Rimaati Teariki Tera and Minister for Immigration and Citizenship

[2012] AATA 906

[2012] AATA 906 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/4689
Re	Rimaati Teariki Tera
APPLICANT
And	Minister for Immigration and Citizenship
RESPONDENT

DECISION

Tribunal	Deputy President R P Handley
Date	20 December 2012
Place	Sydney

Decision Summary       The decision under review is affirmed.

........[sgd].....................................

Deputy President R P Handley

CATCHWORDS

IMMIGRATION – Visa cancellation – Direction No 55 – Character test – Substantial criminal record – Primary considerations – Other considerations – Decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth)

SECONDARY MATERIALS

Direction [no. 55] - Visa refusal and cancellation under s 501

REASONS FOR DECISION

Deputy President R P Handley

1. Mr Tera has applied to the Tribunal for the review of a decision of a delegate of the Minister for Immigration and Citizenship (the Minister) to cancel his visa on the ground that he does not pass the character test because of his substantial criminal record.

   BACKGROUND

2. Mr Tera was born in the Cook Islands in September 1964 and is now aged 48. He is a New Zealand citizen.  Mr Tera arrived in Australia on 20 February 2010, at the age of 45, and was granted a Class TY Subclass 444 Special Category (Temporary) visa on arrival. On his Incoming Passenger Card, he declared that he had no criminal convictions. He has not departed Australia since arriving.

3. Mr Tera has a long criminal history in New Zealand of more than 50 convictions, his first convictions being on 25 September 1980 and his last being on 18 August 2004. These include a significant number of robberies/burglaries and a range of offences involving violence including of a sexual nature. He has been sentenced to terms of imprisonment of 12 months or more on at least seven occasions including a sentence of three years and six months and another of five years and six months. In Australia, Mr Tera has convictions for larceny and assault occasioning actual bodily harm for which, on 12 October 2011, he received a cumulative sentence of two years with a non-parole period of 18 months, reduced to 12 months with a non-parole period of three months on Mr Tera’s appeal against the severity of the sentence. Mr Tera also has a conviction for ‘aggravated break and enter and commit serious indictable offence in company’ for which, on 18 May 2012, he was sentenced to two years imprisonment from 24 October 2011 with a non-parole period of 12 months. Mr Tera was released on parole on 24 October 2012 and taken into immigration detention at Villawood.

4. On 23 April 2012, the Department sent Mr Tera a ‘Notice of Intention to Consider Cancellation’ of his visa, inviting him to respond. The Department subsequently sent him a further five follow up letters. In a letter to the Department dated 25 August 2011, Mr Tera said he had not received any of the previous letters. He said the information held about him was racially prejudiced and discriminatory and claimed the charges against him heard in Dubbo Local Court were dismissed. He said he was appealing to “the Supreme Court of Sydney” to clear his name.

5. By letter dated 3 October 2012 (which Mr Tera said he received on 11 October 2012), a delegate of the Minister advised Mr Tera that his visa had been cancelled and provided him with a Statement of Reasons for the cancellation of his visa under s 501(2) of the Migration Act 1958 (Cth) together with a Departmental Submission relating to his visa cancellation.

6. On 18 October 2012, Mr Tera applied to the Tribunal for a review of this decision.

   RELEVANT LAW AND POLICY

7. Section 501(2) of the Migration 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”.  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, or to two or more terms of imprisonment where the total of those terms is two years or more.

8. Mr Tera has been sentenced to terms of imprisonment of 12 months or more on at least seven occasions.  Thus, he does not pass the character test.  It was therefore open to the Minister to cancel Mr Tera’s visa.  In exercising this discretion, the decision-maker must apply Direction [no. 55] - Visa refusal and cancellation under s 501 of the Act (Direction 55).  Direction 55 sets out a number of principles that provide a framework for decision-makers in approaching their task. These include the following:

   6.3(1) …Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

   (2) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

   (3) …

   (4) … Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

   (5) …

   (6) The length of time a non-citizen has been making a positive contribution to Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

9. Paragraph 7(1) of Direction 55 states that informed by the principles in paragraph 6.3, a decision-maker:

   (a) …

   (b) is required to determine whether the risk of future harm by a non-citizen is unacceptable. This requires a balancing exercise, involving a consideration of the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community.

10. Paragraphs 9 and 10 set out a number of ‘primary’ and ‘other’ considerations to which the decision-maker must have regard when considering whether to exercise the discretion to refuse or cancel a visa. The ‘primary considerations are set out in paragraph 9(1):

    9. Primary considerations – visa holders

    (1) In deciding whether to cancel a person’s visa, the following are primary considerations:

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

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

    (c) The best interests of minor children in Australia;

    (d) Whether Australia has international non-refoulement obligations to the person.

11. Subparagraphs 8(4) and (5) of Direction 55 state:

    (4) Primary considerations should generally be given greater weight than the other considerations.

    (5) One or more primary considerations may outweigh other primary considerations.

    The relevant primary and other considerations are discussed below.

    PRIMARY CONSIDERATIONS

12. The ‘primary’ considerations relevant in Mr Tera’s case are the protection of the Australian community from criminal or other serious conduct and the strength, duration and nature of his ties to Australia. Mr Tera states that he does not any minor children in Australia and Australia does not appear to have any international non-refoulement obligations to him. Mr Tera told me that he has lodged a ‘protection visa’ application as a result of the threat to his life from gang members in New Zealand, but I have no other evidence in relation to such an application. The relevant two primary considerations are addressed below.

    PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT

    Protection of the Australian community

13. Paragraph 9.1 of Direction 55 states:

    (1)   When considering the protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

    (2) Decision-makers should also give consideration to:

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

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

    The nature and seriousness of the conduct

14. Paragraph 9.1.1(1) of Direction 55 states:

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

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

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

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

    d)The principle that any conduct that forms the basis for a finding that a person does not pass the character test under s 501(6)(b) or (d), or is not of good character under s 501(6)(c), is considered to be serious;

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

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

    g)The cumulative effect of repeated offending;

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

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

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

15. As is evident from Mr Tera’s criminal history, he has committed, and been convicted of, a significant number of serious sexual offences and offences involving violence. In accordance with paragraph 9.1.1(1) above, such crimes are viewed very seriously. Mr Tera has a long history of offending, over more than 30 years, for which he has received significant prison sentences on numerous occasions. His most recent conviction is dated 18 May 2012. On that occasion, Acting District Court Judge Lerve sentenced Mr Tera to two years imprisonment from 24 October 2011 with a non-parole period of 12 months, for the offence of ‘aggravated break and enter and commit serious indictable offence in company’.

16. The Tribunal has been provided with the sentencing remarks of Auckland District Court Judge BN Morris on Mr Tera’s most recent convictions in New Zealand on 18 August 2004 for ‘robbery’, ‘male assaults female’, and ‘injuring with intent’, for which he was sentenced to three years and six months, nine months and 18 months, respectively, to be served concurrently. The Judge commented that an aggravating feature was that the robbery was of a stranger, but he noted that the assault was on Mr Tera’s best friend. Mr Tera told me that that he disputed the judge’s description of what had occurred. He alleged that his friend cut himself when he tripped over Mr Tera’s dog and fell down some stairs, and that he did not injure his friend’s wife, the subject of the assault charge.

17. The Tribunal has also been provided with the remarks of Justice Laurenson of the New Zealand High Court on 3 October 1997 on sentencing Mr Tera following his conviction by a jury for ‘assault with intent to commit sexual violation’ and ‘threatening to kill’. Justice Laurenson sentenced Mr Tera to five and a half years and two years’ imprisonment respectively, to be served concurrently. He found that Mr Tera had entered the victim’s house when she was alone with her two children and assaulted her “with the quite obvious intention of committing sexual violation which could only be rape. Later you threatened to kill her”. The victim escaped. Justice Laurenson said this was “a serious assault on a vulnerable and an unprotected woman” and commented on Mr Tera’s “arrogance” and the “contemptuous disregard” which he displayed towards the victim. Justice Laurenson addressed Mr Tera as follows:

    Your behaviour, your criminal behaviour, seems to be caused by frustration, drunkenness and, disturbingly, and [sic] what the psychiatrist calls an exploitive attitude to others which is evidenced by the way in which you minimise and deny your offending.

18. Mr Tera told me that the victim was his neighbour and that he never entered her house and did not injure her. Rather, she called him over asking for a cigarette. He said what she alleged occurred did not happen. He pleaded not guilty to the charges and fought them throughout the legal proceedings. He also denies ever having had a drinking problem.

19. With regard to the offence of ‘attempted sexual violation’ of which Mr Tera was convicted by a jury on 29 August 1989 and sentenced to three years imprisonment, Hillyer J, in the New Zealand High Court, described how Mr Tera came up behind the victim who was walking home through a city street, “threw her to the ground, and landed on top of her”. Mr Tera told me that this was a domestic argument with his girlfriend and he only pushed her. He did not contest the charge because he did not want to “drag” her through court.

20. Mr Tera also denied that he committed the offences of which he was convicted in Australia. He said the ‘larceny’ and ‘assault occasioning actual bodily harm’ convictions arose out of a relationship with a lady when he was living and working in Dubbo. He had an opportunity to go and work in a copper mine in Nyngan. When he told his friend of his intention to do so, she was jealous and unhappy about this and made allegations against him. It was as a result of this that, on 24 March 2011, he was charged with stealing her wallet and assaulting her. He denied these allegations but did not want to give evidence in court and pleaded guilty. He subsequently wanted to appeal against both the convictions and the severity of the sentences but when his lawyer asked him to sign the appeal form, he did not realise it was only an appeal against the severity of sentence. Mr Tera said he has received bad legal evidence on a number of occasions and has “sacked” three lawyers.  He is intending to appeal to the Supreme Court against the convictions.

21. I have examined the documents produced under summons by the NSW Department of Corrective Services and the NSW District Court in Dubbo provided to the Tribunal by the Respondent, who also provided Mr Tera with a copy. These documents show that the appeal was purely against the severity of sentence and when, on 18 May 2012, an application was made to Acting Judge Lerve to expand the grounds of appeal, this was refused. Acting Judge Lerve reduced the sentences to three months in respect of the conviction for larceny and 12 months, with a non-parole period of three months, for assault occasioning actual bodily harm.

22. Mr Tera’s other conviction in Australia is for ‘aggravated break and enter and commit serious indictable offence in company’ for which, on 18 May 2012, he was sentenced to two years imprisonment from 24 October 2011 with a non-parole period of 12 months. This offence, which was committed on 10 March 2011, involved Mr Tera and two co-offenders breaking into the Railway Bowling Club in Dubbo. His two co-offenders entered the roof of the Bowling Club and one of them went into the poker machine room, where he broke into and robbed the machines. Mr Tera remained on the roof of the building while this was happening. All three offenders were arrested on the scene, an internal alarm having alerted police to the break in.

23. Acting Judge Lerve found there was some planning involved and noted that although it was put to him that Mr Tera was intoxicated, intoxication should not be regarded as a mitigating factor. Acting Judge Lerve noted the support provided to Mr Tera by Ms Frances Avent, who is local member of the Baha’i faith to which Mr Tera says he belongs, and who offered to support Mr Tera on his release. She has also made a similar offer, by letter dated 26 October 2012, in these proceedings. Acting Judge Lerve commented that “[g]iven the evidence of the offender, I am satisfied on balance, although only just, that he is remorseful”, but “[g]iven the appalling criminal history of the offender, I must admit to some degree of circumspection about the long term prospects of rehabilitation”.

24. Mr Tera said that what happened was “just a silly mistake” on his part, wanting to join in with some friends. He complained that in arresting him, a police officer “jumped on my lower back” and Mr Tera ended up in Dubbo Hospital. He continues to suffer back pain for which he takes prescribed pain killers. Mr Tera also complained that the judge discriminated against him by giving him such a heavy sentence when he was not the principal perpetrator.

25. I note Mr Tera’s criminal history in New Zealand indicates that he has breached judicial orders, both bail and parole, on, it would appear, numerous occasions. Moreover, he was on bail following being charged with aggravated burglary on 10 March 2011 when he was arrested on 24 March 2011 on the charges of larceny and assault occasioning actual bodily harm.

26. I also note that on entry into Australia on 20 February 2010, Mr Tera declared that he had no criminal convictions. Clearly this was false information. Mr Tera gave evidence that he was unable to read the wording on the ‘Incoming Passenger Card’ and asked the passenger sitting next to him on the plane to complete the card for him. Mr Tera supplied the information he was asked for by the passenger completing his Card, and Mr Tera signed the declaration on the card assuming that everything on the card was stated correctly. While I have some sympathy for Mr Tera in terms of the very small size of wording on the card, the fact, nevertheless, is that he signed the declaration and if the neighbouring passenger asked him the question posed on the Card to enable him to fill in the answers for Mr Tera, he would have asked about convictions. I do not, therefore, find Mr Tera’s explanation convincing.

27. The general tenor of Mr Tera’s evidence about his offending was either that the court version of events was wrong or that there were others who were largely responsible for the events leading up to his arrest. This was obviously not the conclusion reached by the courts. Mr Tera also complained of racial discrimination by the police. I note a Probation and Parole Pre-Sentence Report dated 12 October 2011 stated: “Tera appears to pose a considerable risk to the community in terms of violent offending. His reluctance to accept responsibility for his actions, further adds to the risk.”

1. Mr Tera submitted that I should not take into account his convictions in New Zealand because he has served his time for these, he is prejudiced by his New Zealand criminal history and this is not relevant to the current proceedings. I told Mr Tera that I rejected this submission. Pursuant to s 499(2A) of the Migration Act, the Tribunal “must comply” with the Minister’s directions made under s 499(1) concerning the performance of its functions and the exercise of its powers in relation to, relevantly, s 501(2). There is nothing to indicate in either the Migration Act (for example, the definition of ‘substantial record’ in s 501(7)) or Direction No 55 that consideration of a person’s criminal history should be limited to their criminal history in Australia.

2. In terms of the Minister’s discretion to refuse to grant a visa under s 501(1) (rather than the cancellation of a visa under s 501(2)), such an interpretation would make a nonsense of the power since, in most cases, a person applying for a visa will be outside Australia and the person’s criminal history, if any, will reflect their conduct in another country. In relation to the discretion under s 501(2), I am satisfied that protecting the Australian community from criminal or other serious conduct, requires consideration being given to the totality of the person’s criminal history to date, especially where the person has only been in Australia for a short time. This is necessarily of particular interest in Mr Tera’s case, his having failed to declare his criminal history when he first entered Australia in February 2010.

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

3. Paragraph 9.1.2(1) states that, in considering whether a person represents an unacceptable risk of harm:

   … decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. In making this assessment, decision-makers must have regard to, cumulatively:

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

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

   i.information and evidence on the risk of the person re-offending; and

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

4. Despite being invited to do so, Mr Tera has not provided the Tribunal with any independent evidence of rehabilitation. While he complained at the hearing of a lack of access to legal representation, prior to the hearing and at his request, the Tribunal referred his application to Legal Aid for consideration, and Mr Tera was informed of the need to provide evidence in support of his application.

5. Mr Tera told me that he apologises to the community at large for his conduct. He said he took up the Baha’i faith in New Zealand in 1998 and is now part of the Baha’i community in Australia who have said they will support him if he is released into the community. They will assist him in finding professional help and counselling as well as employment. He wants to sort out his life and get it back on track. He would probably marry again and have children. He hopes to teach the Baha’i faith to whoever wants to hear and to help his community by doing voluntary work, such as lawn mowing and house painting.

6. In summary, the evidence before the Tribunal establishes that Mr Tera has committed a large number of criminal offences, many of them involving violence or sexual misconduct. He has a history of breaching judicial orders and there is no independent evidence as to rehabilitation. While I accept his evidence that he has been a member of the Baha’i faith since 1998, this has not prevented him from committing a number of serious offences since that time. The overwhelming weight of the evidence before the Tribunal indicates that Mr Tera continues to present a significant risk to the Australian community such that the primary consideration of the protection of the Australian community strongly favours the cancellation of his visa.

   STRENGTH, DURATION AND NATURE OF THE PERSON’S TIES TO AUSTRALIA

7. With regard to the strength, duration, and nature of Mr Tera’s ties to Australia, paragraph 9.2(1) of Direction 55 states that decision-makers must have regard to:

   a)How long the person has resided in Australia, including whether the person arrived as a young child, noting that:

   i.Less weight should be given where the person began offending soon after arriving in Australia; and

   ii.More weight should be given to time the person has spent contributing positively to the Australian community.

   b)The strength, duration and nature of any family, social and/or employment links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

8. Mr Tera first arrived in Australia on 20 February 2010 at the age of 45. He is now aged 48. Mr Tera has been in Australia for two years and nine months of which he has spent one year and seven months in prison, having been convicted of three offences. Mr Tera’s evidence is that he has cousins throughout Australia and a niece and her family who live in Sydney. He maintains contact with them via his mobile phone. He is also a member of the Baha’i community. The Tribunal has no other independent evidence of his ties to Australia. On the basis of the available evidence, I am not satisfied that this primary consideration favours Mr Tera’s visa not being cancelled.

   OTHER CONSIDERATIONS

9. As noted above, paragraph 10 of Direction 55 states that ‘other’ considerations, where relevant, must be taken into account but primary considerations should generally be given greater weight. Relevant ‘other’ considerations in Mr Tera's case specifically referred to in the Direction are the effect on his immediate family in Australia; any impact on any business interests he may have in Australia; the impact of a decision not to cancel a visa on the Australian community, including victims of the person’s criminal behaviour and their family, where that information is available and the person has been afforded procedural fairness; and the extent of any impediments the person may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account the person’s age and health, any substantial language or cultural barriers, and any social, medical and/or economic support available to them in that country.

10. Mr Tera told me that his whole family moved to New Zealand from the Cook Islands when he was very young. They lived in south Auckland. His parents are dead as are his eight brothers. He also has an adopted sister whom he has not seen for a long time.  Mr Tera said he has eight children in New Zealand by different mothers. Seven children live in the far north of the North Island; one lives in Auckland. He keeps in touch with them when he can. All his cousins are in Australia and have been here for many years.

11. Mr Tera said he joined a gang on leaving school in New Zealand at the age of 14 and the culture of which he was a part was heavily into drugs and alcohol. (Laurenson J’s sentencing remarks made on 3 October 1997 refer to Mr Tera being a member of the Storm Troopers gang.) Mr Tera denied having taken any illegal drugs since leaving New Zealand – he now only takes prescribed medication – and drinks in moderation.

12. Mr Tera said he worked as a process worker in a factory for three years and before being sent to prison. On his release, he worked as a security bouncer, farm hand and concreter. Mr Tera said he left New Zealand following a threat to his life from his gang and others. This arose out of his setting fire to some chemicals for the manufacture of ‘ice’, a drug that he hates. There is a contract out on his life and, relying on this, he has applied for a protection visa. He said, “I will kill myself before going back”.

13. Mr Tera described various medical problems: he said “half of my body is all broken up” and he is going to have a scan of his arms, shoulders and knees. Sometimes he cannot walk; sometimes he has pain. He tested positive to Hepatitis B and was supposed to see a specialist about this but has not done so. He has been told this has affected his vision. He has recently – a couple of weeks ago – been diagnosed as suffering from diabetes and will be having further tests to work out the appropriate medication. He also takes medication for high blood pressure, high cholesterol and a painkiller for his lower back pain.

14. Mr Tera said he wants to stay in Australia because he can get employment here and the professional help and counselling he needs. He wants to work and continue teaching the Baha’i faith. He loves being in Australia and the people around him.

    CONCLUSION

15. Pursuant to paragraph 7(1) of Direction 55, the following principles are relevant in Mr Tera’s case to inform the exercise of the Tribunal’s discretion under s 501(2) of the Migration Act. Paragraph 6.3(2) of Direction 55 states:

    (2)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    Paragraph 6.3(4) provides that “Australia has a low level of tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time”.

16. Paragraph 7(1)(b) requires the Tribunal to determine whether the risk of future harm is unacceptable. This requires a balancing exercise, involving a consideration of the likelihood of future harm and the extent to which, if at all, any risk should be tolerated by the community.

17. I have undertaken such a balancing exercise. In relation to the first primary consideration, the “[p]rotection of the Australian community from criminal or other serious conduct”, I am satisfied that there is a need to protect the Australian community from the sort of violent conduct of which Mr Tera has been guilty in the past and over an extended period. In the light of his recent offending and long criminal history, there appears to be a significant risk of his further offending. This is not a risk which, in all the circumstances of the case, and noting that Mr Tera did not disclose his criminal history on entry into Australia in 2010, should be tolerated.

18. In terms of the other relevant primary consideration, “[t]he strength, duration and nature of the person’s ties to Australia”, Mr Tera has been in Australia less than three years and has spent more than half that time in prison. He has limited connections with the Australian community. As stated above, I am not satisfied that this primary consideration favours Mr Tera’s visa not being cancelled. With regard to the ‘other’ considerations, which should generally be accorded less weight than the primary considerations, I note that Mr Tera has spent most of his life in New Zealand, his children are there and there should be no significant impediment to his re-establishing himself there. While I note his evidence about the threat to his life from New Zealand gang members, there is no independent evidence of this and, in any event, if this is the case, one would assume this is a problem that can be managed by the New Zealand Police. With regard to Mr Tera’s medical problems, there is no evidence to suggest that these cannot be adequately addressed by the New Zealand health services.

19. Thus, I have concluded that the most weighty consideration in this case is the need to protect the Australian against the significant risk of Mr Tera’s further offending. For this reason, the discretion in s 501(2) of the Act should be exercised to cancel Mr Tera’s visa and, therefore, the decision to cancel his visa should be affirmed.

    DECISION

20. The decision under review is affirmed.

I certify that the preceding 47 (forty seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President R P Handley.

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Associate

Dated 20 December 2012

Dates of hearing	11-12 December 2012
Date final submissions received	12 December 2012
Applicant	In person
Advocate for the Respondent	S Kikkert, Department of Immigration & Citizenship