Poa Takitaki and Minister for Immigration and Citizenship
[2012] AATA 811
•20 November 2012
[2012] AATA 811
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/3893
Re
Poa Takitaki
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Hon B Tamberlin, QC, Deputy President Date 20 November 2012 Place Sydney The decision under review is affirmed.
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Hon B Tamberlin, QC, Deputy President
Catchwords
MIGRATION AND CITIZENSHIP – visa cancellation – character test – substantial criminal history – seriousness of conduct and risk of further offending – protection of Australian community outweighing all other factors – decision under review affirmed.
Legislation
Migration Act 1958 (Cth) ss 499, 501
Secondary Materials
Direction [no. 55] – Visa refusal and cancellation under s 501
REASONS FOR DECISION
Hon B Tamberlin, QC, Deputy President
20 November 2012
The Applicant seeks review of a decision by the Respondent’s delegate dated 22 August 2012 to cancel the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa. The Applicant is a male citizen of New Zealand who was born on 9 May 1980 in the Cook Islands. He has made several visits to Australia prior to his present entry. He most recently arrived on 31 August 2009. He has always expressed an intention to remain in Australia as a visitor or temporary entrant.
The Applicant, prior to coming to Australia, had a substantial criminal record in New Zealand, which is detailed below as follows:
Offence
Date of result
Date of offence
Result
Male assaults female (manually)
8 June 2009
14 March 2009
Convicted
Assaults with intent to injure (manually)
8 June 2009
1 January 2009
Convicted
Male assaults female (manually)
8 June 2009
21 December 2008
Convicted
Common assault (manually)
15 October 2007
8 October 2007
Convicted and sentenced: community work (SA) 15 October 2007 – 60 hours
Failure to answer District Court Bail
4 March 2002
12 February 2002
Convicted and sentenced: non-residential periodic detention – 4 March 2002 – 4 months
Wilful damage
4 March 2002
1 December 2001
Convicted and sentenced: non-residential periodic detention – 4 March 2002 – 4 months
Common assault (manually)
4 March 2002
1 December 2001
Convicted and sentenced: non-residential periodic detention – 4 March 2002 – 4 months
Disorderly behaviour s 4 S/Offences Act
3 October 2001
15 June 2001
Convicted and sentenced: community service – 3 October 2011 – 100 hours
Drove with excess breath alcohol – 3rd or subsequent blood/breath = 806
8 June 2009
11 March 2009
Convicted
Drove while disqualified – 3rd or subsequent
8 June 2009
11 March 2009
Convicted
Breath alcohol level over 400 mogs/litre of breath blood/breath = 514
12 September 2008
6 September 2008
Convicted and sentenced: community work (SA) – 12 September 2008 – 60 hours/disqualification from driving – 15 December 2008 – 1 year
Drove while disqualified – 3rd or subsequent
12 September 2008
6 September 2008
Convicted and sentenced: community work (SA) – 12 September 2008 – 60 hours/disqualification from driving – 15 December 2008 – 1 year
Drove while disqualified
7 January 2008
29 December 2007
Convicted and sentenced: community work (SA) – 7 January 2008 – 60 hours/’cumulative on 07006002486’/disqualification from driving – 15 April 2008 – 8 months
Drove while licence suspended or revoked
15 October 2007
8 October 2007
Convicted and sentenced: community work (SA) – 15 October 2007 – 60 hours/disqualification from driving – 15 October 2007 – 6 months
Breath alcohol level over 400 mogs/litre of breath blood/breath = 907
3 October 2001
17 July 2001
Convicted and sentenced: community service – 3 October 2001 – 100 hours/disqualification from driving - 3 October 2001 – 7 months
Failed to comply with prohibition by enforcement officer
3 October 2001
17 July 2001
Convicted and discharged
The Applicant has also been convicted and sentenced in respect of a number of offences since his last arrival in Australia, details of which are as follows:
No.
Offence
Date offence occurred (whether in breach of bond and/or on bail)
Date of sentence
Sentence imposed
1
Aggravated robbery
5 June 2010
(committed whilst on good behaviour bond for low range prescribed concentration of alcohol (PCA), and on bail for common assault and resist police, granted on 4 June 2010)
12 September 2011
Imprisonment 40 months; non parole period 19 months
‘Matters taken into account on form 1’ (see below at [9])
2
Use offensive language in/near public place/school
Resist officer in execution of duty
Behave in offensive manner in/near public place/school
5 June 2010
(committed whilst on good behaviour bond for low range PCA; on bail for common assault and resist police)
12 September 2011
Convicted: no penalty imposed
3
Drive with low range PCA (see below at [11])
17 January 2010
12 September 2011
Convicted: no penalty imposed. Licence disqualified for 6 months
4
Assault with act of indecency (2 charges)
21 January 2011
(committed whilst on good behaviour bonds; on bail for common assault and resist police)
10 June 2011
On each charge: imprisonment 12 months, commencing 17 October 2012
5
Common assault (see below at [10])
2 June 2010 (assault against a security officer)
(committed whilst on good behaviour bond for low range PCA)
10 June 2011
Bond revoked. Imprisonment 4 months commencing 17 October 2012
6
Resist or hinder police officer in the execution of duty (see below at [10])
2 June 2010
(committed whilst on good behaviour bond for low range PCA)
10 June 2011
Bond revoked. Imprisonment 4 months commencing 17 October 2012
7
Destroy or damage property ≤ $2000
23 December 2010
(committed whilst on good behaviour bonds for common assault and resist police)
10 June 2011
Convicted; released on bond for 6 months
8
Common assault
8 April 2011 (assault against school girl)
(committed whilst on good behaviour bonds re common assault and resist, and on bail)
10 June 2011
Convicted; released on bond for 2 years
9
Common assault (see above at [1])
5 June 2010
(committed whilst on good behaviour bond for low range PCA; on bail for common assault and resist police, granted on 4 June 2010)
16 December 2010
‘Taken into account on form 1’
10
Resist or hinder police officer in the execution of duty
Common assault
2 June 2010; released on bail 4 June 2010
21 October 2010
On each charge: convicted; released on bond for 12 months
11
Drive with low range PCA
17 January 2010
3 February 2010
Without conviction; adjourned to be of good behaviour for 12 months
Under s 501(2) of the Migration Act 1953 (the Act) the Minister has power to cancel a visa if the Minister reasonably suspects that the person does not pass the character test, and the person does not satisfy the Minister that he or she passes the character test.
Under s 501(6), a person does not pass the character test if the person has a substantial criminal record. In the present case, there is no dispute that the Applicant has a substantial criminal record, and therefore the Minister, can exercise the discretion to cancel the Applicant’s visa, having regard to relevant considerations and taking into account, in particular, the guidelines and directions given.
The Minister has made written directions pursuant to s 499 of the Act which applies to the Tribunal when performing its function of exercising the power under s 501 of the Act, to refuse or cancel a visa if a person does not satisfy the Minister that he or she passes the character test, namely Direction [no. 55] – Visa refusal and cancellation under s 501 (the Direction). This Direction set out the objectives of the Act; give some general guidance, and set out a range of specific matters to be taken into account when exercising the discretion. These relate to the way in which the character test is to be approached. The matters are set out in Part B of the Direction and comprise four primary considerations which must be taken into account in every case, and other considerations which are to be taken into account where relevant.
The primary considerations are:
(a)Protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
(b)Whether the person was a minor when he or she began living in Australia;
(c)The length of time the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct;
(d)Relevant international obligations including the best interests of any child under the non refoulement obligations of the Refugees Convention and other conventions concerning civil and political rights and punishment.
The Direction set out a number of objectives including the purpose of safeguarding the Australian community from unacceptable risks of harm, as a result of criminal activity or other serious conduct by non-citizens and, in particular, the safety of the community’s more vulnerable members including minors, the elderly and the disabled.
Paragraph 9.1 of the Direction provides general guidance to decision-makers when considering the protection of the Australian community, namely the need to consider the nature of any harm that the person concerned may cause to the Australian community and the risk of that harm occurring.
PRIMARY CONSIDERATIONS
Protection of the Australian Community
In considering this primary consideration, the Tribunal is required to have regard to the principle that remaining in Australia is a privilege that the Act confers on non-citizens in the expectation that they are and have been law abiding, and will respect important institutions and will not cause or threaten harm to individuals in the Australian community: paragraph 9.1 of the Direction.
Consideration must be given to the nature and seriousness of the Applicant’s conduct and the risk of further reoffending or engaging in other serious misconduct.
As can be seen from the criminal records set out in paragraphs 2 and 3 above, the Applicant has a lengthy history of repeated continuous violent crimes, including sexual assaults. In New Zealand, the more serious offences date back to October 2007. His criminal record in that country extends back to 2001 and demonstrates a history of disregard for the law, particularly in relation to drunken driving and driving while disqualified.
In Australia, his record from 2010 evidences a continuation of crimes of violence, disregard for authority, drunken driving and serious repeated assaults including sexual assaults and in one case the offence related to a minor who was a school girl.
His most recent offences attracted substantial sentences of imprisonment in the order of 44 months in total.
The Tribunal gives considerable weight in this case to the fact that a number of the offences involve violence, and one assault was on a minor. The sentencing remarks of Judge Sides on 12 September 2011, concerning the circumstances of a violent robbery, an offence which attracts a maximum penalty of 20 years, are particularly cogent.
The Applicant’s criminal records indicate a continuous pattern of repetitive misconduct over a lengthy period. It is also clear that the Applicant gave false information to the authorities on several occasions during entry into Australia by failing to disclose his criminal records to the immigration authorities.
The Direction, at paragraph 6.3, states serious crimes, including crimes of violence or of a sexual nature, and particularly where committed against vulnerable members of the community, are generally expected to lead to a denial of the privilege of staying in Australia. This is a particularly relevant and important guideline in the present case.
Paragraph 10.1.2 of the Direction emphasises that the previous general conduct and total criminal history of the person are highly relevant to assess in any risk of reoffending. It also states that weight should be given to evidence from independent and authoritative sources, such as judicial comments, professional psychological reports, and pre-sentence reports, and to evidence that the person has breached judicial orders, including parole and bail bonds. The sentences imposed for an offence are considered indicative of the seriousness of the offender’s conduct against the community.
In general, it can be accepted that the tolerance of the Australian community for risk of future harm becomes lower as the seriousness of the criminal conduct increases.
The evidence in this case, including the records of conviction, making it clear that alcohol has been a major factor in the criminal conduct of the Applicant over the past 11 years. The evidence is that over a long period he has regularly consumed very large quantities of alcohol and he has associated with peer groups where alcohol is a central feature of the association.
Whilst he has been in prison, he has not had access to alcohol, but there is no reliable indication that, despite his assertions to the contrary, he will be able to overcome this addiction and curb the patterns of behaviour that have resulted in serious dangers to other persons of the Australian community in the past.
In evidence there are a number of separate assessments and reports in relation to the Applicant made over the past 12 months which indicate that:
·he is in the “high” relative risk ratio category for the likelihood of sexual recidivism. There is a need for treatment. The rate of risk posed by him was almost three times that applied for a “typical” sexual offender.
·he has not completed rehabilitation programs whilst in custody to some extent because he could not comprehend the content of the courses and had limited cognitive ability.
·he has engaged in aggressive and intimidatory behaviour to other group members.
·he did not have substantive community support.
·he did not take responsibility for his behaviour.
·he does not cope well with stress.
·he has an entrenched binge pattern of alcohol abuse.
There was some conflict on the question of recidivism between two assessments in April and May which indicates a real change of recidivism but I prefer the latter report, as it is more consistent with his actual criminal record in relation to sexual offences particularly.
I have also taken into account that in her sentencing remarks Judge Sides was pessimistic about the prospects of him ceasing to offend in the future.
In the sentencing remarks of Magistrate Knight on 10 June 2011, in relation to the offence of common and indecent assaults, expressed concern about the risk that the Applicant posed to the public, particularly because it involved attack on strangers. The random nature of the attacks means that it is more difficult to protect any particular member of the community.
I am not persuaded that any rehabilitation program he has or may engage in the future will significantly reduce the strong probability of repetition of his entrenched tendencies of criminal conduct, particularly under the influence of alcohol.
Having regard to the consistent and lengthy pattern of repeated conduct in breaching court orders and disobeying authority figures, I do not consider he will be effectively deterred by the fact of his punishment to date or the prospect of future punishment if he resides in Australia.
The Applicant gave no specific information as to future accommodation or work prospects upon release into the Australian community. I consider that without substantial community support and a willingness to undertake substantial rehabilitation training, he will revert to his previous conduct and drinking pattern and thereby be a very real and substantive risk to the community.
The Applicant has referred to his relationship with an uncle and has led evidence from a companion, Ms Smith. The uncle holds a position in a church organisation and appears to have cared for the Applicant and considered him to be a worthwhile person, and is persuaded that this relationship would be sufficiently effective to alter the conduct of the Applicant. However, the uncle has not regularly visited the Applicant in custody. I accept that he has a favourable regard for the Applicant. Nevertheless, the fact is whilst having this relationship with his uncle in the past, the Applicant has not been deterred from engaging in serious criminal conduct.
The Applicant has also referred to his relationship of many months with a Ms Smith, who gave evidence for him. She is a pensioner with whom the Applicant had lived with for some time. Ms Smith has witnessed at least one violent attack on property in her rented home by the Applicant, and she has had an apprehended violence order made to protect her against the Applicant. However, she said she has never seen him drunk and the evidence indicates that she has had a close and affectionate relationship with him. However, she is not fully apprised of the extent and details of his criminal conduct. She did express the impression that he had some underlying problem. She testified as to his warmth and general good behaviour. She has no financial means to support or assist him, being a pensioner of extremely modest means. The evidence indicates that this relationship would not be sufficiently strong and influential to remove the significant risk of the applicant constituting a danger to the Australian community if permitted to remain.
The conduct of the Applicant whilst in custody reinforces the fact that he has ongoing aggression and intimidation, notwithstanding that he was not under the influence of alcohol whilst in custody.
Having regard to the above matters, I consider that there is a high risk of recidivism to conduct which would endanger the Australian community, and therefore the Applicant’s behaviour as a consequence would pose a substantial and real risk to the Australian community if permitted to remain.
This primary consideration including the danger of recidivism is a most important matter which I give great weight in reaching my conclusion in this matter.
Ties to Australia
The Applicant has visited Australia on a number of occasions before his last entry on 31 August 2009 but he has not built any substantial ties in Australia. He has been convicted on a series of offences, since 2009 he has been in custody for much of the time. I do not consider that his relationship with his uncle or Ms Smith should be given significant weight. He has a wife and child in Hawaii and it appears a child in New Zealand. He has had little or no direct contact with any visitors whilst in prison, although he has received some letters and some small financial support from Ms Smith. There is no specific employment prospect if he were to be released into the community.
He has had some casual work in the past, but there is no evidence of a prospect of work of a permanent nature. It could not be said that he has made any significant contribution to the Australian community. This lack of firm proposals as to work association will lead to the danger that he would drift back into his previous pattern of drinking and violence.
Other Primary Considerations
Two other primary considerations are not relevant in this case, namely the best interests of minor children in Australia, as he has no minor children in Australia but children overseas, and the effect of international obligations or considerations. Accordingly, they carry no weight in relation to the visa cancellation.
OTHER RELEVANT CONSIDERATIONS
Apart from the primary considerations, a decision-maker must also have regard to four other considerations where relevant.
The Applicant has been in Australia for a relatively short period. There is no significant evidence that anyone in Australia would suffer any detriment or disadvantage if he does not remain here because he has no substantial relationships with anyone here. The Applicant has an adult step sister in Australia, but there is no evidence of contact. The only family member he has contact with is his uncle. There was evidence before me of a relationship with a Ms Smith, but she also has been a victim of the Applicant as have other members of the Australian community. I also note that he has some half siblings in New Zealand.
There is no evidence that he would suffer any undue detriment if returns to either Hawaii or New Zealand. He would not face any language or cultural barriers if her were to return to New Zealand or Hawaii. I have taken into account that he appears to have several significant convictions outstanding for which he has not yet been sentenced, and he could be subject to sentences if returned to New Zealand, but in my view this does not amount to a significant detriment in favour of his case.
Having regard to the evidence and the considerations referred to in the Direction, I am satisfied that there are no factors applicable to the Applicant outweighing the real and substantial risk he poses to the Australian community given his prior conduct and the very real risk that he will reoffend and that any offences committed will be serious.
CONCLUSION
Having regard to the above considerations and reasoning, I conclude that the Applicant does not pass the character test. Having regard to the Direction, I find that the protection of the Australian community outweighs all other factors. Accordingly, the discretion under s 501 of the Act should be exercised to cancel the Applicant’s visa.
The decision under review is therefore affirmed.
43. I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of
Hon B Tamberlin, QC, Deputy President
44.
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Associate
Dated 20 November 2012
Dates of hearing 29 October 2012 Applicant In person Solicitor for the Respondent Ms K Hooper, DLA Piper
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