Saili and Minister for Immigration and Citizenship

[2010] AATA 958

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 958

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/4120

GENERAL ADMINISTRATIVE DIVISION		)
Re		Ayrton Saili

Applicant

And Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal Mr R P Handley, Deputy President

Date1 December 2010

PlaceSydney

Decision The decision under review is affirmed.

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

Mr R P Handley
  Deputy President

CATCHWORDS

IMMIGRATION – visa cancellation – Direction 41 – character test – substantial criminal record – primary considerations – protection of the Australian community – seriousness and nature of the conduct – risk that the conduct may be repeated – a minor when person began living in Australia - length of time ordinarily resident in Australia prior to engaging in criminal activity – other considerations - family ties, the nature and extent of any relationships – person’s age – links to the country to which they would be removed – hardship likely to be experienced by the person or their immediate family members – level of education – applicant lacked necessary insight into stimulus for past behaviour - decision under review affirmed

RELEVANT ACTS:

Migration Act 1958 (Cth): s 501

CITATIONS

Re Puafisi and Minister for Immigration and Citizenship [2009] AATA 689

OTHER AUTHORITIES

Direction [no. 41] - Visa Refusal and Cancellation under section 501

REASONS FOR DECISION

1 December 2010 Mr R P Handley, Deputy President

1.      Mr Saili 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 he has a substantial criminal record.

BACKGROUND

2.      Mr Saili is a New Zealand citizen of Samoan background, aged 20, who arrived in Australia with his mother and younger brother on 6 May 2000, at the age of 10.  He held a Class TY, subclass 444, Special Category (Temporary) visa which permitted residence in Australia indefinitely.

3.      Mr Saili first offended in November 2005 when he was aged 15.  Between 25 November 2005 and 27 January 2006 he committed a number of offences including ‘enter premises and commit indictable offence’, ‘wilful damage’, ‘threatening violence – discharge firearms or other act’, ‘stealing’, ‘common assault’ and ‘commit public nuisance’, for which he was sentenced to probation and community service orders.  On 9 April 2006, he committed the offence of ‘robbery with actual violence’ for which he was sentenced to 12 months’ detention, suspended, to be served by a conditional release order.  He was also sentenced to 150 hours community service for the offences of ‘wilful damage’ and ‘possess utensils or pipes etc that had been used’, committed on 17 and 20 November 2006.

4.      On 7 November 2007, Mr Saili was sentenced in the Queensland District Court by Senior Judge Trafford-Walker to three years’ imprisonment for the offence of ‘robbery with actual violence’, and six months’ imprisonment for each of ‘break and enter – other specified property’ (two counts), and ‘stealing’, the terms to be served concurrently.  Since Mr Saili had been in custody since 17 February 2007, the Judge decided that he should be released on parole on 17 December 2007.  

5.      By letter dated 21 January 2008, the Department of Immigration and Citizenship (the Department) gave Mr Saili a formal warning that any further criminal convictions could result in consideration being given to the cancellation of his visa.

6.      On 23 August 2008, Mr Saili was charged following a violent assault on another person when Mr Saili was intoxicated, his parole was suspended and he was taken back into custody.  On 16 October 2009, he was sentenced in the Queensland District Court by Judge Devereaux to 12 months’ imprisonment for the offence of ‘unlawful wounding’.  His previous parole was thereby automatically cancelled and the 12‑month sentence was cumulative with the three years’ imprisonment to which he had been sentenced on 7 November 2007.

7.      By undated letter, receipt of which was acknowledged by Mr Saili on 21 September 2010, the Department notified Mr Saili that his visa had been cancelled.  He was provided with a Statement of Reasons for this decision dated 20 September 2010.  On 24 September 2010, Mr Saili applied to the Tribunal for a review of this decision. 

8.      Mr Saili was released from prison on 22 September 2010 and immediately taken into immigration detention.  He is currently being held in Villawood Immigration Detention Centre.

9.      In addition to the documents provided by the Department, the Tribunal received letters of support for Mr Saili from his mother, Avarua Saili; his aunty and uncle; Pastor Louis Epa and Caroline Epa; his uncle Rarotoga Tevita; his uncle Peter Saili; his girlfriend, Janine Tipu-Smith; his cousins Alvin Samau, Rachel Tani, David Purcell, Anthea Fidow, Judith Samau and Halafili Tevita; family member Maresa Ualesi and family friend Koleta Galumalemana.  In addition to Mr Saili, his mother Mrs Saili and aunty Mrs Epa gave evidence in person at the hearing, and his uncles Mr Tevita and Mr Peter Saili and girlfriend Ms Tipu-Smith gave evidence by telephone.

RELEVANT LAW AND POLICY

10. Section 501(2) of the Migration Act1958 (Cth) (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”. Section 501(6) 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.

11.     Mr Saili has been sentenced to terms of imprisonment of 12 months or more on two occasions.  Thus, he does not pass the character test.

12.     It was therefore open to the Minister to cancel Mr Saili’s visa.  In exercising this discretion, the decision-maker must apply Direction [no. 41] - Visa Refusal and Cancellation under section 501 of the Act (Direction No 41).  Direction No 41 contains 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.

13.     The primary considerations in Direction No 41 are set out in paragraph 10(1):

10.The primary considerations

(1)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).

14.     These considerations are elaborated on by a range of factors to which regard must be had.  There are also a number of ‘other’ considerations that, where relevant, must be taken into account but, generally, in accordance with Direction No 41 paragraph 11(2), they should be given less weight than the ‘primary’ considerations.  Those ‘other’ considerations are discussed below.

primary considerations

15.     The ‘primary’ considerations relevant in Mr Saili’s case are the protection of the Australian community, the fact that he was a minor when he began living in Australia, and the length of time that he was ordinarily resident in Australia prior to engaging in criminal activity.  These considerations are addressed below.

the protection of the australian community

16.     Direction No 41 identifies two factors relevant to this consideration: the seriousness and nature of the relevant conduct, and the risk that the conduct may be repeated.

The seriousness of the conduct

17.     With regard to the seriousness of Mr Saili’s conduct, the Tribunal notes that paragraph 10.1.1(1) states:

Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community.

18.     Examples of offences and conduct that are considered serious are listed in paragraph 10.1.1(2) and include offences involving violence such as assault and robbery, which are offences for which Mr Saili has been convicted.  Paragraph 10.1.1(3) states that “The sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community”, and regard must be had to the number and nature of offences, the period between offences and the time elapsed since the most recent offence.  Among the factors to be considered pursuant to paragraph 10.1.1(4) are any judicial comments made about the person, parole assessments and any relevant mitigating factors.

19.     Mr Saili has been convicted of a number of serious offences involving violence in a period of less than three years.  On 9 April 2006, he committed the offence ‘robbery with actual violence’ for which he received a 12‑month suspended sentence to be served by a conditional release order, on 17 February 2007 he was arrested and detained in respect of the violent robbery of a bus driver for which he was sentenced (on 7 November 2007) to three years’ imprisonment, and on 23 August 2008 he was arrested, detained and subsequently convicted of ‘unlawful wounding’ following a violent assault when he was intoxicated, and for which he was sentenced (on 16 October 2009) to 12 months’ imprisonment. 

20.     I have read the transcript of the judicial comments made by Senior Judge Trafford-Walker when sentencing Mr Saili in respect of the second serious offence on 7 November 2007.  The Judge asked Mr Saili what he considered “the court should do with someone that causes injury like that”.  Mr Saili responded “Whatever is fair, your Honour.”

21.     In his judicial comments in sentencing Mr Saili on 16 October 2009, Judge Devereaux noted he had been told that Mr Saili committed the robbery in February 2007 with two others, including his younger brother, and that the three of them “bashed the bus driver to take the money”.  It was in respect of this offence that Mr Saili was on parole at the time he committed the violent assault on a man he had never previously met on 23 August 2008.  The Judge commented that Mr Saili was intoxicated at the time.  He described Mr Saili’s involvement as follows: “You immediately, upon your brother wounding the complainant, attacked the complainant dragging him to the ground, and your brother then punched him”.  However, the Judge also noted that Mr Saili had been a “model prisoner” and referred to a report of a panel which had approved Mr Saili’s privileges being upgraded. The report stated that Mr Saili showed “a high level of courtesy and respect when interacting with staff, and importantly this, that you are consistent in your ability to self-regulate and comply with the rules and procedures”.

22.     As to any mitigating factors relevant to Mr Saili’s criminal conduct, I note he stated in a letter to the Department dated 5 February 2010 that when he moved to Australia in 2000 with his mother and younger brother, his greater responsibilities led to confusion and anger and resulted in crime and insubordination to escape the reality.  The oral evidence of Mr Saili’s uncle, Rarotoga Tevita, was that Mr Saili lacked a male role model in his life as a result of his parents having separated and his father remaining in New Zealand.  Mr Saili said he has not seen his father since leaving New Zealand and his last contact with him was in 2003 when his father phoned him to wish him happy birthday but did so on the wrong day.

The risk that the conduct may be repeated

23.     With regard to the risk that the conduct may be repeated, paragraph 10.1.2 of Direction No 41 requires that consideration be given to Mr Saili’s previous general conduct and total criminal history and, in particular, to any recent history of convictions, evidence of rehabilitation and evidence as to whether he has breached any judicial orders including bail and parole orders. 

24.     I note that the second serious offence involving violence in respect of which Mr Saili was arrested and detained on 17 February 2007 was committed in breach of the conditional release order in respect of the first serious offence, and the third serious offence was committed while Mr Saili was on parole in respect of the second serious offence.

25.     I have referred above to the comments made by Judge Devereaux about Mr Saili having been a model prisoner and I assume that when he was released on 22 September 2010, this was presumably on parole (notwithstanding that he was taken immediately into immigration detention), before the end of his cumulative sentences of four years which would have ended on 18 February 2011.  However, I also note the report dated 29 January 2010 prepared for the Department by the ‘Manager Offender Management’ of Borallon Correctional Centre at Ipswich, Queensland, which shows that Mr Saili had two recent ‘major breaches’, one dated 9 November 2009 for “acting contrary to the good order and security of the centre” for which he lost all privileges for five days, and the other dated 23 January 2010 for “fighting with another offender within the visits area”.  His behaviour within the centre was otherwise “of a satisfactory standard”. 

26.     The report records that Mr Saili had at that time completed the following courses:

·Techniques to Produce Drawings – January 2007

·First Aid – October 2007

·Work Preparation – October 2008

·Certificate 1 in Construction – May/June 2009

27.     Mr Saili also told me that because he was expelled from school and missed a lot of education, he completed a literacy and numeracy course in 2008, in the following year he completed his Year 10 certificate, and (in November 2009) he commenced a Tertiary Preparation Program (TPP) at the University of Southern Queensland (USQ).  His academic record for the TPP shows that he has now successfully completed four subjects: Orientation to Tertiary Study – Pass, Mathematics TPP Level A – Distinction, and Studying to Succeed – Credit, Mathematics TPP Level B – Distinction, and that he is currently enrolled in Mathematics TPP Level C.  Mr Saili said he has two more assignments to complete in order to finish the program and that he has already been guaranteed entry into the Associate Degree in Engineering program at USQ commencing in 2011. 

28.     Mr Saili is justifiably proud of his achievement and said that he has assimilated the university culture and it has changed his life.  He hopes such a degree will help him find a career in the field of design and construction.  If he is released into the community, he will return home to live with his mother and brother while he continues his studies.

29.     Mr Saili told me how when he and his mother and brother arrived from New Zealand, they at first lived with his aunty in Campbelltown.  His mother got a job with Centrelink, initially in Campbelltown, then in Fairfield and, five years ago, on the Gold Coast.  Mr Saili said he was expelled from school at the age of 13 for truancy and sent to a special behaviour school. 

30.     His mother, Mrs Saili, said she moved with her sons to Australia to give them greater opportunities and because of personal problems in her relationship with her husband.  She came to Australia believing her husband would follow later, but he did not do so and has since remarried.  Mrs Saili moved to the Gold Coast to get a new start after problems with her son in Campbelltown but he soon started getting into trouble again and “things went from bad to worse”.  Notwithstanding this, she has “always been there for him”, visiting him in prison and, now that he is in Villawood, also visiting him there on a regular basis.  Mrs Saili said that her younger son looks up to his brother and has been affected by his brother’s imprisonment.  Even though her younger son is very bright, he did not finish school and, having had a job for a while, he is now unemployed and looking for work.

31.     Mr Saili said his recent time in prison has given him a lot to think about.  He has realised that if he continues on the same path, he will be in prison on and off for the rest of his life.  So he has decided to change and has tried to do so through pursuing his education.  He wants to put the past behind him and succeeding in his studies is also a way of proving to his family that he can achieve and showing that he can give back.  He has lost all his friends while he has been in prison and hopes to make new friends in the course of university study.  Mrs Saili said most of her son’s friends have “grown up” and some now have families of their own.

32.     Mrs Saili said she hopes her son has learned his lesson and seen the error of his ways and the wasted opportunities.  He is basically a nice person and she believes he has “come a long way”.  If he puts his mind to something, like his tertiary education, she believes he can do it.  He now takes full responsibility for his crimes and has spoken about the people he has hurt and about moving forward with his life.  Mrs Saili’s sister, Caroline Epa, noted that her nephew is not a good communicator.  He has a lot of issues to deal with, holds these inside and does not open up to many people.  She said he has matured, but she holds grave concerns if he has to move to New Zealand.

33.     Mr Saili said he regrets his past actions and feels bad about what he did.  His family who gave evidence all spoke of his being remorseful.  Mr Saili acknowledged that the Australian community is justified in being concerned about him because of his past behaviour.  He agreed that he has an “angry temper” but said that he has not been referred by the courts or ‘correctional services’ for anger management.  I asked Mr Saili about the two recent breaches referred to in the report from Borallon Correctional Centre.  He said the first incident on 9 November 2009 arose because he had an ongoing toothache and was sleep deprived.  There had been a delay in his seeing a dentist and “anger kicked in” and he “tried to take a short cut” to see the dentist.  The other incident on 23 January 2010 involved his fighting with another inmate.  He said the atmosphere in prison can be very tense and inmates get agitated.  I asked Mr Saili if his problem with anger indicated that he would be a risk to the Australian community.  He indicated that he would only hit back if he was provoked by someone hitting him.

34.     I have no doubt that Mr Saili has matured, and has taken a significant step forward in pursuing his education, in which his achievement is commendable.  Nevertheless, in terms of his rehabilitation, I am concerned about his anger management, that this seems to be an ongoing problem if he is provoked, and that he has not foreseen the need to seek professional help to assist him in dealing with this.  While, undoubtedly, Mr Saili has given thought to his future, I am not satisfied that he has achieved the necessary insight into the stimulus for his past behaviour or has taken sufficient active steps to address this.  In my view, given his past history of violence, he still poses a potential risk to the Australian community by reason of his lack of control in provocative situations and his capacity to react with violence.

35.     Having considered the seriousness and violent nature of some of Mr Saili’s past criminal conduct and the risk that he may still react with violence if provoked, the first primary consideration of the protection of the Australian community favours the cancellation of Mr Saili’s visa.

Whether a Minor on Beginning to Live in Australia

36.     The second primary consideration relevant in Mr Saili’s case relates to his being a minor when he first commenced residence in Australia.  Direction No 41, paragraph 10.2(1) states:

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.

37.     Mr Saili arrived with his mother and younger brother and began living in Australia in May 2000, when he was aged 10 years and five months.  He has not returned to New Zealand since and has now lived in Australia for 10 years.  Mr Saili’s evidence is that his close family are in Australia and that although he has many “relatives” in New Zealand, he has no real connection with any of them.  He has not seen his father since he left New Zealand in 2000 and has had no contact with him since 2003 when his father phoned to wish him happy birthday but on the wrong day.  By contrast, the evidence of Mrs Saili, her sister Mrs Epa, their brother, Mr Tevita, and Mr Saili’s cousins living in Australia who have provided letters in support, indicates that they and their families maintain close ties in Australia and are all supportive of one another. 

38.     Thus, I am satisfied that Mr Saili has close ties to the Australian community as a result of his having lived here for the past 10 years and because of the presence of his family here.  This primary consideration therefore weighs against cancellation of Mr Saili’s visa, although I agree with the Minister’s submission that, in the circumstances of this case, the protection of the Australian community carries significantly greater weight.

Length of Time Ordinarily Resident

39.     The third primary consideration relevant in Mr Saili’s case - the length of time he has been ordinarily resident in Australia – is further explained in paragraph 10.3(1) of Direction No 41.  This states that “more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character”. 

40.     Mr Saili first offended in November 2005 after he had been resident in Australia for five and a half years, and he was charged with a series of offences in the following months and more serious offences thereafter.  I also note that he was expelled from school for truancy in Year 8 at the age of 13 and was sent to a special behaviour school.  It was to make a new start that his mother moved the family to Queensland in about 2005, a move that was unsuccessful in terms of bringing about a change in Mr Saili’s behaviour.

41.     Because of the relatively short period before Mr Saili began ‘getting into trouble’ after arriving in Australia, this consideration should not be treated as a consideration favourable to Mr Saili.  Rather it should be regarded as a neutral factor: Re Puafisi and Minister for Immigration and Citizenship [2009] AATA 689, at [39] to [41].

OTHER CONSIDERATIONS

42.     As noted above, Direction No 41 states that ‘other’ considerations, where relevant, must be taken into account but, generally, should be given less weight than ‘primary’ considerations.  Relevant ‘other’ considerations in Mr Saili’s case specifically referred to in the Direction are his family ties and the nature and extent of his relationships with those in the Australian community, his age, his health, his links with New Zealand, the hardship that may be experienced by both Mr Saili and his immediate family members in Australia, his level of education, and whether he has been formally warned in the past that his visa might be cancelled because of his criminal conduct.

43.     The oral evidence at the hearing and the letters of support from Mr Saili’s family members clearly shows that Mr Saili has strong family ties in Australia.  In particular, Mr Saili has a close and loving relationship with his mother and younger brother.  Mr Saili’s and his mother’s evidence indicates that his mother has supported Mr Saili through the various court proceedings in which he has been involved, has visited him in prison and now in immigration detention, and has given him both emotional and financial support as and when he has needed this.  She has offered to provide further financial support for him for the first year of his proposed university study.  Their evidence indicates that if Mr Saili is returned to New Zealand this will cause both of them significant hardship in terms of emotional and financial stress by reason of their separation. 

44.     However, while Mr Saili has had very little contact with the members of his extended family in New Zealand in recent years, except when they have visited his mother in Australia, it seems likely that some support may be available to him from his family in New Zealand by reason of their Samoan cultural background.  This was apparent from the expressions of family responsibility in the evidence provided in support of Mr Saili.  I also note Mr Peter Saili’s oral evidence that Mr Saili’s father had asked his brother to visit Mr Saili in Villawood, which he had done.  At the very least, this indicates some fatherly interest in his son’s dilemma.

45.     The evidence indicates that Mr Saili has a strong relationship with his girlfriend of four years, Ms Tipu-Smith, who has also supported him while he has been in prison and detention.  Their evidence indicates they have discussed the possibility of Mr Saili returning to New Zealand and what the consequences of this would be for their relationship.  Ms Tipu-Smith, who is also a New Zealand citizen, said she would consider accompanying Mr Saili to New Zealand.  They have discussed his plans which are that he would enrol in a similar tertiary program in engineering at the University of Canterbury (Canterbury) in Christchurch.  Mr Saili said he has applied for admission to Canterbury but will need to wait for his final grade for the Tertiary Preparation Program he has completed at USQ in order to obtain recognition of his studies and be admitted to Canterbury.  Mr Saili said he does not want to return to Auckland where, it seems, his father lives.  He would hope to be able to live on campus in Christchurch for his first year of study during which his mother has agreed to support him financially.  He will also try and obtain part-time employment, even if necessary in a café, to finance his studies.  He said “it will be a struggle” but he hopes, nevertheless, to manage.

46.     I note that Mr Saili is young – not yet 21 years of age, and, apparently, strong and healthy.  In my view, given his determination to pursue his tertiary education, provided he can avoid the problems of his own making that have dogged him in recent years, there is no reason why he cannot succeed in his chosen course.  While it will be more difficult to maintain the close relationship he has with his mother and brother and the rest of his family in Australia, there is no reason for them not being able to maintain contact by telephone and email and to visit him from time to time in New Zealand from where their family emanates.

47.     Finally, I note that Mr Saili received a formal warning from the Department by letter dated 21 January 2008.  At that time, he was 18 years old and he said he did not really understand the warning and certainly did not take sufficient notice of it.

48.     Weighing up the relevant ‘primary considerations’, I am satisfied that the primary consideration of the protection of the Australian community strongly favours the cancellation of Mr Saili’s visa by reason of the serious violent crimes he has committed and the risk that he may again be involved in violent behaviour as a result of his not having adequately addressed problems of anger management.  While the fact that he began living in Australia as a minor favours his visa not being cancelled, with the length of time between his becoming resident in Australia and his first misconduct being a neutral factor, these considerations do not in this instance weigh heavily when the protection of the Australian community is considered. 

49.     With regard to the ‘other considerations’, I accept that Mr Saili’s return to New Zealand will cause hardship to Mr Saili, his mother and his brother, who have a close and loving relationship.  Nevertheless, there is no reason why they should not maintain regular contact and it is always open to his mother and brother to spend time with him in New Zealand.  Furthermore, it is likely that Mr Saili will have at least some limited support there from his extended family, and he will be able to pursue his goal of tertiary education there in the same way that he could in Australia. 

50.     While I am satisfied that the decision to cancel Mr Saili’s visa is warranted, I commend the steps he is taking towards rehabilitation and hope he will take further steps to address outstanding issues with a view to his ultimately achieving his goals.

CONCLUSION

51.     The decision under review is affirmed.

I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President

Signed: .....................[sgd].......................................................
  A Veness, Associate

Date of Hearing  24 November 2010
Date of Decision  1 December 2010
Applicant representative           Self-represented
Respondent representative      Ms E Baggett, DLA Phillips Fox