RAMEKA VAETORU and MINISTER FOR IMMIGRATION AND CITIZENSHIP

[2013] AATA 33

[2013] AATA  33

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/5034
Re	RAMEKA VAETORU
APPLICANT
And	MINISTER FOR IMMIGRATION AND CITIZENSHIP
RESPONDENT

DECISION

Tribunal	Mr R G Kenny, Senior Member
Date	23 January 2013
Place	Brisbane

The Tribunal affirms the decision under review.

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

Mr R G Kenny, Senior Member

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – Class TY Subclass 444 Special Category (Temporary) Visa – cancellation – New Zealand citizen – entry to Australia in 2004 at age 25 years – substantial criminal record of serious offences and failure to comply with court orders – failure to pass character test – discretion to cancel visa – relevant considerations – on balance, primary and other considerations favour cancellation of visa – preferable decision is that visa be cancelled – decision under review affirmed.

LEGISLATION

Migration Act 1958 (Cth), ss 499, 501(2), 501(6), 501(7)

Child Protection Act 1999 (Qld)

CASES

Re Tucker and Minister for Immigration and Citizenship [2010] AATA 559

Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 390

SECONDARY MATERIALS

Direction [No. 55] – Visa refusal and cancellation under s 501

REASONS FOR DECISION

Mr R G Kenny, Senior Member

THE APPLICATION

1. Rameka Vaetoru applied to the Tribunal for review of a decision of a delegate of the Minister for Immigration and Citizenship (“the respondent”), dated 25 October 2012, cancelling his Class TY Subclass 444 Special Category (Temporary) Visa (“the visa”). The delegate’s decision was made under s 501(2) of the Migration Act 1958 (Cth) (“the Act”).

   ISSUES AND LEGISLATION

2. Under s 501(2) of the Act:

   2The Minister may cancel a visa that has been granted to a person if:

   (a)the Minister reasonably suspects that the person does not pass the character test; and

   (b)the person does not satisfy the Minister that the person passes the character test.

3. The “character test” is defined in s 501(6) of the Act which specifies various alternative circumstances in which a person does not pass the character test within the meaning of that section. In the present case, the relevant circumstance relied upon is that specified in s 501(6)(a) of the Act, namely, “the person has a substantial criminal record”. Under s 501(7) of the Act, five alternative circumstances are specified in which, for the purposes of the character test, a person has a substantial criminal record. In the present case, the relevant circumstances are those specified in s 501(7)(c) and (d) of the Act, namely:

   (c)the person has been sentenced to a term of imprisonment of 12 months or more; or

   (d)the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more;…

4. It is not disputed that Mr Vaetoru has been sentenced to terms of imprisonment of more than twelve months; that he been sentenced to two terms of imprisonment which total two years or more; or that he has a substantial criminal record under s 501(7) of the Act. The issue is whether the discretion in s 501(2) of the Act should be exercised to cancel the visa.

5. The Minister has issued Direction No. 55[1] (“the Direction”) under s 499 of the Act which is binding on those, including the Tribunal,[2] making decisions under s 501 of the Act.

   [1] Direction No. 55 – Visa refusal and cancellation under s501, dated 25 July 2012, commenced on 1 September 2012.

   [2] See s 499(2A) of the Act and the term “Decision-maker” in Annex B of the Direction.

6. In the Preamble to the Direction, the objective of the Act is stated to be the regulation, in the national interest, of the coming into and presence in Australia of non-citizens.[3] It provides that, if the decision-maker reasonably suspects that the person does not pass the character test and the person does not satisfy the decision-maker that he/she passes the character test, the decision-maker must consider whether to exercise the discretion to cancel the visa, given the specific circumstances of the case.[4] The Preamble also provides General Guidance including the following:[5]

   The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

   [3] See cl 6.1(1) of the Direction. A “non-citizen” is defined in s 5 of the Act as a person who is not an Australian citizen.

   [4] See cl 6.1(2) of the Direction. 

   [5] See cl 6.2(i) of the Direction. 

7. The Preamble to the Direction then sets out six Principles which must inform the exercise of the discretion whether or not to cancel the visa:[6]

   6.3 Principles

   1Australia has a sovereign right to determine whether non-citizens who are of character concern[7] 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.

   2A 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.

   3In 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.

   4Australia 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.

   5Australia 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.

   6The 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.

   [6] See cls 6.3 and 7 of the Direction.

   [7] The term “character concern” is defined in s 5C of the Act and Annex B of the Direction.

8. The Direction provides that “primary” and “other” considerations must be taken into account where relevant; that both primary and other considerations may weigh in favour of, or against, refusal or cancellation of the visa; that primary considerations should generally be given greater weight than the other considerations; and that one or more primary considerations may outweigh other primary considerations.

9. Three[8] of the four listed primary considerations are relevant in this matter:

   (a)Protection of the Australian community from criminal or other serious conduct;

   (b)The strength, duration and nature of the person’s ties to Australia; and

   (c)The best interests of minor children in Australia;…[9]

   [8] The fourth primary principle (International non-refoulement obligations) is not applicable in respect of New Zealand.

   [9] See cl 9(1). A “minor” is defined in s 5 of the Act as a person is who less than 18 years old.

10. Other considerations which must be taken into account in deciding whether to cancel a visa include the following:[10]

    (a)Effect of cancellation of the person’s visa 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;

    (b)Impact on Australian business interests;

    (c)Impact of a decision not to cancel a visa on members of the Australian community, including victims of the person’s criminal behaviour, and the family members of the victim or victims where that information is available and the person being considered for visa cancellation has been afforded procedural fairness;

    (d)The extent of any impediments that the person may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

    (i)      The person’s age and health;

    (ii)     Whether there are substantial language or cultural barriers; and

    (iii)    Any social, medical and/or economic support available to them in that country.

    [10] See cl 10 of the Direction.

    EVIDENCE

    Mr Vaetoru

11. Mr Vaetoru came to Australia in 2004 to attend the wedding of his sister, Ms Mahana Tangaroa. He was 25 years of age and was accompanied by his partner, his partner’s daughter and his two sons from another relationship. They decided to stay in Brisbane where they rented a house and Mr Vaetoru found employment in his trade as a welder. In New Zealand, he had used cannabis and been convicted of offences associated with that drug. In 2006, his drug usage continued when he experimented with and became a frequent user of the drug “ice” (crystal methamphetamine). This caused tensions with his partner which were compounded when he formed an association with another woman, Stacey. His partner returned to New Zealand with her daughter and his two sons and they have remained there since then. Mr Vaetoru maintains contact with them through telephone calls every three months or so.

12. The offences for which Mr Vaetoru was convicted in 2009 were committed in 2008 and these included attempts to obtain money to pay for his drug use. They also included an assault on Stacey for which he was sentenced to four months imprisonment. He has not been employed since 2008 and said that he had no legal source of income in that period.

13. In 2010, Mr Vaetoru met Jasmin Rigby and lived in a de facto relationship with her from about mid-2011. Their son Leon was born on 1 April 2012. Ms Rigby has four older children. Mr Vaetoru’s evidence was that Ms Rigby is serving a term of imprisonment and is currently accommodated in a hostel. Her children are in the care of the State child safety authority.[11] Leon is currently under a child protection order and is also in the custody of the child safety authority.[12] Mr Vaetoru said that this had been the case since he was a few days old. Mr Vaetoru has seen Leon on only two occasions. The first was for a period of two hours when Leon was brought to the prison. The second was at the Beenleigh Magistrates Court while Mr Vaetoru was on parole in early June 2012. On that occasion, Mr Vaetoru left after about five minutes because he believed he was wanted by the police. 

    [11] Department of Communities, Child Safety and Disability Services (Qld).

    [12] An order was made by the Beenleigh Magistrates Court on 29 November 2012 under the Child Protection Act 1999 (Qld): see exhibit 4.

14. The father of Mr Vaetoru and Ms Tangaroa died in New Zealand in July 2012. They have concerns for their mother’s health. One of Mr Vaetoru’s sons is staying with her in Auckland to assist her. Mr Vaetoru said that, if he retains his visa, his sister intends to have his mother and his two older sons come to Australia to live with her. They are the only relatives Mr Vaetoru has in New Zealand as his several uncles, cousins and some 20 siblings are now living in Australia. Ms Tangaroa is the only relative in Australia with whom he has maintained contact since arriving in Australia. If his visa is not cancelled, Mr Vaetoru will also live, initially, with his sister and then he and Jasmin will endeavour to regain custody of her four older children as well as Leon and live together. He said that he wanted to ensure that Leon “knows who is father is”. When asked about his other sons in New Zealand, he said that “they already know who their father is”. If Mr Vaetoru’s visa is cancelled, his mother and his two sons would stay in New Zealand and he would join them there. He confirmed as correct the statements he made on 24 August 2012[13] that he would not face any problems if he had to return to New Zealand; that he had no serious medical problems; and that his removal from Australia would not cause hardship to others.

    [13] See folios 84-85 of exhibit 1.

15. On being sentenced to prison on 1 June 2012, Mr Vaetoru was admitted to parole immediately. He was warned by the magistrate that the commission of any further offences would constitute a breach of parole which would see him back in prison. Mr Vaetoru said that conditions of his parole were that he live at a particular address and that he report weekly to his parole officer. He did not live at the nominated address but elected to live elsewhere with a friend. He reported in the first week to his parole officer but refused to undergo a urine test for drug use at that time. He failed to report on the following week. While at his friend’s place, he again used ice and this was the reason for refusing to give a urine sample. He said that he had not expected to be tested for drug use as he understood that there was a six week period following release when no tests would be conducted. He was found to have breached his parole and was returned to prison on 20 June 2012[14] to serve the remainder of his 18 months sentence. That breach of parole was committed when Leon was two months old.

    [14] See the sentence calculation sheet from the Department of Corrective Services (Qld) dated 23 July 2012 at folio 65 in exhibit 1.

16. Mr Vaetoru undertook “Ending Offending” and “Do It” rehabilitation courses in prison in May 2012. These were concerned with stress management and avoidance of relapsing into drug-taking. He described them as “pretty good” but agreed that he reverted to drug‑taking in the following month when released on parole. He was aware of other forms of rehabilitation courses available to him in prison especially in the last part of 2012. He has not undertaken any of these courses.

17. Since June 2012, Mr Vaetoru has had no visitors in prison. He received a letter from Jasmin a few days before the hearing and Mr Vaetoru said that she is aware of his possible visa cancellation.

18. Mr Vaetoru agreed that he had received a formal warning from the immigration authorities in February 2010 that any further criminal convictions could result in the cancellation of his visa with the consequence being his removal from Australia. He said he was aware of this prospect and had been aware of it even before he received the formal warning.  

19. While Mr Vaetoru accepted as correct the formal records of his convictions, he said that he did not commit the offences dealt with in the Beenleigh Magistrates Court on 1 June 2012. He described his involvement as that of an onlooker only and said that he pleaded guilty to protect his mates.

    Mahana Tangaroa

20. Ms Tangaroa is Mr Vaetoru’s sister. In her evidence, she agreed that Mr Vaetoru had come to Australia in 2004 for her wedding and had then stayed in Brisbane. She remained close to him until mid-2010 when they had a falling out over his drug usage. From 2006 until then, she had tried to discourage him from using drugs and committing offences by assisting him to seek work and by preventing his friends from visiting her house. By mid-2010, she was unable to cope anymore and she severed contact with him. In May 2012, their parents came to Australia for a family christening and they asked Ms Tangaroa to make contact with Mr Vaetoru. She did so and was surprised at the dramatic improvement in him in all regards. She believed his assertions at that time that he was no longer taking drugs and that he intended to remain drug free. She travelled to New Zealand when her father died in July 2012 and had no contact with Mr Vaetoru until December 2012. She has been in weekly telephone contact with him since then. She confirmed that, in the event his visa was not cancelled, Mr Vaetoru was to live with her and her family and that they would bring their mother and Mr Vaetoru’s two sons to Australia. Ms Tangaroa was shocked when advised that Mr Vaetoru had returned to the usage of ice in June 2012. She said that this would change her assessment of future arrangements with Mr Vaetoru. With obvious reluctance, she said that she may still be able to provide some assistance to him.

    Other evidence

21. Mr Vaetoru has a criminal history in both Australia and New Zealand. A National Police Certificate,[15] dated 6 August 2012 from the Australian Federal Police, set out Mr Vaetoru’s history of involvement with Queensland Magistrates’ Courts as follows:

    [15] See folio 30 of exhibit 1.

Court	Offence	Date[16]	Penalty
Beenleigh 9 December 2009 22.	Receiving stolen property or property fraudulently obtained (5 charges) Possessing tainted property (3 charges) Wilful damage	-	12 months imprisonment on each charge (cumulative)
	Assault occasioning bodily harm whilst armed/in company	24 October 2008	4 months imprisonment (cumulative)
	Failure to appear in accordance with undertaking (2 charges)	-	1 month imprisonment on each charge (cumulative) Parole: 9 December 2009
	Possessing dangerous drugs Possessing utensils or pipes etc for use (2 charges)	-	$750 fine
	Unlawful possession of weapons	-	$400 fine
	Contravene direction or requirement	-	No penalty imposed
Southport 5 November 2010	Possessing utensils or pipes etc that had been used Failure to appear in accordance with undertaking	-	$500 fine on each charge
Brisbane 1 March 2011	Failure to appear in accordance with undertaking	-	1 month imprisonment (cumulative) Parole: 8 March 2011
Beenleigh 1 July 2011	Possessing dangerous drugs Unauthorised dealing with shop goods	-	$1000 fine on each charge $30 restitution Licence disqualified for 2 years
	Failure to appear in accordance with undertaking	-	1 month imprisonment (suspended for 12 months concurrent)
Beenleigh 1 June 2012	Burglary and commit indictable offence Unlawful use of a motor vehicle (5 charges) Receiving tainted property (2 charges)	February 2012	18 months imprisonment (concurrent) Parole: 1 June 2012
	Trespass – entering or remaining in dwelling or yard Assault or obstruct police officer	September 2011	$400 fine
	Breach of bail granted condition Contravene order – identifying particulars	December 2011	No penalty imposed

[16] Dates when offences were committed, where provided, appear in the Magistrates Courts’ sentencing remarks.

1. A statement[17] from the New Zealand Police Service set out Mr Vaetoru’s history of involvement with the New Zealand District Court as follows:

   [17] See folio 64 of exhibit 1.

Court Date	Offence	Offence Date	Penalty
4 April 2000	Possess for supply cannabis plant	1 April 2000	Community service 100 hrs
26 May 1998	Possess cannabis	26 May 1998	Community Corrections supervision 6 months
	Unlawful get into/upon M/vehicle M/cycle		Community Corrections supervision 6 months
30 March 1998	Wilful damage	27 March 1998	Community service 100 hrs Reparation $200
	Wilful damage		Community service 100 hrs
15 July 1995	Wilful damage	15 December 1995	Reparation $569.33
19 September 2003	Owner or hirer failed to give information	20 October 2002	$400 fine $135 court costs
2 May 2000	Drove while disqualified	28 January 2000	$300 fine. Disqualified from driving for 6 months
29 October 1999	Drove with excess alcohol content	30 July 1999	$400 fine. Disqualified from driving for 6 months
12 May 1998	Owner of hirer gave false details	10 October 1997	$150 fine

1. In evidence were the sentencing remarks of the magistrate at Beenleigh on 9 December 2009.[18] He imposed prison terms of 12 months for the property offences and four months for the assault on Stacey in relation to which he said that it was “serious” and seemed to be done in a “deliberate and premeditative way”. He also imposed a period of one month imprisonment for the bail offences. These terms were expressed to be cumulative to a total of 17 months and took into account seven months of imprisonment already served. The magistrate ordered that Mr Vaetoru be released on parole from the day of sentencing and he advised Mr Vaetoru that, if he breached parole in any way, he would “simply go straight to gaol”.

   [18] See folios 33-36 of exhibit 1.

2. On 1 June 2012, the magistrate imposed a term of 18 months imprisonment which took into account a period of three months already served. He ordered that Mr Vaetoru was on parole from the date of sentence and again the magistrate warned him that the consequence of breaching parole would be a return to prison.

3. The Formal Counselling Letter, dated 17 February 2010, from the Department of Immigration and Citizenship (“DIAC”) was in evidence. It referred to Mr Vaetoru’s visa status and his criminal history. It advised Mr Vaetoru that further criminal convictions could result in consideration of the cancellation of his visa. An Acknowledgement Form attached to the letter was completed by Mr Vaetoru on 26 February 2010 and returned to DIAC. It declared Mr Vaetoru’s understanding of the consequences to his visa of committing further criminal offences.

   SUBMISSIONS

4. Mr Vaetoru submitted that his visa should not be cancelled because he had learned from his past behaviour for which he felt ashamed. He would not be involved in illegal activity such as drug use in the future. He wished to establish a family relationship with his son Leon and Leon’s mother and would, initially, be supported by his sister, Mahana, with whom he would stay. Together, they would arrange for his mother and his two older sons to migrate to Australia to consolidate the family unit. He was determined to obtain employment and make a meaningful contribution to the Australian community.

5. For the respondent, Mr Tigiilagi Eteuati submitted that Mr Vaetoru did not satisfy the character test in the Act and that the decision to exercise the discretion to cancel his visa was the correct and preferable decision which should be affirmed. He submitted that paramount in Mr Vaetoru’s case was the primary consideration to protect the Australian community. He referred to Mr Vaetoru’s long history of frequent criminal conduct, involving serious offences both in Australia and New Zealand. He submitted that it was likely that Mr Vaetoru’s criminal behaviour would continue and constitute a continuing threat to the Australian community. He submitted that no weight should be given to Mr Vaetoru’s assertions that he wished to re-establish himself in a family unit in Australia. This was because concern for his children and family had not limited his criminal activity in the past, despite warnings of possible deportation from immigration authorities. He noted that Mr Vaetoru’s offences included non-compliance with various forms of court orders including his breach of parole conditions which involved a return to the use of prohibited drugs and consequential return to prison. Mr Eteuati submitted that the best interests of Leon would not necessarily be served by allowing Mr Vaetoru to remain in Australia and noted that, if he returned to New Zealand, he would be in contact with his mother and his other children.

   CONSIDERATON

   Primary consideration: Protection of the Australian community

6. In relation to the first of the primary considerations, the Direction provides at cl 9.1:

   9.1 Protection of the Australian community

   1When considering protection of the Australian community, decision-makers should have regard to the principle 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. 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 ham1 to individuals or the Australian community.

   2Decision-makers should also give consideration to:

   (a)The nature and seriousness of the person’s conduct to date; and

   (b)The risk to the Australian community should the person commit further offences or engage in other serious conduct.

   9.1.1 The nature and seriousness of the conduct

   1 In considering the nature and seriousness of the person’s criminal offending or other conduct to date, decision-makers must have regard to factors including:

   (a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;

   (b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

   (c)Where the person is in Australia, that a crime committed while the person was in immigration detention; during an escape from immigration detention; or after the person escaped from immigration detention, but before the person was taken into immigration detention again is serious, as is an offence against section 197A of the Act;

   (d)The principle that any conduct that forms the basis for a finding that a person does not pass the character test under s501(6)(b) or (d), or is not of good character under s501(6)( c), is considered to be serious;

   (e)The sentence imposed by the courts for a crime or crimes;

   (f)The frequency of the person’s offending and whether there is any trend of increasing seriousness;

   (g)The cumulative effect of repeated offending;

   (h)Whether the person has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

   (i)Whether the person has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the person’s migration status (noting that the absence of a warning should not be considered to be in the person's favour);

   (j)Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

   9.1.2 The risk to the Australian community should the person commit further offences or engage in other serious conduct

   1In considering whether the person represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, 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. 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. In making this assessment, decision-makers must have regard to, cumulatively:

   (a)The nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and

   (b)The likelihood of the person engaging in further criminal or other serious conduct, taking into account:

   (i)      information and evidence on the risk of the person reoffending; and

   (ii)     evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

7. The factors applicable to Mr Vaetoru in cl 9.1.1 of the Direction are (a),(b),(c),(d),(e),(f) and (i) as well as those in cls 9.1.2(1)(a) and (b) thereof.

8. Mr Vaetoru has a long history of committing offences. His convictions in New Zealand were for conduct which spanned two and a half years and involved property, drug and driving offences as well as offences of dishonesty. In Australia, he admitted to drug usage from 2006 and was convicted in 2009 for criminal conduct which commenced in February 2008, within four years of his arrival. He has been involved with the criminal justice system in Australia for more than half of the time that he been in the Australian community. His criminal history in Australia reflects a continuation of the same types of offences for which he was convicted in New Zealand. Additionally, it reveals an escalation of seriousness with the inclusion of a weapons offence and an offence of a violent nature, namely an assault of a woman which the magistrate described as serious and premeditated and for which a term of four months imprisonment was imposed. His more recent offences relate to interference with the property of others, including burglary, trespass and unlawful use of vehicles. I do not accept Mr Vaetoru’s evidence about the level of his involvement in the offences dealt with on 1 June 2012. The record of proceedings reveals unqualified guilty pleas and, with two of the offences relating to unlawful vehicle use, Mr Vaetoru was described as having driven the stolen vehicle. With the other offences relating to unlawful vehicle use, he was described as a passenger but with knowledge that he vehicle was stolen. Mr Vaetoru described a sense of shame for his criminal behaviour but his unwillingness to accept responsibility for his actions demonstrates an absence of remorse for his conduct.

9. In Australia, Mr Vaetoru has demonstrated a willingness to ignore the formal warning given to him by DIAC in February 2010 and also the orders imposed upon him by the courts. These include failures to appear in accordance with undertakings on five occasions, breaches of bail and contravention of directions. He also breached his parole conditions in June 2012 by ignoring its residential requirement and reporting obligations. Significantly, the parole breaches were associated with Mr Vaetoru’s return to the usage of ice within days of being released on parole by the Court which warned him of the consequences of breaching his parole conditions. He expressed no regret for using drugs at that time but, rather, was concerned that he had been requested to undertake a urine test, in what he had taken to be a non-test period. Again, this reflects a failure by Mr Vaetoru to accept responsibility for his conduct.

10. Mr Vaetoru referred to rehabilitation programs completed in May 2012 which included material to assist him in resisting a relapse into drug usage. He described these programs as “pretty good”, but, within a month and at the first opportunity out of custody, he relapsed into the usage of ice. Despite being in prison since mid-June 2012, he has not undertaken any further rehabilitation programs though he indicated that he was aware of these being offered.

11. I am satisfied that Mr Vaetoru has a substantial criminal record as reflected in his history of offending and defying court orders. He does not pass the character test. His record is such that it is highly probable that, once released from the constraints imposed by his custody, he will continue in the same manner as before. It is significant that no independent statements have been provided by Mr Vaetoru to support his contention that he would not re-offend on release from custody. Mr Vaetoru’s evidence was that his commission of offences was partly related to the need to meet the costs associated with his drug usage. Continued usage of drugs by him immediately on release from custody points strongly to the likelihood of continuing resort to criminal conduct for that same reason and with its consequential impact on others. In accordance with the Principles in cl 6.3[19] and cl 9.1 of the Direction, Mr Vaetoru’s retention of his visa amounts to a significant and unacceptable risk to the Australian community.[20] This weighs heavily in favour of the cancellation of his visa.

    Primary consideration: Strength, duration and nature of the person’s ties to Australia

    [19] In particular, note the terms of cl 6.3(1), (2), (4) and (6) of the Direction.

    [20] See ss 501(6)(d)(i) and (v) of the Act and s 2 cl 5 of the Direction.

12. In relation to the second of the primary considerations, the Direction provides at cl 9.2:

    9.2 Strength, duration and nature of the person’s ties to Australia

    (I) Reflecting the principles at 6.3, 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.

13. Mr Vaetoru arrived in Australia as an adult and his evidence was that, until he became involved with the usage of ice from 2006, he lived in and was part of the Australian community. He may well have made a positive contribution to the Australia community in that time when he was employed and living with his partner and their respective children. However, he has not been in employment since 2008 and has been involved in the commission of criminal offences and in criminal justice processes for more than half of the time that he has been in Australia. Any contribution made by Mr Vaetoru to the Australian community has been minimal. No evidence to the contrary was led by Mr Vaetoru.

14. Mr Vaetoru referred to many of his family members who have migrated to Australia from New Zealand. They include his uncles, aunts, cousins and some 20 siblings. He has little knowledge of their whereabouts in Australia and he has maintained contact only with his sister Ms Tangaroa. The relationship with his sister has been complicated from 2006 to mid-2010 by Mr Vaetoru’s use of drugs and Ms Tangaroa’s desire to minimise her own children’s exposure to a drug regime. There was no association between Mr Vaetoru and Ms Tangaroa until May 2012 and then no further contact until the end of 2012. Her understanding of Mr Vaetoru’s situation from when she saw him in May 2012 was that he was free of drug usage and, on that basis, she had been willing to have Mr Vaetoru return to live with her on release from custody and for them to work together as a family along with their mother and Mr Vaetoru’s older children. Her resolve in that regard was shaken at the hearing on learning of Mr Vaetoru’s continued drug usage in June 2012 and she was uncertain about the extent that she would be able to assist him on release from custody.

15. No evidence was provided by Mr Vaetoru of persons listed in cl 9.2(1)(b) apart from his de-facto partner, Jasmin, whom he described as an Australian. On his evidence, she has been in prison and was now living in a hostel. Surprisingly, Mr Vaetoru was not aware of the offence for which his de-facto partner had been imprisoned. He referred to a letter he received from her in the week before the hearing and said that she was aware of his prospective removal from Australia. No material was provided from Jasmin who may have been in a position to give evidence of the plan outlined by Mr Vaetoru to establish a family unit with her, her four older children and Leon. Nor was there any evidence from any other Australian citizen, from any person with an employment relationship with Mr Vaetoru, from any permanent resident, or from any person who has an indefinite right to remain in Australia. 

16. In accordance with the Principles in cl 6.3[21] and cl 9.2 of the Direction, I am satisfied that the absence of an indication of support for Mr Vaetoru’s plan to establish a family with Jasmin and the concern by Ms Tangaroa at Mr Vaetoru’s relapse into drug use in 2012, the strength, duration and nature of Mr Vaetoru’s ties to Australia weigh in favour of cancelling his visa.

    Primary consideration: Best interests of minor children in Australia

    [21] In particular, cls 6.3(4) and (6).

17. In relation to the third of the primary considerations, the Direction provides at cl 9.3:

    9.3 Best interests of minor children in Australia affected by the decision

    1Decision-makers must make a determination about whether cancellation is, or is not, in the best interests of the child.

    2This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to cancel the visa is expected to be made.

    3If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

    4In considering the best interests of the child, the following factors must be considered where relevant:

    (a)The nature and duration of the relationship between the child and the person. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

    (b)The extent to which the person is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

    (c)The impact of the person’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

    (d)The likely effect that any separation from the person would have on the child, taking into account the child's ability to maintain contact in other ways;

    (e)Whether there are other persons who already fulfil a parental role in relation to the child;

    (f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

    (g)Evidence that the person has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and

    (h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the person’s conduct.

18. Mr Vaetoru has minor children in New Zealand but the only child to which cl 9.3 of the Direction applies is Leon. However, there is no real relationship between him and Mr Vaetoru. Leon is in the care of the child safety authority with court proceedings adjourned for a further order to be made. There is no material before me to indicate what prospects there are for Leon to be released into the custody of his mother, or of Mr Vaetoru, or of both of them. Mr Vaetoru has seen him on two occasions only when he was less than three months old and only for the brief periods of two hours and of five minutes. Mr Vaetoru has been in custody since then and the long period of time that has elapsed is of special significance because of Leon’s young age. Nor is there evidence to assist in assessing whether Mr Vaetoru will be able to play a positive parental role in relation to Leon. He described Leon as his focus. However, his evidence was that his concern was to ensure that Leon knows who his father is in the same way as do his other sons who live remotely from Mr Vaetoru in New Zealand for some five years.

19. Despite Mr Vaetoru’s declared focus on Leon, his birth did not prevent Mr Vaetoru from resuming his usage of ice in June 2012 when Leon was two months old or from breaching his parole obligations such that he would be returned to prison. The pending birth of Leon in April 2012 did not prevent Mr Vaetoru from committing offences of burglary and unlawful motor vehicle use in February 2012. This was less than two months before Leon was born and while, on Mr Vaetoru’s evidence, he was living in a de facto relationship with Jasmin. As indicated above, there is a significant risk that Mr Vaetoru will re-engage in drug usage on release from custody and, in the event that he is with Leon in Australia, that would only have a negative impact on Leon. It may well be that custody of Leon will remain with the child safety authority but that would not prevent Mr Vaetoru, in the event that his visa is cancelled, from having contact with Leon by letter, telephone or electronic means in the future thereby enabling Leon to learn who his father is by those means. This is the mode of contact that Mr Vaetoru has adopted with his two sons in New Zealand for more than five years.  

1. In the ordinary course of events, the best interests of Leon would be served by his father remaining in Australia. However, in accordance with the Principles in cl 6.3[22] and cl 9.3 of the Direction, and because of the significant risk of harm to Leon and the uncertainty surrounding future arrangements for Leon, consideration of the best interests of Leon weighs in favour of cancellation of Mr Vaetoru’s visa.[23]

   [22] In particular cl 6.3(6) of the Direction.

   [23] See Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 390.

2. In relation to Jasmin’s older children, Mr Vaetoru was not aware of their ages so it is not clear whether or not any of them is a minor. In any event, Mr Vaetoru has no relationship with them. He has seen them in the past but has never spoken to any of them. Their views about the arrangement whereby they would live as a family with their mother, Mr Vaetoru and Leon have not been ascertained. I am satisfied that the circumstances of these children, to the extent that any of them is a minor, weigh neutrally in relation to cancellation of Mr Vaetoru’s visa.

   Other considerations

3. A non-exhaustive list of other considerations is provided in cl 10 of the Direction.[24] Mr Vaetoru has siblings, cousins, uncles and aunts as immediate family in Australia. However, apart from his sister Ms Tangaroa, Mr Vaetoru has not maintained contact with the other family members. Ms Tangaroa understood that, if Mr Vaetoru is deported, he would return to Auckland and be reunited with his mother and his two older boys. This would provide potential for Mr Vaetoru to play an active carer role in relation to them. There is no evidence of any effect of either cancelling or not cancelling Mr Vaetoru’s visa in relation to Jasmin and there would be no apparent barrier to his maintaining contact with her or, in time, with Leon, by various means.

   [24] See para 10 (above).

4. Mr Vaetoru is 34 years of age and described himself as having no health concerns and no prospects of hardship or problems if he were to be deported to New Zealand. There is no evidence of any impediments by way of language or cultural barriers to his being in New Zealand. His New Zealand trade qualification as a welder and previous employment in that capacity before migrating to Australia would overcome any financial impediment to his realising the living standards enjoyed by many New Zealanders.

5. In accordance with the Principles in cl 6.3 and cl 10 of the Direction, the other considerations weigh in favour of the cancellation of Mr Vaetoru’s visa.

   CONCLUSION

6. Having considered the primary considerations and the other relevant considerations in this case, the task of the Tribunal is to determine, on the basis of the appropriate weight to be given to each of those considerations, whether or not those considerations, on balance, favour cancellation or non-cancellation of the visa.[25]

   [25] See cl 6.1 of the Direction and Re Tucker and Minister for Immigration and Citizenship [2010] AATA 559 at [65].

7. Of the three relevant primary considerations, I am satisfied that the protection of the Australian community is the most significant in Mr Vaetoru’s case. The nature and frequency of Mr Vaetoru’s criminal conduct, and the likelihood of his re-offending, is in conflict with an objective of the Act, that is, to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by a non-citizen.[26] This first primary consideration weighs heavily in favour of cancellation of the visa. As noted above, I am satisfied that the second and third primary considerations and the other considerations also weigh in favour of cancellation of Mr Vaetoru’s visa. On balance I am satisfied that the cancellation of the visa in this case would accord with the standards, values and expectations of the Australian community. Accordingly, the preferable decision is that Mr Vaetoru’s visa be cancelled pursuant to s 501(2) of the Act.

   [26] See cl 6.2 of the Direction.

   DECISION

8. The Tribunal affirms the decision under review.

I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.

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

Associate

Dated  23 January 2013

Date of hearing	14 January 2013
Applicant	In person
Solicitors for the Respondent	Mr Tigiilagi Eteuati (Clayton Utz)