Re Takau and Minister for Immigration and Citizenship
[2007] AATA 1575
•24 July 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1575
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/1862
GENERAL ADMINISTRATIVE DIVISION )
Re Joseph Steve TAKAU
Applicant
AndMinister for Immigration and Citizenship
Respondent
DECISION
TribunalProfessor GD Walker, Deputy President
Date24 July 2007
PlaceSydney
DecisionThe decision under review is affirmed.
....................[sgd]..........................
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION – visaex – applicant does not pass the character test – applicant has substantial criminal record – applicant committed further offences after receiving warning from the minister – risk of recidivism found to be high – community expectations would weigh in favour of cancelling the visa of a serial offender such as the applicant – considerations of community protection and expectations outweighed the other considerations in this case – decision under review affirmed…
RELEVANT ACT/S:
Migration Act 1958: ss 34, 499, 501,
Direction No 21
CITATIONS
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Re Msumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192
Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780,
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Re Agafili and Minister for Immigration and Multicultural Affairs [2001] AATA 91
…
REASONS FOR DECISION
24 July 2007
Professor GD Walker, Deputy President
Summary
1. The applicant has applied for a review of a decision by the respondent to cancel his visa under Section 501(2) of the Migration Act 1958.
2. On 7 May 2007, a delegate of the respondent decided to cancel the applicant’s visa on the ground that he did not satisfy the character test set out in s 501 of the Migration Act 1958 (the Act). The applicant sought review of that decision on 11 May 2007 by application to this tribunal.
Issues
3. (i) Whether the applicant did not pass the character test in s 501(6)(a) of the Act because of his substantial criminal record as defined in s 501(7) of the Act;
(ii) If not, whether the tribunal should exercise its discretion to set aside or affirm the decision made by the delegate of the minister to cancel the applicant’s visa, applying ministerial Direction No 21.
4. At the hearing, the applicant was unrepresented, and the respondent was represented by Mr Anthony Cox, solicitor of DLA Phillips Fox. The documents before the tribunal comprised the documents produced pursuant to s 501G of the Act (“the G documents”), taken into evidence as Exhibit A1, together with the other documents tendered by the parties at the hearing. The Respondent also tendered a bound copy of the G documents (Exhibit R2). The applicant gave oral evidence in person, as did his parents Mr Oweni Takau and Mrs Auhangamea Takau.
Relevant Law and Policy
5. Under s 501(2) of the Act, the Minister may cancel a visa if the holder does not satisfy the Minister that the person passes the character test (s 501(2)(a) and (b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant grounds in the current matter are paragraphs (a) and (c), as follows:
…
For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7); or
…
(c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct;
(ii) the person’s past and present general conduct;
the person is not of good character; …
…
6. “Substantial criminal record “ is defined in s 501(7)
…
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(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;
…
7. Under s 499(1) of the Act, the Minister may give written directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. That includes the tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.
8. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
Basic facts
9. The applicant Joseph Steve Takau was born on 1 July 1977 in Auckland, New Zealand and is a citizen of that country. He first arrived in Australia on 6 July 1982 at the age of five years, as the holder of a New Zealand passport (G pp96-98, Exhibit R2).
10. He has left Australia and returned twice since his first arrival. His first absence was for four years between 24 February 1993 and 7 February 1997, during which period he was aged 15 to 20 years. He did not refer to that absence in his evidence but from his father’s evidence, it appears that he spent those years in Tonga with relatives. His second departure was on 17 July 1998. He returned on 28 July 1998 when he was granted a special category visa class TY subclass 444. He does not satisfy the requirements for an absorbed person visa under s 34(2) of the Act.
11. The applicant has been sentenced to several terms of imprisonment, the longest being imprisonment for two years. His criminal history is as follows:
DATE
CONVICTION
SENTENCE
30.10.06
Break Enter Building (Steal) Value <=$15,000
16 months imprisonment
Possess Safebreaking Implements
6 months imprisonment
19.01.04
Possess Housebreaking Implements
9 months imprisonment, 6 months non-parole
Found With Intent to Commit Indictable Offence Previous Conviction
9 months imprisonment, 6 months non-parole
Enter Building With Intent Commit Indictable Offence
9 months imprisonment, 6 months non-parole
18.12.03
Break and Enter Building (Steal) Value <=$15,000 (4 counts)
6 months imprisonment
Possess Housebreaking Implement
12 months imprisonment
Break and Enter With Intent (Steal) (6 counts)
2 years imprisonment, 12 months non-parole
Enter Enclosed Lands not Presc Premises Without Lawful Excuse
$500 fine
11.03.00
Breach of Community Service Order (on appeal)
Conviction confirmed (from LC 11.2.2000). 200 hours community service
22.01.99
Contravene Apprehended Domestic Violence Order
180 hours community service
24.11.98
Common Assault
$400 fine
29.08.97
Maliciously Destroy or Damage Property <=$2,000
$500 fine
13.05.97
Possess Prohibited Drug
$150 fine
08.05.97
Steal Motor Car
50 hours community service
18.02.93
BE&S
12 months probation
Break and Enter With Intent
12 months probation
Malicious Damage
12 months probation
Carry in Conveyance
12 months probation
27.10.92
Robbery in Company
12 months probation
Steal From Person
12 months probation
GIC
12 months probation
Unlawful Entry
12 months probation
Larceny
12 months probation
12. He was thus convicted of six counts of breaking and entering with intent to steal and sentenced to two years imprisonment, with a 12-month non-parole period, on 18 December 2003. On the same day he was sentenced to 12 months for possessing housebreaking implements. The minister decided not to cancel his visa and he was issued with a warning on 30 November 2002 relating to his criminal history up to that time (G p113). On 2 December 2004, he signed an acknowledgment of that warning and of his understanding that any further convictions for any offences would result in his visa being reconsidered for cancellation (G p114). Later, on 30 October 2006 he was convicted of breaking and entering and possessing safebreaking implements and sentenced to 16 months and six months on those charges respectively.
13. On 22 January 2007, the respondent sent the applicant a notice of intention to consider cancellation of his visa under s 501(2) of the Act (G pp72-76).
14. On 7 May 2007, after considering representations made by and on behalf of the applicant, a delegate of the minister decided to cancel the applicant’s visa on the basis of his substantial criminal record within the meaning of ss 501(6)(a) and 501(7)(c) of the Act. The applicant on 11 May 2007 applied to this tribunal for review of that decision.
The applicant’s evidence
15. In his written (Exhibit A2) and oral evidence, the applicant said that he had been educated from pre-school to high school in Australia and since leaving school had lived, worked and paid taxes “just like any other Australian”.
16. At 19 he met Suzanne, his first girlfriend, the only child of an alcoholic single mother. She introduced him to marijuana and subsequently heroin. They both became addicted and he turned to criminal activity to support their respective drug habits. “Unfortunately, it is difficult (practically impossible) to maintain an addiction to heroin without indulging in crime”, he wrote.
17. In 2003 he was arrested and sentenced to two years’ imprisonment. On his release in 2005, he began employment with his brother, doing demolition work. He rejoined Suzanne and, being still addicted, set out to support two people’s drug habits again and turned to crime. Before long he was in prison once again. “My second time in prison was the turning point in my life. Having had much time to reflect upon my past errors, I sincerely repent what I have previously done, ie I am truly sorry for the crimes and offences I have committed. I truly feel and believe that since spending my second spell in prison I am a rehabilitated individual, ready to re-enter society”. He is no longer involved with Suzanne.
18. Both his parents and his four siblings live in Australia. Both of his youngest brothers are Australian-born citizens and unfortunately one of them, Patrick, was born with no arms. Though he realises he has not been there for Patrick for the past few years, he wants to prove to him that he will be there supporting him all the way if their parents are no longer with them one day. He believes his family members are as dependent on him as he is on them.
19. Before being transferred from prison into Villawood, he had been under the impression he would be released from prison at the end of his sentence and would once again enter the community. With that in mind he had organised full-time employment working on a stall at the Fiji market in Newtown.
20. He has an uncle and his grandmother in New Zealand, but considers his employment prospects there to be poor. Considering the reasons for his removal from Australia, if it occurs, he suspects that his New Zealand family members would not accept him. He believes he would have a struggle to make his way in that country.
21. While in prison he had taken a drug relapse prevention course to learn techniques for helping him to avoid returning to drug use. He is no longer with Suzanne, who introduced him to drugs in the first place and led to his engaging in crime.
22. He had always assumed he was an Australian citizen because “I had arrived in Australia as a toddler, grown up here and lived here all my life. As far as I was concerned, I considered myself to be Aussie. Since I had grown up in Australia since the age of four, I assumed I was an Australian citizen”.
23. In addition to the relapse prevention course, he had commenced a forklift operator’s course while in prison but had not completed it. Consequently, he had no work skill qualifications. When he had worked in demolition he had simply used ordinary power tools. At the same time, he agreed that there was nothing to prevent him from obtaining work of that kind in New Zealand. He could also send money back to his family once he became employed.
24. Mr Takau agreed that he had received the departmental warning about visa cancellation, and had read it. He had understood that he was being warned that if he were convicted of further offences, he would be reconsidered for visa cancellation. He also agreed that he was thus prepared for cancellation.
Other evidence for the applicant
25. The applicant’s father, Mr Oweni Takau, a security guard, in oral evidence adopted his statement of 20 June 2007 (Exhibit A3). In it he described the family history in Tonga and their move to New Zealand. They subsequently moved to Australia because of tensions between Mr Takau and his parents.
26. Initially they lived at Chippendale, and subsequently in Newtown. When Patrick was born without arms, they had the opportunity of putting him into institutional care but his wife was determined to look after Patrick herself. Mr Takau and the applicant helped her in every way they could.
27. In 1990, they obtained a house from the Department of Housing at Kent Street, Millers Point, New South Wales. The applicant was attending St Mary’s Cathedral College at that time and helped his mother cleaning up the church that they attended for Mass.
28. In 1992, the applicant fell in with a bad group of friends from school who led him into trouble. In order to get him away from those influences, they sent him to Tonga in 1993 to stay with Mrs Takau’s parents and relatives. Mr and Mrs Takau did not tell the Tonga relatives why they were sending the applicant over there, “because if they find out that he was in trouble in here they won't like him that’s our cultural way”.
29. After his return from Tonga he began employment as a construction worker and helped the family a great deal. It was at that time that he met the girl (Suzanne) already referred to.
30. In 1998 when the applicant turned 21, one of Mr Takau’s cousins paid for the applicant to visit New Zealand for his birthday. They knew nothing of the change of the law in relation to New Zealand citizens and learned about it only when the applicant told them that his visa had been cancelled.
31. The first time he came out of jail, Mr and Mrs Takau did not know that he had already been warned by the department that his visa would be cancelled if he were again convicted.
32. Mr Takau believes that the applicant is sorry for what he has done. The family is a close one and would be greatly affected if the applicant was separated from his parents and his four young brothers.
33. Mrs Auhangamea (Maria) Takau stated that she believes her son greatly regrets all the crime he has committed. He was a very good person when he was growing up with the family in the community area at Millers Point. He never let her down if she asked him to do any work for her at the home. She believes he would never return to the same path as before and had asked friends from her church and the Millers Point community for supporting letters and submissions in support of his appeal (Exhibit A4).
34. Mrs Takau explained that as a result of injuries she sustained in a car accident in 1987, her son Patrick had been born with no arms.
35. She is an Australian citizen and had spent more of her life here than in New Zealand. She had never realised that the applicant’s visa could be cancelled as a result of his criminal convictions.
36. The applicant tendered references from Father Dominic Ceresoli of the Sydney Catholic Immigration Office, Father Peter McMurrich of St Patrick’s Church, Grosvenor Place, and Father John Usher, Chancellor of the Catholic Archdiocese of Sydney. The references are really in support of the applicant’s mother, and it does not appear that any of the referees have ever met the applicant. They do speak highly of Mrs Takau, however, and Father Usher expresses the view that the applicant’s removal would be distressing for her and that she would suffer because he has been an emotional and physical support to her in caring for Patrick.
37. Also forming part of Exhibit A5 was a petition bearing 43 signatures endorsing the following proposition:
I OR WE SUPPORT MR & MRS OWENI AND AUHANGAMEA TAKAU OF … MILLERS POINT NSW 2000, FOR SUPPORTING THEIR OLDEST SON, JOSEPH STEVE TAKAU, APPLICATION FOR APPEAL TO THE ADMINISTRATIVE APPEAL [SIC] TRIBUNAL NOT TO CANCEL HIS VISA HERE IN AUSTRALIA WITH THE DEPARTMENT OF IMMIGRATION (OR DIMA).
…
38. Again, the petitioners really appear to be supporting Mr and Mrs Takau, and the petition displays no awareness of the applicant's criminal record that formed the basis of the delegate’s decision to cancel the visa.
Applicant’s submissions
39. As the applicant was unrepresented and had no address prepared, he did not present submissions in the usual way. By prompting him with questions, however, I endeavoured to elicit from him his comments on Mr Cox’s submissions, in particular the significance to be attached to the fact that he had been warned about the possibility of visa cancellation in November 2004 but had gone on to re-offend.
40. He had nothing to add to his earlier explanation about why he had committed further offences after the warning, but said he now wanted to show the community and his family that he would not re-offend and would not return to drugs. If released he would work at a stall in the Fiji market at Newtown and would live with his parents. Asked about his parents’ ties with the church, he said that before he was imprisoned he had attended St Bridgid’s Church at Millers Point. He did not, however, express any interest in resuming that association.
41. I explained to him that it was not being suggested that he was expected to attend church, but that it could be material to know what connections he had in the community that might be helpful for him, youth groups for example. He replied that there is a youth group in the Millers Point area but he did not know who operated it (his mother interjected that it was conducted by the Sydney City Council). He did not suggest that he would join it (which may not be significant given that he is now aged 30).
Application of the Law and Findings of Fact
42. As was stated above, the first issue for me to decide is whether, pursuant to s 501(6)(a) the applicant passes the character test having regard to his substantial criminal record. The application of the character test is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:
…
The concept of “good character” in section 501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is “not of good character” within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry…
…
In ReMsumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192, the Tribunal said, at paragraph 37:
…
The character test, therefore, requires an objective consideration of the applicant’s “enduring moral qualities” (Irving 68 FCR 422 at 431). However, this does not require the applicant to meet the highest standards of integrity. The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Goldie 1999 FCA 1277).
…
43. On the other hand, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness (Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780 at 781).
44. Secondly, I am required to have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If I decide that the applicant does not pass the character test, I must consider whether to exercise the discretion in s 501(1) not to cancel the applicant’s visa, notwithstanding that the applicant does not pass the character test. In so doing, I must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.
45. In relation to s 501(6)(a), the person’s substantial criminal record, paragraph 1.4 of Direction No 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their substantial criminal record, should have regard to the definition of substantial criminal record in s501(7),
46. In this case the applicant does not pass the character test because of his “substantial criminal record” within ss 501(6)(a) and 501(7)(c), in that he has twice been sentenced to terms of imprisonment of 12 months or more and there are no mitigating circumstances.
47. I must therefore consider whether to exercise my discretion under s 501(1) to decide, nevertheless, whether or not to cancel or restore, the applicant’s visa. In exercising that discretion, the tribunal has regard to Part 2 of Direction No 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
…
Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
…
48. Paragraph 2.3 sets out the primary considerations:
…
In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
…
Paragraph 2.4 explains:
…
The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community.
…
49. Examples of what the government views as serious offences are set out in paragraph 2.6. This includes, in subparagraph (f), crimes of violence against persons. Paragraph 2.8 requires decision-makers, when exercising this discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.
50. With regard to paragraph 2.5(b), likelihood that the conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.11, general deterrence, “aims to deter other people from committing the same or similar offence”.
Protection of the Australian Community
51. The first issue to be discussed under this heading is the seriousness and nature of the conduct. It is necessary to apply Direction No 21, which was made pursuant to s 499 of the Act. The direction, which is binding on this tribunal, states in paragraph 2.6(n) that crimes involving violence or the threat of violence are to be treated as very serious. In this case, the applicant has been convicted of robbery, assault and contravening an apprehended domestic violence order. He also has a long record extending back to 1992 of breaking and entering, larceny, car theft, malicious damage and possessing a prohibited drug. There is no evidence of mitigating factors. In my view his record must be viewed as very serious.
52. The next issue for the tribunal to consider is the risk of recidivism. Paragraph 2.10(b) states that a non-citizen with several previous convictions in Australia should be considered as having an increased risk of recidivism in light of that past behaviour. The applicant has numerous convictions extending back to 1992 and the only significant gaps have occurred when he was in jail and during the four years he was living in Tonga. While incarcerated, he does not appear to have been a troublesome inmate, however, his only conviction being for failing a urine test in 2004.
53. His current term of imprisonment is for less than three years. In New South Wales offenders sentenced to terms of less than three years are automatically released on parole at the expiration of their non-parole period. In those circumstances, pre-release reports are not prepared by the Probation and Parole Service, and consequently an official assessment of his rehabilitation and risk of recidivism is not available.
54. When sentencing him on 30 October 2006, Magistrate Forbes said that she would not have been assisted by a probation report in his case. Her Honour noted that he had received some non-custodial determinations while in Children’s Court but was not deterred by those determinations. In the adult court, after serving a sentence, he was given the opportunity of complying with a community service order.
…
That was an order of the court and an opportunity that was not accepted and those matters went back before the court on two occasions and you were given further opportunities within the terms of those community service orders but again the opportunities were not accepted.
I cannot draw the inference from these papers, and that is over the period of 14 years, that you would comply with orders of the court if given an opportunity (G p123).
..
55. The applicant says that he was led into drugs and crime by his association with Suzanne, and that as he is no longer with her he will not re-offend. But his father stated in his written evidence (Exhibit A3) that the applicant did not meet Suzanne until after he had returned from Tonga in 1997. But even before he departed for Tonga, he had accumulated an impressive criminal record, including convictions for robbery in company, larceny, and breaking and entering. It was because of his troubles with the law that his parents sent him to stay with Mrs Takau’s parents and relatives in Tonga.
56. He has taken a drug relapse prevention course and is currently free of drugs, but the strength of his resolution has not been tested outside custody, and he did relapse after his first release from prison. He assured the tribunal that his second term of imprisonment had fundamentally changed his outlook, but there is little objective corroboration of rehabilitation.
57. The most significant piece of evidence relating to the risk of recidivism is the fact that the department issued him with an emphatic written warning on 30 November 2004 that “conviction for ANY further offences will result in a fresh assessment being made to again consider cancellation of your visa” (G p113 emphasis in the original). He acknowledged receipt of that warning in writing (G p114) and admitted at the hearing that he had read and understood it. Despite that warning, however, he went on to commit further offences of the same kind as those he had perpetrated previously.
58. I accept Mrs Takau’s evidence that they are a close family and that the applicant could count of their support. Nevertheless, support from his family has not in the past deterred him from engaging in criminal conduct.
59. I conclude that there is a significant risk of recidivism in this case.
60. In relation to the protection of the Australian community, the tribunal is also required to consider the question of general deterrence, the likelihood that visa refusal would prevent or inhibit the commission of similar offences by other persons: Direction No 21 paragraph 2.11. The deterrent effect of a particular decision is impossible to prove in advance. The concept is perhaps better expressed in positive form by saying that if bad behaviour is rewarded, there will be more of it. That is a principle well known to parents, teachers, managers and most other members of the community.
61. Its incorporation in Direction No 21 may be simply a reflection of the need for decision-makers to consider the long-term effects of their decisions, not merely the short-term results. While visa cancellation is not intended as a punishment, para 2.11 of the direction plainly contemplates that the prospect of it will operated to deter similar conduct in much the same way as the threat of punishment does. Deterrent factors carry some weight in this case, especially as the applicant disregarded an express warning about the possibility of cancellation if he were to re-offend.
Expectations of the Australian Community
62. With regard to the second primary consideration, the expectations of the Australian community, paragraph 2.12 of Direction No 21 states in part that:
…
Visa refusal … may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia.
…
63. A long-standing principle of international law provides that individuals do not have a right to immigrate, and that general immigration decisions lie in the discretion of the state concerned (I.A. Shearer, Starke’s International Law, 11th edn. Sydney 1994, 314-315; I Brownlie, Principles of International Law, 5th edn. Oxford 1998, 552). That principle is implicitly confirmed by international human rights treaties. For example, the International Covenant on Civil and Political Rights prohibits only the arbitrary deprivation of a person’s right to enter his or her “own country” (Art. 12.4). It has long been accepted on all sides in Australia that migration must be conducted in a legally regulated manner. There are many reasons for that, including the obvious point, as made by the Swedish economist Johan Norberg, that a welfare state cannot have open borders (“In defence of global liberalism”, Policy, winter 2006, 43, 47).
64. At the same time, there is an expectation in the community that migration law will be administered fairly and humanely (Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at [34]).
65. In my view the community would take the view that a serial offender who has repeatedly been given chances through probation and community service orders, who has served two prison sentences and disregarded a clear visa cancellation warning should be removed from Australia.
The Best Interests of the Child
66. The third primary consideration is the best interests of the child. There is no evidence that the applicant is in a parental or other close relationship with a child. He has contributed to the care of his disabled brother, but Patrick is now aged 19. His interests are thus to be considered as part of the other considerations.
Other considerations
67. With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, “it is appropriate these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations”. These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; and any evidence of rehabilitation and any recent good conduct.
68. The applicant is not married to, or in a de facto relationship, with an Australian citizen. His parents and siblings live here, however, and they would suffer some emotional hardship if he were removed to New Zealand. His mother would miss his contribution to the care of his disabled brother Patrick, but because of his incarceration he has not been in a position to help in that way for some time. There are also three other brothers who could assist. While the family would suffer some distress, they have already done so because of his criminal activities and imprisonment and would do so again if he were to re-offend.
69. The applicant says he had always assumed he was an Australian citizen, having been here since he was five. That cannot be correct, however, as he would have had to produce his New Zealand passport when he travelled to, and returned from, Tonga and New Zealand. His mother is an Australian citizen (presumably his father also) and no explanation was offered as to why he did not obtain citizenship himself when he could easily have done so.
70. In New Zealand he has an uncle and his grandmother. He says that they would not welcome him because of his criminal record, but that assertion was not elaborated upon.
71. He could not offer any reason why he would be unable to obtain in New Zealand work of the kind that he had performed in Australia. There might also be the possibility that he could live in Tonga, where he has family with whom he has lived previously. During that period he appears to have stayed away from drugs and crime. But it is possible that if he were removed from Australia he might not be permitted to return to Tonga.
72. In any event, as Deputy President Chappell noted in Re Agafili and Minister for Immigration and Multicultural Affairs [2001] AATA 91, at para 91,
…it should be remembered that New Zealand is a neighbouring country with very similar social, cultural and related values to that of Australia and with a well-developed welfare system which could assist the Agafili family in appropriate circumstances.
…
73. The applicant has taken some steps on the path to rehabilitation, but they have been in a prison environment. From his past record, one could not be confident that if released into the community he would not relapse again.
74. In my view the considerations of community protection and expectations outweigh the other considerations in this case. The discretion should be exercised accordingly.
75. The decision under review is affirmed.
I certify that the 75 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: ....... ..............[sgd]...............................................
R. Wallace, AssociateDate/s of Hearing: 3 July 2007
Date of Decision: 24 July 2007
Solicitor for the Applicant: Unrepresented
Solicitor for the Respondent: Mr Anthony Cox, DLA Phillips Fox
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