REEDY and MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2011] AATA 363
•30 May 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 363
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. 2011/0966
GENERAL ADMINISTRATIVE DIVISION ) Re
MANU REEDY
Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Ms N Isenberg, Senior Member Date30 May 2011
PlaceSydney
Decision The Tribunal affirms the decision under review.
......................sgd.....................
Ms N Isenberg
Senior Member
CATCHWORDS
IMMIGRATION – 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 – Ministerial Direction No 41 applied – primary considerations – protection of the Australian community – risk that conduct may be repeated – recidivism – evidence of rehabilitation – other considerations – family ties and nature and extent of any relationship with the Australian community – decision under review affirmed.
Migration Act 1958 (Cth) ss 499, 500, 501.
Ministerial Direction [No. 41] – Visa refusal and cancellation.
Re Gallagher and Minister for Immigration and Citizenship [2011] AATA 10
Feyisa Eggu and Minister for Immigration and Citizenship [2010] AATA 1003
Geum Su Kim and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 239
Goldie v Minister for Immigration and Multicultural Affairs (1999) FCA 1277
SAAC and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1209
Msumba and Department of Immigration and Multicultural and Indigenous Affairs [2000] AATA 87
Re Trinh and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1306)
Ngati and Minister for Immigration and Citizenship [2009] AATA 693
Green v Minister for Immigration and Citizenship [2008] 100 ALD 346.
R v Henry & Ors (1999) 46 NSWLR 346.
Weti and Minister for Immigration and Multicultural Affairs [2006] AATA 1054.
Tien Hung Vu v R [2006] NSWCCA 188.
Re Carlos Otineru and Minister for Immigration and Citizenship [2008] AATA 873
the Applicant and Minister for Immigration and Citizenship [2010] AATA 372
Re Rajaratnam and Minister for Immigration and Multicultural Affairs [2006] AATA 942
Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 40 FCR 493.
Kwong Leung Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56
Rosson and Minister for Immigration and Citizenship [2010] AATA 880.
REASONS FOR DECISION
30 May 2011 Ms N Isenberg, Senior Member INTRODUCTION
1. Mr Manu Reedy, who is now aged 23 is a citizen of New Zealand. He arrived in Australia on 4 July 2005 when he was aged 17. He was granted a Class TY Subclass 444 Special Category (Temporary) visa. He has not departed Australia since that time.
2. On 19 April 2010 Mr Reedy was convicted of armed robbery. On 1 March 2011, the Minister for Immigration and Citizenship (the Minister) cancelled Mr Reedy’s visa on the ground that he did not pass the character test in s 501 of the Migration Act 1958 (Cth) (the Act). Mr Reedy seeks review of that decision.
3. In summary, Mr Reedy’s submission is that there is now ‘pretty much’ no risk of him re-offending, and he wants the opportunity to demonstrate that. He also wants the opportunity to bring up a family in Australia.
RELEVANT LEGISLATION & POLICY
4. Under s 501(2) of the Act, the Minister may cancel a person’s visa 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 she or he passes the character test.”
5. A person is taken not to pass the character test if he has a substantial criminal record: s 501(6)(a). A person has a substantial criminal record if he has been sentenced to a term of 12 months imprisonment or more, or has been sentenced to two or more terms of imprisonment totalling two years or more: s 501(7). There was no dispute that Mr Reedy had been sentenced to a term of imprisonment in excess of 12 months.
6. Section 501(2) gives the decision-maker discretion to cancel a visa if the visa holder has failed the character test. The discretion in s 501(2) must be exercised in accordance with Direction [No. 41] - Visa refusal and cancellation (the Direction), which commenced on 15 June 2009. The Direction is made pursuant to s 499 of the Act and is binding on the Tribunal: ss 499(1) and (2a) of the Act. It requires that due consideration be given to the objective of the Act to regulate, in the national interest, the coming into and presence in Australia of non-citizens and, in this regard, to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious misconduct by non-citizens: Paras 5.1(2) and 10.1.
7. The Direction gives a decision-maker guidance in considering the nature of any harm the person may cause to the Australian community and the risk of that harm occurring. A wide range of factors must be taken into account, including whether the person began living in Australia as a minor, the length of time she or he has been ordinarily resident in Australia and any relevant international obligations: Para 5.2.
8. A decision-maker must take into account four primary considerations in every case and must take into account any of the seven other considerations listed if relevant to the applicant’s case.
9. The primary considerations are set out in paragraph 10(1) of the Direction:
“(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;
(d) any relevant international law 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).…”
10. The other considerations are set out in para 11 of the Direction. They must be taken into account where relevant but, generally, should be given less weight than the primary considerations: Para 11(2).
THE PRELIMINARY ISSUES
Is there a valid application?
11. Mr Reedy was notified of the decision to cancel his visa by letter sent by Registered Post dated 1 March 2011. Pursuant to reg 2.55(7)(a) of the Migration Regulations 1994, Mr Reedy is deemed to have received the notification on 10 March 2011. Mr Reedy’s application for review was received by the Tribunal on 16 March 2011 and so was within the nine day limitation period prescribed under subs 500(6B) of the Act.
12. However, when the matter came for directions before Senior Member Toohey on 6 April 2011 it was observed that Mr Reedy had not, at the time of application, paid the application fee associated with his application for review, as required by s 29A of the Administrative Appeals Tribunal Act (the AAT Act). The fee was paid on the day of the directions hearing, apparently by a solicitor from Legal Aid.
13. Section 29A of the AAT Act provides that an application to the Tribunal, is not taken to be made unless the prescribed fee (if any) in respect of the application is paid. Regulation 19(4) of the Administrative Appeals Tribunal Regulations 1976 (the AAT Regulations) provides that an application fee payable for lodging an application must be paid before lodgement. Regulation 19(6)(iii) of the AAT Regulations prescribes this fee to be $100 in the case of a prison inmate. An application fee may also be waived.
14. The operation of s 29A of the AAT Act, particularly whether a failure to pay the required application fee can be cured at a later date, has previously been considered by the Tribunal in Re Gallagher and Minister for Immigration and Citizenship [2011] AATA 10. There the Tribunal held that if an application had been made within time and a fee paid subsequently but before the matter was to be heard and determined by the Tribunal, then there had been substantial compliance with the requirements of s 29A. In that matter the facts about the applicant’s application for review and fee payment were the same as in this matter.
15. This is different to Feyisa Eggu and Minister for Immigration and Citizenship [2010] AATA 1003 where the Tribunal found that in circumstances where the applicant neither made the application within time allowed by s 500(6B) of the Act nor paid the prescribed fee under s 29A of the AAT Act, the Tribunal did not have the requisite jurisdiction to hear the application.
16. On the basis of Gallagher, given that Mr Reedy’s application for review was filed within the time prescribed by subs 500(6B) of the Migration Act, the payment of the filing fee after this period is no bar to the Tribunal's jurisdiction to hear this matter.
What of Mr Reedy’s evidence was before the Tribunal?
17. The transcript of the directions hearing before Senior Member Toohey demonstrates that Mr Reedy was informed on several occasions during the directions hearing, that it was essential that his evidence be filed and served at least 2 business days before the hearing: ss 500(6H) and (6J) of the Act. The 'two-day rule' requires the Tribunal to not have regard to any information presented orally or documents submitted in support of an applicant's case if this does not occur. This is not a matter in which the Tribunal has any discretion.
18. Mr Reedy was clearly informed that he was to provide his evidence by 9 May 2011 or it could not be taken into account. In fact, for more abundant caution, SM Toohey directed that his evidence be filed and served by 6 May 2011. Unfortunately Mr Reedy did not provide any evidence until 10 May 2011.
19. In Geum Su Kim and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 239, DP Block concluded, at [106], that three propositions could be discerned about the application of ss 500(6H) and (6J), having regard to Goldie v Minister for Immigration and Multicultural Affairs (1999) FCA 1277 (and also as applied in SAAC and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1209, Msumba and Department of Immigration and Multicultural and Indigenous Affairs [2000] AATA 87 and Re Trinh and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1306). Those propositions are, at [106]:
“(a)However wide a meaning can be given to the term “statement” it must refer to a statement containing information to be presented orally in support of a person’s case; it cannot have so extended a meaning that it encompasses a letter written in a professional capacity on behalf of a person
(b)The prohibition applies only to evidence presented in support of a person’s case. (See in this particular regard Deputy President Forgie in Trinh (supra))
(c)The prohibition may apply to evidence given in chief but not to evidence elicited in cross-examination.”
20. The Full Federal Court made it clear in Goldie that the purpose of ss 500(6H) was to give the Minister an opportunity to answer the case being put by an applicant. The two-day rule does not, however, prevent an applicant in examination-in-chief from explaining or amplifying material in the written statement, and that information can be tested by cross-examination. Information elicited in that way can be used to support an applicant’s case: per Msumba at [5].
21. Having decided that the ‘information’ provided by Mr Reedy on 10 May 2011 was not properly filed in accordance with S500(6H) I invited Mr Reedy to explain and amplify the two statements he had previously filed, namely, his ‘Personal Details Form’ (which is a document a person being considered for visa cancellation is invited to complete) and the statement attached to his application for review. The Respondent cross-examined Mr Reedy and therefore more information was available to the Tribunal.
THE SUBSTANTIVE ISSUE
22. The substantive issue in this matter is whether the Tribunal should cancel Mr Reedy’s visa.
PRIMARY CONSIDERATIONS
(A)protection of the australian community from serious criminal or other harmful conduct, particularly crimes involving violence
23. Factors relevant to assessing the degree of risk to the Australian community of Mr Reedy’s continued stay include the seriousness and nature of his conduct and the risk that it may be repeated. Violent crimes are of special concern: Para 10.1.1(1).
(i)The nature and seriousness of Mr Reedy’s conduct
24. Paragraph 10.1.1(2) of the Direction lists ‘serious’ offences, one of which is armed robbery.
25. Paragraph 10.1.1(3) of the Direction provides that the sentence imposed for an offence is considered indicative of the seriousness of the conduct against the community. Mr Reedy received a sentence in excess of 12 months for the armed robbery.
26. Due regard must be given to the extent of a person's criminal record. Mr Reedy does not have an extensive criminal record. However, on the same day he was sentenced for the armed robbery he was also sentenced to four months imprisonment for common assault. Both these offences involved robbery and either threatened or actual violence. The factual circumstances surrounding the principal offence indicate that Mr Reedy possessed a willingness and an apparent capacity to use significant violence: per Ngati and Minister for Immigration and Citizenship [2009] AATA 693 p 7.
27. Further, at the same time he was also sentenced for a period of four months imprisonment for ‘Fail Appear Bail Undertaking’.
28. While in prison Mr Reedy had 2 internal charges, according to the Probation and Parole Service Pre-Release Report. The most recent was on 7 February 2011, when Mr Reedy was found in possession of a quantity of Buprenorhine during a search and a urinalysis showed the presence of Buprenorhine and Cannabis. During the search Mr Reedy denied the Buprenorhine was his, notwithstanding that it had been found in his underpants.
29. The Directions provides at Para 10.1.1(4)(a) that evidence from independent and authoritative sources about the person, such as judicial comments, are also to be considered. In sentencing Mr Reedy on 19 April 2010 Judge Frearson made the following comments:
“... [H]e was in company, there was a vulnerable victim, there was actual and threatened violence, the co-offender was armed with a knife and the offence cannot be said to be entirely opportunistic, there was some degree of planning about it.”
30. Whilst noting Mr Reedy‘s dependence on drugs and alcohol, Judge Frearson found that there was nothing that diminished the objective gravity of the offence. He noted that:
“Notwithstanding the disadvantages of his background, there comes a time when people have to take responsibility for their own behaviour particularly when it is serious criminal behavior.”
31. In considering the seriousness and the nature of Mr Reedy’s conduct, the Tribunal is required to take into account any relevant mitigating factors that Mr Reedy puts forward: Para 10.1.1(4)(b) of the Direction. In balancing the mitigating factors advanced by an applicant, all factors which are relevant to the totality of the applicant’s conduct must be taken into account. It is not for the Tribunal to go behind the conduct or the factors, but only to take into account those relevant mitigating factors. Those factors do not need to relate specifically to the seriousness of each individual offence and general mitigating factors may be taken into account: Green v Minister for Immigration and Citizenship [2008] 100 ALD 346 at [26].
32. Mr Reedy said that he had been homeless when his co-accused had suggested the armed robbery. As to the assault, which occurred while he was on bail for the armed robbery, he said that he had had an altercation with a friend and had (only) pushed him. According to Mr Reedy, references to a ‘punch’ were incorrect.
33. It was well documented that Mr Reedy had a very difficult childhood. He was in foster care from the age of about 10 and, although he had received a sport scholarship to a prestigious school, left to work on a farm at age 14 or 15. He fled New Zealand for Australia after having stolen $10,000 from his cousin who had gang ties.
34. He commenced drinking alcohol while in New Zealand, binge drinking on weekends and by 16 was drinking at least 18 standard drinks a day. In Australia he began also regularly consuming a variety of drugs. From 18 he gambled heavily. Because he worked as a brickies’ labourer he could only work (and therefore get paid) when the weather was good. Together, his drug and alcohol use, his gambling and the erratic nature of his work led to periods of homelessness when he could not afford to pay the rent.
35. Dependence on drugs and alcohol is not a mitigating factor, and is not so viewed in sentencing: R v Henry & Ors (1999) 46 NSWLR 346 pp 382 to 395 per Spiegelman CJ. Indeed, when it leads to the commission of other crimes, the community has all the more need to be protected: Weti and Minister for Immigration and Multicultural Affairs [2006] AATA 1054. In limited circumstances, drug abuse may be pertinent to the issues of impulsiveness or planning, the ability of the offender to exercise judgement and its impact upon prospects of rehabilitation or recidivism during sentencing: Tien Hung Vu v R [2006] NSWCCA 188 at [59] to [64]. It is appropriate to apply the same principles when exercising the discretion in s 501: Re Carlos Otineru and Minister for Immigration and Citizenship [2008] AATA 873 at [74]. On that basis, Mr Reedy’s drug abuse is not a relevant mitigating factor.
(ii) The risk that the conduct may be repeated
36. Paragraph 10.1.2(1) of the Regulation states that a person's previous general conduct and total criminal history are highly relevant to assessing the risk of re-offending. Paragraph 10.1.2(2) provides that the factors particularly relevant to assessing risk are:
“(a)a recent history of convictions which should be considered as indicating an increased risk of re-offending;
(b)evidence of the extent of the rehabilitation … Greater weight should generally be given to evidence from independent and authoritative sources …; and
(c)evidence that the person has breached judicial orders [and] … other relevant undertakings …”
Criminal history and recent convictions
37. Mr Reedy‘s offences all occurred within a relatively short period of time. The offences appear to have occurred at a time when he was impecunious because of his drug, alcohol and gambling addictions.
38. Mr Reedy has been convicted of gaol offences, the most recent of which was in February this year.
39. Mr Reedy did not deny the offence of using a drug in gaol but said that he took the drug when he had been told he was going to be sent back to New Zealand. He said that before that he had not otherwise used drugs in gaol. However, there was no evidence of other drug use in gaol: a urinalysis conducted on 7 March 2011 was negative.
40. The Respondent contended, and I agree, that Mr Reedy’s criminal history and general conduct suggest a risk that he will re-offend.
Evidence of rehabilitation
41. Mr Reedy contended, and I accept, that he had undertaken five courses while in gaol. He described this as the maximum number of courses he could have done in the available time. He said he had commenced a bricklaying course at TAFE. He contended that he had always worked while in gaol, although the Probation and Parole report of 10 February 2011 noted that for a three week period he had been a ‘dismissed worker’ in September 2010. Mr Reedy denied this.
42. Mr Reedy submitted that when he first went to gaol he might, at that time, have been at a high risk of re-offending but he thought he had always been only a ‘medium’ risk. He submitted that while his record is ‘not good’, it is ‘not bad, either’.
43. Mr Reedy‘s pattern of offending appears to have continued whilst in prison. In February 2010, whilst serving his sentence for armed robbery, he was found to be not suitable for placement at Parklea Correctional Facility due to what was described as ‘credible reports of his pivotal role in the distribution and manufacture of gaol-made weapons’. This conduct was viewed sufficiently seriously that Mr Reedy‘s security classification was upgraded as a result.
44. In March 2011 he was considered by the Probation and Parole Board to be unsuitable for parole but he said he successfully appealed. The Probation and Parole Service’s assessment was that Mr Reedy had not seemed to progress while in custody. He was said to tend to minimise the seriousness of his actions or to deflect responsibilities into others. He was said to be naive in relation to the need for compliance within the custodial environment.
45. A report from St Heliers Correctional Facility identified Mr Reedy as playing a ‘pivotal role in the distribution and manufacture of gaol-made weapons in the form of shivs’. The Respondent submitted that this indicates that Mr Reedy continues to show a disregard for authority and no genuine commitment to abstaining from criminal conduct. Mr Reedy said that because he is always wanting to do more courses, the prison officers think he is ’hassling’ them.
46. The Probation and Parole Service reported that throughout his imprisonment Mr Reedy had been mentioned in case notes in relation to ‘non-compliant and intimating behaviour’, the latest being on 27 January 2011. Copies of several reports were available. Mr Reedy said that the reports of his intimidating conduct were incorrect. He said, in effect, that other prisoners sought self-advancement by complaining about the conduct of other prisoners, such as himself. Prison officers then became more wary and vigilant around him and would inappropriately find fault in his conduct. He repeated his assertion that if he had done anything wrong there would have been no hesitation about putting him on a charge. Mr Reedy agreed that he had had an altercation with a medical officer and with a prison officer but denied all the other allegations, of which there were several. In relation to the incident with the prison officer he said that, while he had been present, it was another person who had been responsible.
47. In September 2010 he was said to have been recorded talking on the phone to his former employer about stand-over tactics, but denied he was participating, claiming to have been speaking about other people using intimidating conduct. The next day Mr Reedy was required to enter into a ‘Case Management Performance and Behavior Contract’ because of poor custodial and employment history as well as the alerts and consequential report raised regarding the phone call noted above. The ‘contract’ put him on notice that his prisoner classification level would be affected by inferior behavior.
48. Mr Reedy denied the allegations and contended that had he been guilty of any wrongdoing he would have been put on a charge. There may be some legitimacy in Mr Reedy‘s assertion that had he been ‘guilty’ of the misconduct referred to, he would have been charged with prison offences. There was no information before me as to the ‘prison charge’ regime. It is, however, difficult to accept Mr Reedy’s assertion that, in effect, he is being victimized, by both fellow prisoners and by a number of different prison staff at different gaols. It seems most implausible that the multiple references to poor conduct could all be mistaken.
49. Paragraph 10.1.2(2)(b) of the Direction requires the Tribunal to take into account the extent of rehabilitation already received and the prospect of future rehabilitation. There is limited evidence of rehabilitation already achieved and Mr Reedy’s alleged reformation is entirely untested: the Applicant and Minister for Immigration and Citizenship [2010] AATA 372 at [57].
50. The Tribunal should have regard to relevant judicial comments in making its assessment of an applicant's risk of recidivism. Judge Frearson, in his sentencing remarks of 19 April 2010 considered Mr Reedy was unlikely to re-offend. He noted:
“… on the day of the offence, he had not consumed alcohol or drugs though he had consumed those substances leading up to the offence but not on the actual day of it.
…I note that in relation to the offender's presentation he presented with some degree of immaturity, laughing inappropriately at times and that is probably indicative of the fact that he has not grown up ...”
51. The respondent submitted that the comments of Judge Frearson suggest that Mr Reedy requires significant rehabilitation, of which, there is little evidence to date. Further, it was submitted, that Judge Frearson's comments demonstrate Mr Reedy‘s propensity to offend, even when sober. The respondent submitted that this indicates that the risk of recidivism is high.
52. Mr Reedy said that, while he had not taken drugs on the day of the offence he had taken drugs the night before and still was under the influence of drugs. Ultimately, I do not consider this to be of great moment: Mr Reedy was prepared to plan and engage in armed robbery while impecunious. Further, whilst Mr Reedy appears to have undertaken some drug and alcohol rehabilitation courses while in prison there is no evidence that he has addressed his gambling problem.
53. Mr Reedy’s ability to refrain from the use of drugs and alcohol and engage in criminal behaviour is entirely untested. There is no objective evidence as to whether he would remain drug-free when in the community. Of concern is that following a setback, namely being advised that he was likely to be deported, he again resorted to drugs while in gaol. Life, unfortunately, is full of setbacks. I cannot be satisfied on the evidence before me that Mr Reedy has achieved significant rehabilitation and will abstain from substance abuse in the future. Further, past participation in and completion of programs cannot be solely regarded as a reliable indicator of any positive change in his behaviour. Sentencing remarks by Judge Frearson on 19 April 2010, suggest that Mr Reedy has anti social characteristics and poor life management skills.
54. An assessment of the nature of the harm the applicant is capable of causing requires an evaluation by the Tribunal of the likely consequences to the community of the risk of recidivism eventuating. Even if the risk of recidivism is not considered to be high, the risk will strongly support cancellation when recidivism, if it occurs, may cause great harm: Re Rajaratnam and Minister for Immigration and Multicultural Affairs [2006] AATA 942 at [51]. In this case, Mr Reedy‘s violent offences have the capacity to cause significant harm to the community.
55. There is insufficient evidence to persuade me that Mr Reedy has rehabilitated since his incarceration, and this weighs in favour of cancellation.
Breaches of judicial orders
56. Mr Reedy agreed that from the time of the commission of the armed robbery he was ‘on the run’ until his arrest in May 2009. He said he was scared of going to gaol. When arrested he was granted bail but failed to appear on 13 June 2008, as required. For almost a year he eluded police, until his arrest on 27 May 2009.
57. On the same date that he was sentenced for the principal offence, he was convicted in the Penrith Local Court for 'Fail Appear Bail Undertaking'.
58. Mr Reedy‘s history of breaching court-imposed obligations suggests that he does not take such obligations seriously, and that his behaviour and actions are not constrained by court-imposed obligations. I consider that Mr Reedy‘s breaches of the law and court imposed obligations indicate that there is a risk that he will again engage in conduct in breach of the law, and this weighs in favour of cancellation.
Summary in relation to the first primary consideration: the protection of the Australian community
59. I note that in Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198, the Tribunal held that a real risk of re-offending is one which is not far fetched or fanciful and can include a low or minimal risk. As President Mathews J said, '[o]nce a person has shown a disregard for the law, it can never be said that there is no risk of reoffending': Kwong Leung Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56 at [51].
60. Taking into account Mr Reedy’s previous conduct and his reported conduct in gaol, I find there is a real risk that he will re-offend, and that he presents a real risk of harm to the Australian community. For the reasons discussed above, I find the first primary consideration, being the protection of the Australian community from serious criminal or other harmful conduct, weighs in favour of cancelling Mr Reedy‘s visa.
(B) Whether Mr Reedy was a minor when began living in Australia
61. Paragraph 10.2 of the Direction provides that:
“(1)If the person was a minor when they began living in Australia and spent their formative years in Australia, thereby increasing the likelihood of establishment of greater ties and linkages to the Australian community, this is to be given favourable consideration.
(2)Less weight should be given if the person began living in Australia as a minor but was close to attaining adulthood at that time.”
62. Mr Reedy was aged 17 when he first arrived in Australia, turning 18 about 3 months later.
63. Although Mr Reedy was a minor when he arrived in Australia pursuant to Part B 10.2(2) of the Direction, less weight should be attributed to this fact as he was close to attaining adulthood at the time of his arrival. He has not spent his formative years in Australia and in my view his circumstances in this regard do not attract favourable consideration.
(c)The length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct
64. Paragraph 10.3(1) of the Direction provides that:
"Reflecting the fact that the longer a period of residence in Australia the greater the likelihood of significant ties to the Australian community, more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal conduct or activity that bears negatively on their character.
Note: For example, a period of more than 10 years residence in Australia prior to a person engaging in criminal activity or activity which bears negatively on the person's character would be an important consideration."
65. Mr Reedy has resided in Australia since July 2005, a period of about six years. His first conviction related to an offence committed on 9 September 2007, just over two years after arriving in Australia. This relatively short period of time prior to criminal activity weighs in favour of visa cancellation: Rosson v Minister for Immigration and Citizenship [2011] FCA 194 at [23].
(d) Relevant International Law obligations
66. Mr Reedy‘s circumstances do not require assessment in relation to any of Australia's international obligations.
OTHER CONSIDERATIONS
67. Other considerations must be taken into account if relevant, but generally should be given less weight than primary considerations: Para 11(2). The relevant considerations in this case are considered below.
Family ties, the nature and context of any relationships
68. Mr Reedy claimed to have been in a relationship with a young woman since the beginning of 2006 when she was aged 15. He said he lived with her for over a year before he went to gaol in May 2009.
69. Whilst Mr Reedy may have been in a de facto relationship with an Australian citizen since 2006 and, she has visited him in prison the respondent contended that she would not suffer emotional hardship if Mr Reedy were to be deported. At one point in the relationship when Mr Reedy‘s substance abuse deepened, his de facto left him.
70. r Reedy said he had a cousin in Newcastle. That person does not appear on the list of visitors to Mr Reedy while in gaol. There was no assertion that they are close. Mr Reedy also said that his foster mother had cousins in Australia, and although he has met them at weddings and funerals he is not close to them. In his personal details form none were recorded as being ‘relatives’ in Australia. This may however be explained by the form not allowing for such subtleties. Nonetheless, it remains that Mr Reedy is not close to these ‘relatives’. In fact he could not remember all their names.
71. On the other hand, Mr Reedy’s foster mother, siblings and extended family reside in New Zealand. The respondent contended that Mr Reedy‘s family ties are therefore at no risk of being affected should he be removed from Australia. Further, given that Mr Reedy has no family in Australia, this heightens the risk that he will have no family support upon release. Alternatively, visa cancellation would mean that he would return to New Zealand where his family resides and where they – and especially his foster mother - can offer him support.
72. Although I accept that Mr Reedy and his partner would prefer that he remain in Australia, this does not outweigh the primary consideration of the protection of the Australian community.
Links to New Zealand
73. Mr Reedy has lived in Australia for a relatively short time. Accordingly, it would be reasonable to conclude that he not only retains considerable familiarity with the culture and society of New Zealand, but also that he may have better prospects given the family connections in New Zealand.
74. Mr Reedy claimed that he will be at risk from a criminal gang if he returns to New Zealand. The Respondent submitted that he could utilise normal law enforcement authorities for protection. This, in my view, demonstrates a degree of naiveté. A better alternative would be to live in an area where he would be less likely to be exposed to risk. Having previously moved to Australia from New Zealand, he has demonstrated that he is capable of major geographical relocation.
75. I consider that it would not be a significant hardship for Mr Reedy to return to New Zealand.
Hardship likely to be experienced by the applicant or their immediate family members lawfully resident in Australia
76. The respondent accepted, and I agree, that the cancellation of the visa may require Mr Reedy to readjust to life in New Zealand. Mr Reedy may suffer some disappointment if he had to return to New Zealand, particularly if his partner elects to remain here. That his partner continued to visit him in gaol may suggest she will follow him to New Zealand.
77. Mr Reedy has experience as a ‘brickies labourer’ and is studying bricklaying at TAFE. One might speculate that he would have reasonable job prospects in earth-quake affected areas of New Zealand.
78. I did not have details of Mr Reedy’s TAFE studies, beyond that they entailed bricklaying. It is highly probable that continued study would be available to him in New Zealand, and that disruption to his studies would be marginal until he re-enrolled at a TAFE equivalent.
Previous formal advice
79. Mr Reedy has not previously been formally warned in relation to his criminal conduct and the character provisions of the Act.
Health
80. There is no evidence to suggest that Mr Reedy has any health problems, or that he requires any specialised care that would not be available in New Zealand. It is noted that he suffered depression while in gaol, but that this was said to be associated with his incarceration. He ceased taking the medication of his own accord because it made him too drowsy. Details were sparse, but in any event, assuming Mr Reedy did require further medication, there was no evidence, and indeed it is highly unlikely, that such medication would not be available in New Zealand.
THE BALANCE OF CONSIDERATIONS
81. I consider the primary considerations, especially the risk of Mr Reedy repeating his criminal conduct, and all other relevant primary considerations weigh in favour of cancelling Mr Reedy’s visa. The primary considerations of the protection and expectations of the Australian community outweigh any hardship to Mr Reedy and his partner, such that the discretion in s 501 of the Act should not be exercised in Mr Reedy‘s favour.
DECISION
82. The Tribunal affirms the decision under review.
I certify that the 82 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.
Signed: ...............................sgd...............................................
Casey Comans, AssociateDates of Hearing 12 May 2011
Date of Decision 30 May 2011
Applicant Manu Reedy, Self-represented
Solicitor for the Respondent Leonard Leerdam, DLA Piper Australia
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