Re Visa Cancellation Applicant and Minister for Immigration and Citizenship
[2011] AATA 815
•17 November 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 815
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/3520
GENERAL ADMINISTRATIVE DIVISION
)
Re VISA CANCELLATION APPLICANT Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Ms J L Redfern, Senior Member Date17 November 2011
PlaceSydney
Decision The decision under review is set aside. ......................[sgd]......................
Ms J L Redfern
Senior Member
CATCHWORDS – Migration – visa cancellation – character test - substantial criminal record - whether Tribunal should exercise discretion to cancel applicant's visa pursuant to s 501(2) of the Migration Act 1958 -– Minister’s direction issued under s 499(1) of the Migration Act 1958 – Direction No 41 applied – protection of the Australian community – seriousness and nature of the relevant conduct – the risk conduct may be repeated– minor when commenced living in Australia– best interests of the child – decision under review set aside
LEGISLATION
Migration Act (Cth) 1958 ss 499(1), 499(1A), 499(2), 501(2), 501(6)(a), 501(7), 501(7)(c), 501(7)(d)
CASES
Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 390
Visa Cancellation Applicant and the Minister for Immigration and Citizenship [2011] AATA 690
OTHER
Direction [No. 41] - Visa Refusal and Cancellation under section 501
REASONS FOR DECISION
17 November 2011 Ms J L Redfern, Senior Member BACKGROUND
1. The Applicant is a citizen of Fiji who arrived in Australia in 1988 when he was 9 years old. He was granted a Class BF, Transitional (Permanent) Visa on 19 November 1999. The Applicant has lived in Australia since 1988 and has five children, all born in Australia and under 18 years old, as a result of two relationships with women living in Australia.
2. The Applicant has a history of criminal convictions in Australia starting from when he was 15 years old. On 30 August 2007, the Applicant was convicted in the District Court of New South Wales for three offences committed in April 2005, including armed robbery. He was sentenced to nine and a half years imprisonment, with a non-parole period of six and a half years. He was released on 11 October 2011 but has been in immigration detention in Villawood Detention Centre since this time.
3. Where a person does not satisfy the “character test” as set out in the Migration Act 1958 (the Act), the Minister has a discretion to cancel their visa. It is common ground that the Applicant does not satisfy the character test because of his criminal history. On 12 August 2011, a delegate of the Minister cancelled the Applicant’s visa. The Applicant has applied for a review of this decision.
ISSUES FOR DETERMINATION
4. The Minister contends the Tribunal should affirm the decision of the delegate as the primary consideration of protection of the Australian community weighs strongly in favour of cancelling the Applicant’s visa and outweighs all other considerations.
5. The Applicant agrees his criminal history is serious but says that the risk of him reoffending is low. On the other hand, he has significant links with Australia, has spent much of his youth and all of his adult years in Australia and has five children living in Australia, who will be deprived of a close ongoing relationship with their father.
6. The issue for determination is how the discretion under the Act should be exercised in the circumstances of this case to reach the preferable decision.
LEGISLATIVE AND POLICY FRAMEWORK
7. Section 501(2) of the Act provides that the Minister may 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 the person passes the character test”.
8. Section 501(6)(a) provides that a person does not pass the character test if the person has a substantial criminal record. “Substantial criminal record” is defined in s 501(7) as, among other things, having been: “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c)) or “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” (s 501(7)(d)).
9. Section 499(1) of the Act provides that “the Minister may give written directions to a person or body having functions or powers under this Act” about the performance of those functions and the exercise of those powers but the directions cannot be inconsistent with the Act or the regulations (s 499(1A)). The Tribunal must comply with the written direction (s 499(2)).
10. The Minister has delegated the exercise of the discretion under s 501(2) and has issued a written direction under s 499(1) of the Act to decision-makers about the matters to be taken into consideration when reaching a decision to refuse or cancel a visa. The direction commenced on 15 June 2009 and is known as Direction [No. 41] - Visa Refusal and cancellation under section 501 of the Act (Direction No 41).
11. Direction No 41 contains a number of “primary considerations” and “other considerations” to which the decision-maker, and this Tribunal, must have regard when considering whether to exercise the discretion to refuse or cancel a visa.
12. The “primary considerations” in Direction No 41 are set out in paragraph 10(1):
10. The primary considerations
In deciding whether to refuse to grant a person a visa or cancel a person’s visa, the following (the primary considerations) are to be considered:(a)the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
(b)whether the person was a minor when they began living in Australia;
(c)the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and
(d)relevant international obligations, including but not limited to:
(i)the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
(ii)the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
(Original emphasis).
13. 13. Direction No 41 provides guidance on the range of factors which must be taken into account when assessing the “primary considerations”. Paragraph 11 of Direction 41 identifies a number of “other considerations” that must be taken into account if relevant.
HOW SHOULD THE DISCRETION BE EXERCISED?
14. The “primary considerations” that appear at [10] of Direction No 41 must be taken into account when exercising discretion under s 501(2) of the Act. There are four “primary considerations” that are relevant to the Applicant and they are:
(1) …
(a)The protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;…
(b)Whether the person was a minor when they began living in Australia;
(c)The length of time the person has been ordinarily resident in Australia prior to engaging in the criminal activity or other relevant conduct;
(d)Relevant international obligations, including but not limited to:
(i)the best interests of the child, as described in the Convention on the Rights of the Child (CROC);...
15. There are also a number of “other considerations” which are relevant to the Applicant that should be taken into account. These are as set out in paragraph 11 of Direction No 41. They include: family ties; the nature and extent of any relationships; any links to the country to which the person would be removed and hardship likely to be experienced by the person. Where relevant, these considerations must be taken into account “… but, generally they should be given less weight than the primary considerations” (sub-paragraph 11(2)).
BACKGROUND FACTS
16. The Applicant was born in Fiji in 1978 and moved to Australia with his parents in 1988 when he was nine years old. He has four brothers living in Australia, one older brother and three younger brothers. The Applicant attended primary and secondary school in Sydney but left at the age of 15 when he went into juvenile detention. He completed Year 11 while in detention and when he left, he worked in various jobs as a bricklayer, furniture maker, security guard, and factory hand.
17. The Applicant left home at the age of 17, married when he was 18 years old and had his first child, who is disabled and lives with the child’s maternal grandmother, at the age of 17 years old. Three other children were born while the Applicant was in this relationship and those children are now aged 13, 12 and 10 years old. The Applicant separated from his wife in 2004 and entered into relationship with his wife's younger sister, who he had known for a number of years, in about January 2005. They have a child born in 2005, who was nearly 6 years old at the time of the hearing.
18. The Applicant has a lengthy criminal history, commencing in December 1994 when he was convicted with stealing and robbery in company offences and was sentenced to 12 months juvenile detention. He was convicted and fined in January 2006 for having an offensive implement and on 18 July 2000 he was convicted and fined for driving an unregistered vehicle while unlicensed. Later that year, the Applicant was fined and convicted for destroying or damaging property in a hotel, which apparently arose out of a dispute with another hotel patron who, the Applicant says, made a racist comment towards him. In December 2001, when the Applicant was 23 years old, he was charged and later convicted with “robbery in company”, together with his younger brother and cousin, and was sentenced to imprisonment for three years, with a non-parole period of 18 months. Within weeks of the robbery, the Applicant was involved in another incident with his ex-wife’s aunt and cousin where he fired a loaded gun into the air in a public place, for which he was sentenced to 12 months prison in September 2002. The Applicant served two and a half years in prison following these two incidents and was released in June 2004.
19. While still on parole and within 10 months of leaving prison, the Applicant committed three serious offences, being armed robbery, in the period 7 to 12 April 2005. He was arrested on 12 April 2005 after a police chase, charged on that day and convicted and sentenced on 30 August 2007 after pleading guilty.
20. On 28 August 2003 the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) sent a letter to the Applicant putting him on notice of the intention to cancel his visa. The Applicant made submissions, enclosing lengthy supporting material, in September 2003 and no further action was taken at this time. It is common ground that the Applicant was not formally warned or notified of the outcome by DIMIA at the end of this process.
21. On 24 November 2008 the Department of Immigration and Citizenship (the Department) sent a further letter to the Applicant putting him on notice of the intention to cancel his visa. The Applicant was referred to Direction 21, which was the Ministerial Direction operating at that time under s 499 of the Act. In December 2008 and early January 2009, the Applicant responded by making submissions and again provided lengthy supporting material. There was an unexplained delay in the process and by letter dated 9 March 2011, the Applicant was given an opportunity to respond to Direction 41 (which had come into effect after the original notice was sent), although he was advised that the information already provided would be taken into account. A letter of support was provided to the Department in April 2011 by the Applicant’s partner and in July 2011 the Applicant provided further information about his risk classification and his pre-release approval to work outside the correctional centre from May 2010. On 12 August 2011 a delegate of the Minister cancelled the Applicant’s visa and he was notified of the cancellation by letter dated 15 August 2011, receipt of which was acknowledged on 27 August 2011.
THE EVIDENCE
22. All of the Applicant's immediate family live in Australia, as do a number of his extended family (two aunts, an uncle and cousins) and his five children. His children were born in Australia and are Australian citizens. The Applicant gave evidence that he had lived in Australia 23 years, was educated in Australia and spent most of his formative years and all his adult life in Australia. He has no close relatives in Fiji and has little connection with or understanding of the Fijian culture.
23. The Applicant says he comes from a stable family and does not take drugs or drink to excess. However, his family has been described as “dysfunctional” by Mr John Taylor, Clinical Forensic Psychologist, in a pre-sentencing report dated 14 March 2007, who noted that each of his four brothers have a significant criminal history dating back to their youth. Two of the Applicant's younger brothers are currently in prison and his other two brothers are living in the community, having served lengthy prison sentences. His older brothers claim to be rehabilitated and gave evidence in support of the Applicant.
24. The Applicant was involved in serious criminal activity when he was only 15 years old and was convicted of six counts of robbery in company, two counts of stealing and break and enter and one count of resisting arrest. He could not explain why he became involved in such criminal conduct when he was so young but a possible explanation can be found in the report of Mr John Taylor. According to Mr Taylor, the Applicant and his brothers had little supervision when they were young because their parents were both working very hard. The Applicant was required to supervise his younger brothers when his older brother went to prison but he began associating with peers, who were antisocial, and he developed a “conduct disorder” in his teenage years. Mr Taylor also noted problems with anger management and impulse control.
25. The Applicant was released from juvenile detention after 12 months and there were further convictions, without custodial sentence, in 1996 and 2000. On 30 November 2001, the Applicant committed a robbery involving six others, including his younger brother. When sentencing the Applicant on 3 June 2002, Judge Tupman accepted the Applicant did not know about the proposed robbery until the night before and that his role was confined to driving the other offenders away from the crime. The other offenders were armed but the judge also accepted the Applicant did not know of this. The Applicant's involvement in the offence was found to be in the middle or lower middle of the range and he was sentenced to three years imprisonment, with a non-parole period of 18 months.
26. The Tribunal was not provided with any sentencing remarks for the later offence on 12 December 2001 but the Applicant told the Tribunal this offence was committed in the context of his frustration that his ex-wife's aunt, apparently at the urging of her son, would no longer allow his ex-wife and children to stay at her house after the robbery. Police came to their home and he wanted to protect them from this. The Applicant said he went to the aunt’s home with a loaded gun and attempted to speak to his ex-wife's cousin. When he could not find her cousin he left the house but before driving away he fired several shots into the air. A witness statement, from the police file tendered by the Minister, stated that the Applicant pointed the gun at his wife's aunt and threatened her. The Applicant denied this and in the absence of evidence directly from the witness about this matter and any findings from a court about the incident, it is difficult to form a concluded view. In any event, the Applicant admits to taking the gun to the relatives’ house, arguing with them and firing his gun into the air.
27. The Applicant served two and a half years in prison for these offences. While in prison, the Applicant completed a number of vocational courses (primarily relating to building and construction) and obtained his forklift operator's licence. He also completed anger management related courses and the Young Offenders Program, in respect of which he was awarded the “Most Outstanding Performance” certificate.
28. When the Applicant was notified of the intention to cancel his visa in August 2003, he submitted, in response to the question of his rehabilitation:
I have worked very hard in gaol to meet my criminogenic needs - things within myself that caused me to commit crime. I have done many courses, both selective therapeutic and vocational to ensure I am personally developing, taking responsibility for my actions and providing more opportunities to secure employment when released. This acknowledgement of my weaknesses and difficulty of dealing with issues, was of being addressed 21 months before being contacted by Immigration.
I genuinely wanted to be a more centred man and learn ways to deal with situations when faced with difficulties. Too often in the past I have taken things personally and I wanted to improve my interpersonal skills and self-esteem, so that when I returned to society I would be far better equipped to deal with life's pressures.
I am presently performing on the Young Offenders Program and an Above Average and Excellent level when we are graded on a monthly basis in the areas of work ethic, education, compulsory core and responsibility. I have been asked to remain at the gaol after graduating from the program in the role of a sentenced inmate and to continue working in the afforestation program here. My gaol records will show that I am diligent in all areas of the corrective services environment and I remain focused and motivated towards my rehabilitation.
29. The Applicant was released in June 2004 and moved in with his ex-wife and their children, but in separate rooms as by this time they had decided to separate. This did not last long and the Applicant told the Tribunal there were problems in their relationship. He started a relationship with his ex-wife's younger sister in January 2005, who is his current partner, and said they were very happy. The Applicant could not explain why he became involved with two former prison inmates to commit crimes in April 2005 that were more serious than any of his previous misconduct. The Pre Sentence Report dated 23 March 2007 from the Probation and Parole Service similarly provides little explanation. By the time the Applicant was released after his first stint in adult prison, he was 26 years old with a wife and four children, three living with him. According to the Pre Sentence Report, the Applicant was not under financial pressure at the time he commissioned the offences in April 2005 and had no alcohol, drug and gambling problems.
30. The Applicant told the Tribunal that he was still immature at that time and was unsettled by his failed relationship with his former wife. The Applicant was cross examined about the genuineness of his submissions opposing the cancellation of his visa, given that both were very similar in terms but far from being rehabilitated, he had reoffended within 10 months. He told the Tribunal that he believed what he had written in his submission to DIMIA at the end of 2003 but he now realises his previous experience in prison did not have the “deep” or long-lasting effect on his rehabilitation as he originally believed.
31. In order to assess the seriousness of the Applicant’s crimes, it is important to understand the facts behind his most recent convictions.
32. On 7 April 2005, the Applicant robbed the Rosehill Hotel with two other offenders. One of the other offenders struck the manager of the hotel to the floor and the Applicant stood over the manager and held him down. He then took hold of the licensee and made him walk through the hotel to open the hotel safe. One of the other offenders had a shortened shotgun. The offenders stole $3,761 in the robbery but were not apprehended at this time. Both the manager and licensee sustained injuries as a result of the robbery. Less than a week later, the Applicant was involved in a second armed robbery at another hotel. The Applicant was armed with a shortened shotgun and he, with two other offenders, forced a 23 year old bar attendant, who was pregnant at the time, and a 21 year old staff member, to open the hotel cash registers. Aggressive words were used and there was evidence that the hotel staff and patrons were very frightened. Approximately $3,000 was stolen. On the following day, the Applicant and two of the other offenders robbed a car yard. The robbery was planned and the Applicant was armed with a shotgun. The 19-year-old son of the owner of the car yard was confronted by the Applicant with a shot gun. The owner and his other 21-year-old son were also confronted and the offenders stole two cars, worth about $75,000. The purpose of stealing the cars was apparently to rob a Qantas Credit Union later in the day. The Applicant was subsequently apprehended following a police chase and injured himself in the process, breaking both ankles and his wrist.
33. The Applicant was arrested on 12 April 2005 but did not plead guilty until 30 August 2007. The Applicant told the Tribunal he wanted to plead earlier but was advised by his lawyers not to plead until they had been served with the criminal brief by the police. In sentencing the Applicant, Judge Tupman observed:
Having recited all the facts then it is clear that each of these offences in their own way is very serious. Only full-time jail would suffice ... They are all aggravated armed robberies, well above the Henry level, committed whilst each of the offenders was on parole and in circumstances where, as I will come to in a moment, each of them has a significant criminal history.
34. He also observed that any “… sentence must reflect not just one but two additional aggravated armed robbery offences and each of them committed in serious circumstances and therefore must be taken into account in a meaningful way”. Judge Tupman sentenced the Applicant to nine and a half years for the robberies and possession of an unlicensed firearm, with a non-parole period of six and a half years.
35. On the Applicant’s prospects of rehabilitation, Judge Tupman stated:
[The Applicant’s] prospects of rehabilitation appear to me to be reasonably good. That is because he is not, on the evidence, a person addicted to any substance but that is likely to play a part in his behaviour on release. Further, he has children and a partner to motivate him when he is released. However many of those factors were also present last time he was released to parole and there were not enough to prevent him from re-offending. However he will be assisted by a longer than normal period of supervision in the community. It seems to me that [the Applicant] demonstrates insight into his offending behaviour including a desire to undertake long-term courses at Long Bay prison designed to deal with it his offending behaviour. It seems to me that that would be of assistance to his prospects of rehabilitation.
36. The Applicant told the Tribunal he had changed as a result of his last prison sentence. After his arrest he spent several months in a wheelchair and this gave him time to reflect on his past actions. He had again undertaken numerous courses while he was in prison and participated as a mentor in the Young Offender Program. He was reclassified as a “C3” risk in May 2010, as a result of which he was allowed to be released into the community. From May 2010 the Applicant worked in the community five days a week, returning to prison each day. He was also allowed to go home on weekends and saw his partner and their daughter every weekend. There had been no problems over the 18 months he was on release and according to the Applicant he was a “model prisoner”. Records produced for the NSW Department of Corrective Services confirmed his good behaviour while in prison and this issue was not in dispute.
37. The Applicant told the Tribunal there was a low risk of him reoffending. Unlike his previous period in prison, he had been in prison for a long time. He was more mature and his experience in prison had changed his attitude. His learning in prison had “marinated” and he now wanted to live a useful life in the community like his two brothers.
38. Statements of support were provided by several relatives, the Applicant's ex-wife, three of his children from his marriage, his parents, friends and work colleagues, his partner and two brothers. These statements variously attested to the Applicant's role as a supportive father, a good worker, his reformed attitude and opinions about his prospects of reoffending. A statement from the Applicant’s parents set out the difficulties the family experienced when they first came to Australia and confirmed their sons were left unsupervised, having a negative impact on them “during a crucial period of their formative years”.
39. The Applicant's second eldest son, who is 13 years old, attended the hearing and gave evidence. He told the Tribunal that he visits his father sometimes but speaks to him regularly on the telephone. He would be very sad if his father was forced to return to Fiji. The letter of support, written by the Applicant’s ex-wife on behalf of three of their children, states that the Applicant has “… always been an important part of our lives …” and has “… given us as much love, encouragement and support as he could from inside”. The Applicant's son confirmed that he agreed with the contents of this letter.
40. The Applicant's partner said that the Applicant had always been supportive, was never aggressive or violent to her or their daughter, and that she was devoted to him. Her daughter would be devastated if the Applicant had to leave Australia as she was very close to him, had visited him consistently throughout his term of imprisonment and spent time with him during his weekend release. The Applicant's partner also said that she would suffer personal hardship if the Applicant was forced to leave. When the Applicant's partner was asked whether she would accompany the Applicant back to Fiji, she told the Tribunal she had not considered this. This would present hardship for her and her daughter in that all of her family and friends are in Australia. She had lived all her life in Australia, as had her daughter.
41. The Applicant's brothers gave evidence that they had also been involved in criminal activity from an early age but had changed. The Applicant's older brother had been out of prison for five years and his younger brother had been out of prison for three years. Neither had reoffended and both said they were involved with the Fiji Youth Initiative Inc (FYI), which is a not-for-profit association that supports the Fiji/Pacific Island community. The Applicant's older brother has organised a job for the Applicant and both brothers say they will support him and believe he will not reoffend. Mr Sevu Waqatairewa, Chairperson of the FYI, told the Tribunal he had only met the Applicant about a month ago but had worked with his brothers for a number of years. He believed the Applicant would be able to contribute to the FYI by working with young Fijians and Pacific Islanders to be a role model.
PROTECTION OF THE AUSTRALIAN COMMUNITY
42. Direction No 41 identifies two factors relevant to protection of the Australian community: the seriousness and nature of the relevant conduct, and the risk the conduct may be repeated.
43. Paragraph 10.1.1(1) of Direction 41 states that crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community.
44. It is not disputed that the Applicant has committed serious offences and crimes of violence. His most recent offences are particularly serious, involving loaded firearms and threats of violence against employees and patrons. Some of the victims were injured and there is evidence that other victims were very frightened. As Judge Tupman noted, “… it would not be surprising if they suffered some psychological impact as a result”. Judge Tupman further observed, when commenting about the seriousness of these offences, as follows:
The whole community suffers as a result of offences such as these, not just those who are the direct victims. We must all live in an atmosphere of heightened fear and security when we enter banks and the like with less human contact with people such as bank tellers. The risk of real physical harm is high whenever offences such as this are committed, particularly so when offenders are armed with firearms actually capable of being used and loaded, as was the case here. This is amongst the reasons why the maximum penalty for an event such as these is twenty-five years imprisonment.
45. There are no mitigating factors explaining the commission of the offences, although it is likely the Applicant’s lack of supervision when young, his lack of maturity and predisposition to peer pressure and antisocial behaviour have contributed to his poor criminal record.
46. The Applicant and many of his friends and family say he will not reoffend. They believe the Applicant has changed. This is not surprising and is no doubt an honestly held view. While the Tribunal should have regard to this evidence, the evidence from independent and authoritative sources should be given “greater weight” (paragraph 10.1.2(b)). The risk of the Applicant reoffending is an important consideration when assessing the level of risk of harm to the community of the Applicant’s continued stay in Australia, particularly given the seriousness of his crimes.
47. The Applicant was assessed by Judge Tupman to have “reasonably good” prospects of rehabilitation, although he noted that the Applicant previously had good family support and no addictions but had nonetheless reoffended. Mr Taylor, who apparently knew of the 2001 offences, assessed the Applicant as having a low to moderate risk of reoffending. On the other hand, the Pre Release Report from the Probation and Parole Service dated 12 July 2011 assessed him as being a medium risk, notwithstanding the Applicant had completed a number of programs while in prison to address his problems, had a positive attitude and good reports from staff and employers and had accessed his weekend leave and work release over the past year without incident. The Applicant submitted that this assessment was made because of the seriousness of his offences and the Tribunal should have regard to the fact that he been working in the community for over a year, was unsupervised on weekends and had served his time in prison without any institutional misconducts. He has been out of trouble for over six and a half years.
48. The Minister submits that the evidence shows there is a moderate risk of the Applicant reoffending. He has a significant criminal history and even though he made submissions that he had changed in late 2003 after his previous offence, the Applicant did reoffended, while on parole, within 10 months. The Minister submits that the Applicant’s crimes were so serious that any risk he may reoffend is an unacceptable risk of harm.
49. Paragraph 10.1.2 of Direction 41 provides guidance as to the factors to be considered when assessing the risk of any reoffending. The person's “previous general conduct and total criminal history are to be considered highly relevant” (10.1.2(1)) and factors such as the recent history of convictions, evidence of rehabilitation already achieved or evidence of breach of previous orders are relevant to such an assessment (10.1.2(2)).
50. The Applicant has a longstanding history of criminal conduct and there is evidence his misconduct had escalated in seriousness by the time of his last offences. Of concern is the fact that the Applicant served time in prison in his early twenties and as part of that experience he undertook and successfully completed courses to facilitate his rehabilitation. On his own admission, he had a loving and supportive family, including his children, and was in a new relationship with another child on the way. He had a job, did not have financial pressures or any addictions, and, as submitted to DIMIA in late 2003, he had a positive attitude toward his rehabilitation. Inexplicably, he reoffended, apparently influenced by former inmates.
51. Having regard to the matters referred to above, I find that the protection of the Australian community weighs very strongly in favour of cancelling the Applicant’s visa.
WHETHER THE PERSON WAS A MINOR WHEN THEY BEGAN LIVING IN AUSTRALIA
52. Paragraph 10.2 of Direction 41 provides that favourable consideration should be given if a person was a minor when they began living in Australia and spent their formative years in Australia.
53. The Applicant came to Australia when he was 9 years old and has significant links with this country. There is no dispute he spent his formative years in Australia. There is evidence that his parents were struggling in these early years and it was accepted by Mr Taylor in his report and by the Applicant’s parents in their statement that leaving the Applicant and his brothers unsupervised had a negative impact on them. While this does not excuse the Applicant’s misconduct, it is relevant to consider this history in the context of the social problems that may arise in the community in circumstances such as these. The Applicant’s family arrived in Australia with four young boys under 10 years old and apparently little support. It is interesting to note the evidence of Mr Sevu Waqatairewa that his organisation was established 7 years ago in recognition of the need to support Fijian youth in the Australian community. In particular, FYI “has worked with young offenders’ pre and post release by supporting them to integrate and assimilate back into the community”.
54. The Applicant’s young age when he arrived in Australia and the links he has established is a significant factor that weighs against cancelling the Applicant’s visa in the circumstances of this case.
LENGTH OF TIME LIVING IN AUSTRALIA
55. Direction No 41 directs favourable consideration to lengthy residence in Australia but expressly limits such consideration to ordinary residence “prior to engaging in criminal activity or activity that bears negatively on their character”.
56. The evidence is that the Applicant committed criminal offences within six years of arriving in Australia and has spent ten of his twenty three years in Australia in prison. The Minister contends that this should weigh in favour of cancelling the Applicant’s visa.
57. This issue was considered by Rares J in Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 390 at [23]:
… commonsense would suggest that it might be a particularly relevant factor that a person had embarked upon criminal activity very shortly after arriving in this country, in determining whether it was in the national interest that the person be allowed to remain here with a visa granted by the government of the country under the Act.
58. The Applicant was young when he arrived in Australia and did not commence offending until he was 15 years old. He was living in Australia for six years and attended both primary and secondary school. There is evidence he was unsupervised, immature and unduly influenced by peers. He was a minor when he commenced his offending and although his first offences were serious, there is evidence that after his juvenile detention he engaged in infrequent low level offending until his next term of imprisonment, as an adult, when he was 23 years old. By this time, he was married, had four children who were born in Australia and had lived in the community for fourteen years. This is not a case where a mature person deliberately embarked on criminal activity soon after arriving in Australia and this case can be distinguished from the facts in Rosson. The criminal justice system and the community accept that minors who commit criminal offences should be treated less harshly because of their age and lack of experience. However, it is also relevant to note that in the past ten years, the Applicant has only spent ten months living in the Australian community.
59. In these circumstances, I do not accept this should weigh against the Applicant but nonetheless find that this consideration should be afforded less weight than it otherwise would because of the time spent by the Applicant in prison in recent years.
BEST INTERESTS OF CHILDREN
60. Paragraph 10.4.1 of Direction 41 provides that consideration should be given to the best interests of children when making a decision in relation to the cancellation of a visa. If there are two or more relevant children, the best interests of each should be given individual consideration (paragraph 10.4.1(3)). Sub-paragraph (4) provides:
Under Australian law, it is generally presumed that a child’s best interests will be served if the child remains with its parents. Factors, which may indicate that the child's best interests are served by separation from the person include, but are not limited to:
(a)any evidence that the person has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; or
(b)any evidence that the child has suffered or experienced any physical or emotional trauma arising from the person's conduct.
61. Paragraph 10.4.1(5) sets out a number of factors to be taken into account when considering the best interests of the child, including the nature of the relationship between the child and the person, the duration of the relationship, the extent to which the person is likely to play a full parental role up to the child's eighteenth birthday, whether the child is an Australian citizen, the likely effect that any separation from the person will have on the child, the existence of other persons who will already fulfil a parental role in relation to the child and any known wishes expressed by the child.
62. In this case, there is evidence that the Applicant has a good relationship with four of his children, particularly his youngest child, and has been in regular contact with them while he has been in prison. His ex-wife promoted continued contact between her children and their father while he was in prison and there is evidence she will continue this. While it is clear that the Applicant’s children from his marriage will not be living with him and are cared for by the Applicant’s ex-wife, the children have expressed their wish for him to be a part of their lives. His second eldest son gave evidence that the Applicant has had a positive influence on his life and he would be saddened by his father leaving. There is even stronger evidence of attachment by his youngest daughter. The Applicant’s partner visited him in prison with their daughter regularly and he has been living with them on the weekends as part of his weekend leave since about May 2010. The Applicant’s partner has been fulfilling parental responsibilities while the Applicant has been in prison but there is evidence the Applicant has also been doing this during his weekend leave and is likely to continue playing such a role. There is also evidence he will assume some parental role with his other children.
63. It is not disputed by the Minister that the Applicant has and will continue to have a relationship with his children nor that this counts against cancellation. However, it is submitted this is “outweighed by the other primary considerations”- meaning the protection of the Australian community.. It was also submitted that the children could still have contact with the Applicant in Fiji and the Applicant’s partner and her daughter could move to Fiji to be with him. While this may be true, although it is unclear whether his current partner would be prepared to make such a move, it would seem onerous to disregard this consideration on the basis that children who are Australian citizens should be expected to leave their place of birth to continue the parent-child relationship.
64. Having regard to the evidence and the factors referred to in subparagraph (4) and (5) at paragraph 10.4.1 of Direction 41, this consideration weighs strongly against cancellation.
OTHER CONSIDERATIONS
65. The other considerations relevant to the Applicant are: family ties and the extent of disruption to the Applicant’s family; the Applicant’s links to Fiji and hardship likely to be experienced by the Applicant or his family living in Australia.
66. The Applicant has ties with his immediate and extended family living in Australia and there is evidence there would be particular hardship for his partner if the Applicant was forced to leave Australia. She told the Tribunal she has relied on his support and guidance over the past seven years but has been a single parent while he was in prison and would appreciate the financial support he could give to her and their daughter if he stays in Australia.
67. I am satisfied there is a bond between the Applicant and certain members of his family and that this bond will be necessarily disrupted if the Applicant’s visa is cancelled. I am also satisfied that there would be significant hardship for the Applicant’s current partner if his visa is cancelled. The Applicant does not have close links to Fiji, has lived most of his life in Australia and I accept that he would also face hardship if he were to return after so many years away.
68. These factors weigh against cancelling the Applicant’s visa, although they should be afforded less weight than the primary considerations. It is relevant to note that this is the second time the Applicant’s visa has been considered for cancellation and even though he was not formally warned, he was on notice from August 2003 that his visa could be cancelled on the basis of character. This counts against the Applicant.
CONCLUSIONS
69. This is a case where the factors weighing in favour of the protection of the Australian community are compelling. The Applicant’s crimes were serious and, as noted by Direction 41, crimes of violence are “especially abhorrent to the whole community”. There is a moderate risk the Applicant will reoffend, despite his family support and his professed rehabilitation, and this is an important consideration in deciding whether a person with a visa should be allowed to remain in Australia when his crimes were so serious. Against this, it is relevant to take into account that from about May 2010 until October 2011 the Applicant was working in the community five days a week and was allowed weekend leave unsupervised, both without incident. The Minister contends this is not a true test of the Applicant’s resolve or rehabilitation as his release was under strict conditions. I accept this but nonetheless consider these facts to be relevant to the overall assessment of whether there is an unacceptable risk of harm in the circumstances of the case.
70. The fact that the Applicant was a minor when he arrived is significant and weighs in his favour, as does the disruption to his family and the hardship he, but most particularly his partner, will face if he must return to Fiji. However, the most significant issue that weighs against cancellation is the impact of cancellation on the Applicant’s children. As expressly recognised in Direction 41 as a general proposition, it will be in the best interests of the Applicant’s children if he is allowed to stay and continue in his parenting role. This is particularly so in the case of his youngest daughter, with whom he has had a close relationship since birth despite his time in prison.
71. In this case, there are strong factors both in favour and against cancellation of the Applicant’s visa. Direction 41 provides further useful guidance about the balancing of those factors in cases such as this. The Preamble to Direction 41 states (at 5.1) as follows,
(1) The object of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens.
(2)In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to Australian people, the government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by noncitizens.
By way of General Guidance, Direction 41 also states (at 5.2(4)),
In some circumstances it may be appropriate for the Australian community to accept more risk where the person concerned has, in effect, become part of the Australian community owing to their having spent their formative years, or a major portion of their life, in Australia.
72. As stated by the President, Justice Downes in Visa Cancellation Applicant and the Minister for Immigration and Citizenship [2011] AATA 690 at [50], the appropriate course is to assess the factors set out in Direction 41, having particular regard to the primary considerations, and to give these factors weight as assessed by the relevant Tribunal but by reference to community standards, rather than apparently expressing subjective personal views.
73. It is my assessment that, notwithstanding the seriousness of the Applicant’s previous criminal conduct and risk he may reoffend, this is a case where the Australian community would be prepared “to accept more risk” because the Applicant has “in effect, become part of the Australian community”. He arrived in Australia at an early age, married, has formed a long term de facto relationship and has had children, who are all Australian citizens, while living in Australia. Importantly, there is evidence he has had, and will continue to have, a parenting role with his children. These factors and the negative impact on his children if he is forced to leave, outweigh the risk of harm to the Australian community in the circumstances of the case. I therefore find that the preferable decision is to exercise the discretion in the Applicant’s favour and I set aside the decision of the Minister.
I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J L Redfern, Senior Member.
Signed: .................[sgd]........................................
Casey Comans, AssociateDates of Hearing 31 October and 1 November 2011
Date of Decision 17 November 2011Representative for the Applicant The Applicant
Self-represented
Solicitor for the Respondent Elizabeth Warner Knight
Australian Government Solicitor
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