply a prohibited
drug
Imprisonment 6 months suspended on entering bond to be of good behaviour 6 months. Possess prohibited drug On each charge: convicted. Bond to be of good behaviour for 2 years. 20 June 2011 8 October 2010 Assault occasioning actual bodily harm Imprisonment 16 months. Non-parole period of 8 months. 6 December 2011 1 January 2010 Recklessly cause grievous bodily harm in company Imprisonment 36 months. Non parole period 18 months. Affray Imprisonment 6 months. Assault occasioning actual bodily harm Taken into account on above.
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.
The transcript in the G-documents recorded that on 8 October 2010, Ms Fatai senior had been out drinking with her daughter, and that after her return to Mr Uelese’s place, during an argument with him after he arrived home, she threw the contents of a bottle of beer over him. The Court recorded that Ms Fatai senior’s actions were in response to Mr Uelese getting out of his chair and advancing towards her. He punched Ms Fatai senior in the jaw, which resulted in a cut to her lip. She also fell to the floor where she was unconscious for a short time. It seems that although Ms Fatai senior also claimed that Mr Uelese had kicked her when she was on the floor, that was not accepted by the Court. This offence was committed while he was awaiting sentencing for the assault and affray matter which occurred on 1 January 2010.
The Magistrate stated:
Clearly there is a need for the defendant to undertake some form of anger management. The fact that there appears to be three matters, plus the matter I am dealing with, is four on his record suggests that there is some problem there that needs to be addressed in the appropriate manner. …
The Court imposes a term of imprisonment of sixteen months. It sets a non-parole period of eight months. The sentence will commence backdating it to 20 February 2011.
At the most recent sentencing hearing, held on 6 December 2011 in the District Court, Mr Uelese was sentenced to 36 months in custody. Three offenders were before the Court, including Mr Uelese’s brother. The trial had commenced in August 2011, and was adjourned to December, when Mr Uelese pleaded guilty to the following charges in regard to the events of 1 January 2010:
(1)Recklessly cause grievous bodily harm in company pursuant to s 35(1) of the Crimes Act 1900…
(2)Affray pursuant to s 93C(1) of the Crimes Act 1900…
(3)Assault occasioning actual bodily harm … contrary to s 59(2) of the Crimes Act 1900.
The offences were committed on the morning of 1 January 2010 when Mr Uelese, in the company of others, responded with violence to what they interpreted as insults from a house where a New Year’s Eve party was taking place. Three persons who had been at the party were injured and were taken to hospital.
In his evidence Mr Uelese told me that in relation to the incident that took place on 1 January 2010, that it was a wild night, and that he and his friends were under the influence of alcohol. Notwithstanding the charges, and the Court’s findings that he was involved in the assault and affray, Mr Uelese maintained before me that he had tried to stop the fight. He said that he did not have much of a role in the fight, and that he had pleaded guilty simply to end the matter. Her Honour Judge Ashford noted however, from the agreed facts, that the results of the DNA analysis revealed that the blood of two of the victims was on items of clothing and footwear worn by Mr Uelese.
In sentencing the offender on 6 December 2011, her Honour noted from the pre-sentence report that he had three children, and that the relationship with their mother ended in November 2005. Her Honour stated as follows:
Prior to entering custody he was apparently residing with his mother and siblings and upon release from custody plans to continue living in that residence. … He advised Probation and Parole that he had been offered employment upon release from custody.
He appears to have had problems with alcohol from an early age and said that on the day of the offences he had consumed six drinks over a four-hour period. He advised he was unable to recall the sequence of events on the night of the offence and Probation and Parole did not believe him to comprehend the seriousness of his actions or take responsibility for his behaviour.
…
It appears he has limited insight into his behaviour and this offence, and thus I am of the view he has guarded prospects of rehabilitation. It has been submitted that special circumstances could apply in relation to his relatively young age and the fact that he does require supervision and participation in programmes in relation to anger and alcohol. [Emphasis added]
Her Honour sentenced Mr Uelese to 36 months in prison for recklessly cause bodily harm, and six months for affray, and recommended drug and alcohol and anger management programs to address violent and aggressive behaviour.
In summary, Mr Uelese’s criminal conduct has been serious, primarily because of the frequency and cumulative effect of his repeat offending, which is reflected in the sentences imposed.
My consideration of the nature and seriousness of Mr Uelese’s conduct which I find has been serious in terms of clause 9.1.1 of Direction no. 55, is that it weighs heavily in favour of cancelling his visa. I moved then to consider the risk to the Australian community of the Applicant committing further offences.
The risk to the Australian community should Mr Uelese commit further offences or engage in other serious conduct
In considering the application of clause 9.1.2 of Direction no. 55, I must 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. I note further that clause 9.1.2.(1) states that 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. I must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should Mr Uelese engage in further criminal or other serious conduct; and
(b) the likelihood of him engaging in further criminal or other serious conduct, taking into account information and evidence on the risk of him re-offending, and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since his most recent offence.
Mr Uelese’s evidence was that he realises that he has alcohol and anger management problems, and that he has grown-up, particularly since his most recent incarceration. He expressed remorse for his actions and the effect on his victims. He said that he hated prison. He told me that while incarcerated, he and Ms Fatai had decided they would marry when he was released, and he would have a relationship where he would look after his family, be a good father, and be able to support his children whom he loves. He said that he would never re-offend. In relation to the 2005 assault where he slapped his partner, Ms Fatai, he said that he remembered they had been drinking, and arguing, but that he could not recall what the argument was about. In relation to assaulting his mother-in-law in October 2010, he said that he should have known better and walked away.
When asked in cross-examination what had changed since he committed the assault on his partner in 2005 which led to a separation from her, Mr Uelese said that he was communicating with people properly, and building a good reputation. That was not obvious to me given his conviction in 2007 for supplying a prohibited drug, and the further violent acts which he committed in 2010, and of which he was convicted in 2011. Mr Uelese’s responses as to why he did not address his alcohol and anger management issues after the 2005 assault, did not satisfy me that he had made an effort in prison or when he was in the community to do so.
Ms Watson submitted that the relationship with Ms Fatai had been hot and cold for quite some time, and that Mr Uelese had stated he intended to live with his parents when he was released. That was inconsistent with his evidence before the Tribunal, but he may have indicated that in his documentation because there was still an AVO involving Ms Fatai senior extant at that time.
The Respondent referred to a Case Note Report dated 24 November 2011 that stated that while trying to discuss the offence he laughed and his body language he was displaying was inappropriate. He did not appear to … take responsibility, comprehend the seriousness of his actions, or verbalise the affects his actions had on the victims.
Her Honour Judge Ashford, in sentencing Mr Uelese in relation to the 1 January 2010 offences, stated as follows in relation to his attitude:
… He advised he was unable to recall the sequence of events on the night of the offence and Probation and Parole did not believe him to comprehend the seriousness of his actions or take responsibility for his behaviour.
…
It appears he has limited insight into his behaviour and this offence, and thus I am of the view he has guarded prospects of rehabilitation. [Emphasis added]
I also heard from Mr Probets, the psychologist who examined Mr Uelese only a few days before the hearing. He stated in his report, which was Exhibit A10, that if the Tribunal were to give effect to Mr Uelese’s stated wishes that he remain in Australia to become a good and law-abiding citizen, in his opinion the risk of re-offending was in the range of 10 – 20 percent, depending on whether or not he undertook the recommended treatment. He stated that Mr Uelese posed a low risk of reoffending, as he has matured and fully realised the consequences of his actions.
In his report, Mr Probets also stated that: Although Peter Uelese is quite distressed and acutely aware of his need for help, his low energy level, tension, and withdrawal may make him difficult to engage in treatment. In his oral evidence, Mr Probets contradicted himself, saying that notwithstanding Mr Uelese had not engaged much in the way of rehabilitation while incarcerated, things were different now, he was more mature and motivated, and in his opinion he would undertake courses and do quite well. He referred to extrinsic and intrinsic factors at play, including the impact of the realisation of the visa cancellation (an extrinsic factor).
I was however concerned that only a few days before the hearing at the Tribunal, Mr Probets recorded Mr Uelese as telling him a version of events with which the facts did not accord:
·that the criminal record was not as bad as it appeared as he had pleaded guilty to the charges of violence even though there were mitigating circumstances involved (pleas of convenience).
·In regard to the 8 October 2010 assault on Ms Fatai senior, saying: … she “went off her head” and threw a bottle at him and he pleaded guilty to the assault charge. He stated that he had asked her to keep her noise down and he struck her once only.
·In regard to the 1 January 2010 incident: He saw a group of them fighting [boys who live around the corner form his parents], and he tried to stop it and “took the rap” as he was offered a deal if he pleaded guilty.
In consideration of the findings of the Court, I was not satisfied that Mr Uelese’s attitude as expressed to the Tribunal and to Mr Probets with regard to his role in the 1 January 2010 incident. He said he pleaded guilty, but that he had actually been there to stop a fight. The version of events recorded by Mr Probets as given to him by Mr Uelese regarding the 8 October 2010 incident with Ms Fatai senior was also inaccurate.
Mr Probets had stated in his report that: Peter Uelese describes himself as rather moody and others may view him as overly sensitive. He may be dissatisfied with his more important relationships and uncertain about major life goals. When asked whether he agreed that Mr Uelese had issues with self awareness, Mr Probets agreed.
I am mindful that based on the information provided by Mr Uelese, Mr Probets, in his report, assessed the risk of re-offending as low, in the range of 10 – 20 percent, that is, 10 percent if Mr Uelese addresses his self awareness problems, and alcohol consumption and anger problems, and 20 percent without. Having been fully informed of the actual severity of the crimes, Mr Probets revised his opinion to medium risk, being 20 percent if Mr Uelese undertakes treatment and training, and 40 percent if he does not.
I noted Mr Uelese’s evidence and that of others to whom I shall refer, that it was the realisation that the visa cancellation had taken place, which led to a change in his attitude to re-offending. Ms Fatai said in her statement at Exhibit A5, that she had been visiting Mr Uelese in prison and have seen good changes and a positive attitude from him which in his heart he is totally remourseful [sic] and sorry for his past behaviour … . Mr Uelese’s father also gave evidence and stated at Exhibit A4: I can see a change of heart in my son. Mr Sio (Exhibit A3), stated: … Peter Uelese should not be deported out of this country as he has already made a life here in Australia. Priscilla Ropati and David Valvao stated at Exhibit A8: We understand that he has made mistakes in the past but the learning’s [sic] that he has gained from them has helped mold [sic] him into the new person he is today. Mr Biasutti stated at Exhibit A9: I have spoken to Peter Uelese recently and he has affirmed that he has matured and learnt valuable life lessons … . The President of the Samoan Catholic Community Plumpton Parish praised Mr Uelese for his ability to share experiences with the youth of their community to teach them that life can be truly a blessing or severely damage one’s reputation.
Having heard the evidence, I then had to turn to consider the risk to the Australian community should Mr Uelese commit further offences or engage in other serious conduct. The uncontroverted evidence before me is that Mr Uelese has taken very few measures both in prison, and when he has been in the community to deal with his alcohol consumption and the violent expressions of his anger. These are the very factors which have led him to commit escalating violent crimes, over a period of years, including assaults against his partner and her mother. I have already noted his evidence that he attended AA meetings on a couple of occasions, and that he commenced a program, specifically for members of the Pacific Islander community when he was at Parklea Correctional Centre, but that he was unable to continue with it when he was moved to Bathurst Correctional Centre because it was not offered there. There is no evidence he undertook any other courses in prison to assist him with his problems, or that he has investigated any which are available in the community.
I am satisfied from the evidence that Mr Uelese did not attempt to address his alcohol and anger issues during the times when he has been living in the community, and that he has continued to offend.
Having regard to this evidence, I am of the view there is a real risk Mr Uelese may reoffend in the future. A real risk of recidivism is one which is not far-fetched or fanciful, and can include a low or minimal risk: Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 40 FCR 493. The nature of the harm he may cause if he continues to consume alcohol and engages in acts of violence may cause further harm to family members, other persons or property.
Given this risk, the issue for consideration is whether the nature of the risk is unacceptable. As noted in clause 9.1.2(1), 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. This principle is consistent with the comments of Davies J in Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81 as follows:
The seriousness of the crime is an important consideration. The more serious the offence the greater the affront there has been to the community and the greater the necessity there is to preclude recidivism.
The nature of the offence is of particular significance in the case of an immigrant who, in substance, seeks to remain in Australia so as to become fully absorbed into the Australian community. Yet, by the nature of his crime, he may have placed himself among the class of persons whom Australia will not accept for entry. The community may prefer to deport the criminal because he no longer meets the criteria which the community, having a choice as to who will and who will not become members of its community, has laid down for entry to Australia…
I have noted above Mr Uelese’s statements that he feels remorse for his crimes, and has recently come to a realisation of the impact of his actions on others. I have also noted above, the evidence of persons who gave their support to him at the Tribunal.
However, given Mr Probets’ report of the recent assessment of the Applicant, the Corrective Services records mentioned above, and her Honour Judge Ashford’s comments, I am not satisfied that Mr Uelese has insight into his actions. He has not looked into any courses in connection with his alcohol consumption or anger management, and I am not satisfied that he would engage in those if permitted to remain in Australia. Mr Probets considered that the risk of reoffending was medium, being 20 percent if Mr Uelese undertakes appropriate treatment and training, and 40 percent if he does not.
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; 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.
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.
In considering the strength, duration and nature of Mr Uelese’s ties to Australia, I am mindful that he was first convicted of a criminal offence in 1999, only approximately 17 months after arriving in Australia, when he was 15 years old. As noted above, he was then convicted of offences, several with violence involved, on at least five other occasions, and has spent time in custody.
Mr Uelese has resided with his parents and siblings and has had an on/off relationship with Ms Fatai for approximately 12 years. They separated in 2005 after Mr Uelese had an argument with Ms Fatai and slapped her; a conviction ensued. As stated above, they have three children. Mr Uelese senior gave evidence at the Tribunal. He said that he sees the children every weekend. His statement was Exhibit A4.
Ms Fatai also gave oral evidence at the Tribunal, and stated that she knows the Applicant’s family and spends time with them, and that the children and she spend some nights there. I am mindful she and Mr Uelese have not lived together as a family unit for any length of time, although following the separation in 2005, they resided together for approximately two months in 2010, and separated again after Mr Uelese assaulted Ms Fatai’s mother in October 2010. Ms Fatai told me that Mr Uelese is still subject to an AVO in relation to her mother, but that her mother has forgiven him, and thinks he has changed. I did not have evidence before me from Mr Uelese’s mother in order to corroborate that comment.
Ms Fatai, who works in a fulltime job outside the home, has her children minded after school in Mr Uelese’s family home on some days. She and Mr Uelese senior also gave evidence that she currently spends a night a week or during the weekend at the Uelese family home with her children.
I have noted above, the evidence of the witnesses who gave evidence, and those who provided statements to the Tribunal. Mr Uelese has some ties with the community in regard to the employment he has undertaken, an association with Mr Temur through his brother and his work, and the Samoan Church. The other persons who provided evidence praised him as a good father, and Mr Sio noted that Mr Uelese has made a life in Australia.
However, from the evidence before me, I am not able to find that Mr Uelese has contributed positively to a large extent to the Australian community in the terms of clause 9.2 of Direction no. 55. As noted above, he has had some employment, and he has family ties, and a relationship with his partner, children, parents and siblings. Further, Ms Fatai and her children are Australian citizens, and they would all miss him if he were not permitted to remain in Australia. The children would also be deprived of having a fulltime father even though he has not been that to them in the past.
I find that the consideration of clause 9.2 weighs somewhat in Mr Uelese’s favour.
Best interests of minor children in Australia affected by the decision
Direction no. 55 requires that the Tribunal determine whether visa cancellation is, or is not in the best interests of the child, and, indeed, children under the age of 18 years: clauses 9.3(1), (2), (3).
Clause 9.3(4) lists a number of factors that must be considered where relevant in respect to each child. They include:
·the nature and duration of the relationship between the child and Mr Uelese;
·the extent to which he is likely to play a positive parental role in the future;
·the impact of his prior conduct and any likely future conduct;
·the likely effect that any separation from Mr Uelese would have on the child;
·whether there are other persons who already fulfil a parental role;
·any known views of the child;
·evidence that the person has abused or neglected the child; and
·evidence that the child has suffered or experienced any physical or emotional trauma arising from Mr Uelese’s conduct.
As already stated, Mr Uelese has been involved in an on and off relationship with Ms Fatai for approximately 12 years, and they have three children aged eleven, eight and six. No evidence was able to be led regarding a further two children of another woman, aged approximately five and four whose names appeared as visitors in a Department of Corrective Services Inmate Profile Document because there was no information relating to them contained in a written statement provided to the Minister at least two business days before the hearing as required by section 500(6H) of the Act. I cannot take any consideration of their situation into account in coming to a decision in this matter, although I note that Ms Fatai said that she knew their mother, and that the children come to the Uelese home. Without any information about these children, other than a small amount of information that was provided by Ms Fatai under cross-examination, I am unable to determine whether or not visa cancellation would be in the best interests of these children.
The evidence before me is that the most recent breakdown of the relationship with Ms Fatai was in October 2010, after Mr Uelese assaulted her mother. Department of Corrective Services documents, produced under summons, record Mr Uelese’s intention, that on release from prison, he would be returning to reside with his parents. However, the evidence of both Mr Uelese and Ms Fatai at the Tribunal was that while he was still in prison, they had been planning to marry in early 2013, and that they were still looking forward to that being possible. It is likely that Mr Uelese stated on his form that he would be living with his parents because there is still an AVO extant with respect to Ms Fatai senior.
There was evidence before me to satisfy me that Ms Fatai and her children visited Mr Uelese in prison, and that they have been doing so while he has been at Villawood.
As to the last three factors identified above; the children are quite young, and were not asked to give any evidence. There is no evidence that Mr Uelese has abused or neglected the children, and I do not have evidence to satisfy me that any of the children have suffered or experienced any physical or emotional trauma arising from Mr Uelese’s conduct. He said that he contributed to their upkeep financially, but was indefinite on the timing or amounts. I am satisfied that because he has only worked sporadically, any payments he may have made has also been on that basis.
I am mindful that although Ms Fatai’s evidence on whether she and the children would join Mr Uelese if he were to be returned to New Zealand was equivocal, she did not exclude that possibility.
I am satisfied from the evidence that if Mr Uelese were to deal with his alcohol and anger problems on his release as he indicated he would, on balance he would be likely to continue in a loving relationship with Ms Fatai and their children. Mr Probets put the risk of re-offending at 20 percent if Mr Uelese undertakes the appropriate treatment and training. However, given the history to date, there is no assurance he will do so. Nevertheless, if Mr Uelese takes his role as a father seriously as he says he intends to do, then a consideration of the best interests of Mr Uelese’s children weighs against cancelling Mr Uelese’s visa.
OTHER CONSIDERATIONS
Clause 10 of Direction no. 55 provides a non-exhaustive list of other considerations that must be taken into account, if relevant. The first non-primary consideration listed in clause 10 is the effect of cancellation 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. There is no dispute that if Mr Uelese’s visa is cancelled and he is required to leave Australia, his immediate family, which include his parents, siblings, Ms Fatai and the children, will all be adversely affected. His partner Ms Fatai and their children are Australian citizens. Ms Fatai has considered whether she would move to New Zealand if Mr Uelese has to leave Australia. She told me in her evidence in chief that although she did not want to leave Australia, if Mr Uelese had to, she would go too. She added that she has never visited New Zealand, and that whilst she is an Australian citizen, her origins are Tongan. In replies to questions in cross-examination, she said however that she had thought about possibly relocating to New Zealand, but that the education the children could obtain would be better in Australia. I note that if Ms Fatai decided to move to New Zealand she would have to leave her employment here, and that she would be separated from family and extended family, including Mr Uelese’s family.
I am also required to consider what the impact on Mr Uelese’s victims of crime would be. I know that Ms Fatai felt strongly enough regarding Mr Uelese’s assault upon her in 2005, to end their relationship for a time. She felt similarly after he assaulted her mother in 2010, although the evidence before me was that the couple had reconciled during Mr Uelese’s recent incarceration, and were planning to marry in early 2013. Ms Fatai senior was sufficiently frightened of Mr Uelese to take out an AVO against him following the events of 2010; that is still current.
I note that the factor relating to impact on Australian business interests if Mr Uelese were to be removed from Australia is not relevant in this matter.
I have considered Mr Uelese’s situation in regard to clause 10(1)(d), and considered any impediments he would face in being returned to live in New Zealand. I am satisfied that because he lived there for approximately the first half of his life, he will face fewer difficulties than otherwise. He speaks the language, knows the culture, and has no particular health problems for which he cannot obtain assistance there. If he intends to improve his life by dealing with his alcohol and anger management problems, he will be able to access services to assist him in New Zealand. I do not underestimate that it is likely to be difficult, particularly at first, and that he will miss his family in Australia. However there are means of communication easily available in order to keep in touch, and there is no impediment that I know of that would prevent his family visiting him there.
Having regard to these matters, I find that this consideration weighs somewhat against the cancellation of Mr Uelese’s visa.
CONCLUSION
In order to come to a conclusion, regarding whether the discretion should be exercised for Mr Uelese’s visa to not be cancelled, I have had to consider the primary and other considerations listed in Direction no. 55, and any other matters that may be relevant. In doing so, I have been mindful of what the Tribunal (Justice Downes, the former President, and Senior Member McCabe) observed in Re Visa Cancellation Applicant and Minister for Immigration and Citizenship [2011] AATA 690 at [49]:
The balancing process contemplated by the Direction is not a simple mechanical exercise. One does not reach a conclusion by assigning values to particular considerations and tallying the differences. Beginning with each of the primary considerations – and without forgetting other considerations that are generally regarded as being of lesser weight – we must ask ourselves: what is the preferable decision in this case?
The Tribunal in that case was commenting on the predecessor to the current Direction, being Direction [no. 41] – Visa refusal and cancellation under s501, which differs in a number of respects to the current Direction. However, the task and its inherent difficulty remains the same.
I have also had to make a determination of whether the risk of further harm to the Australian community by the applicant is unacceptable. I am mindful that crimes of violence are of major concern, and that Mr Uelese has assaulted both his partner and her mother as well as strangers. The risk of reoffending put by Mr Probets was as discussed above, 20 percent if Mr Uelese undertakes treatment and training to control his alcohol consumption and anger, and 40 percent if he does not. That is a medium risk according to Mr Probets. I accept that.
In regard to a consideration of clause 9.1 of Direction no. 55, protection of the Australian community; it is not in dispute that the nature and seriousness of Mr Uelese’s conduct to date is that he has engaged in serious criminal activity, involving violence, to the extent that he has been found to not pass the character test. I have discussed the risk to the Australian community should he commit further offences or engage in other serious conduct in the paragraphs above. Ultimately, I have found that having regard to these matters, I find that the consideration of clause 9.1 weighs heavily in favour of cancellation of Mr Uelese’s visa. The risk of further harm to the Australian community by the Applicant is unacceptable.
In regard to a consideration of clause 9.2 of Direction no. 55 with regard to Mr Uelese’s ties to Australia; I have not been able to find that Mr Uelese has contributed positively to a great extent to the Australian community in the terms of clause 9.2. However, he has been in the workforce sporadically, and friends, and the President of the Samoan Catholic Community Plumpton Parish have spoken positively of him. Mr Uelese also has family ties, a partner, children, and a relationship with his parents and siblings. Further, Ms Fatai and her children are Australian citizens. I find that the consideration of clause 9.2 weighs somewhat in his favour.
In regard to a consideration of clause 9.3 of Direction no. 55 the interests of minor children; I am satisfied from the evidence that if Mr Uelese deals with his alcohol and anger problems on his release as he has indicated he would, on balance he is likely to continue in a loving relationship with Ms Fatai and their children. Accordingly, I find that a consideration of the best interests of Mr Uelese’s children weighs against cancellation of Mr Uelese’s visa.
There are no relevant considerations in relation clause 9.4 of Direction no. 55.
In regard to a consideration of clause 10 of Direction no. 55, other considerations; I find that this consideration weighs somewhat against the cancellation of Mr Uelese’s visa.
Notwithstanding that the best interests of Mr Uelese’s children weigh against cancelling his visa, and a consideration of clause 9.2, weighs somewhat in his favour, ultimately, an assessment of the primary considerations, and primarily the protection of the Australian community, weigh heavily in favour of cancellation.
Of course Mr Uelese’s family will miss him, and he in turn, will miss them. However, I am satisfied that Mr Uelese is not likely to experience any significant hardship on his return to his native New Zealand.
For the reasons I have discussed above, and viewing the situation of the various primary and other considerations cumulatively, on balance, consideration favours the decision to cancel the applicant’s visa. The correct or preferable decision is that I affirm the decision under review.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding eighty six (86) paragraphs are a true copy of the reasons for the decision herein of Senior Member G Ettinger. ..........[sgd].............................................................
Associate
Dated 14 November 2012
Dates of hearing 31 and 31 October 2012 Solicitor for the Applicant Mr Killalea, KTG Lawyers Solicitor for the Respondent Ms D Watson, Australian Government Solicitor
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