SONNY NAEA and MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2013] AATA 152
•20 March 2013
[2013] AATA 152
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/0260
Re
SONNY NAEA
APPLICANT
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
March 20 March 2013 Place Brisbane The Tribunal affirms the decision under review.
.........................[Sgd]...............................................
Mr R G Kenny, Senior Member
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – Class TY Subclass 444 Special Category (Temporary) Visa – Cancellation – New Zealand citizen – Entry to Australia at age 10 years – Substantial criminal record of serious offences and failure to comply with court orders – Failure to pass character test – Discretion to cancel visa – Relevant considerations – On balance, primary and other considerations favour cancellation of visa – Preferable decision is that visa be cancelled – Decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 499, 500, 501
CASES
Mordechai v Minister for Immigration and Citizenship (2011) 126 ALD 454
Re Tucker and Minister for Immigration and Citizenship [2010] AATA 559
SECONDARY MATERIALS
Direction [No. 55] – Visa refusal and cancellation under s 501
REASONS FOR DECISION
Mr R G Kenny, Senior Member
THE APPLICATION
On 16 July 2012, Sonny Naea’s Class TY Subclass 444 Special Category (Temporary) Visa (“the visa”) was cancelled by a delegate of the Minister for Immigration and Citizenship (“the respondent”) under s 501(2) of the Migration Act 1958 (Cth) (“the Act”). Mr Naea has applied for review of that decision.
ISSUES AND LEGISLATION
Under s 501(2) of the Act:
The Minister may cancel a visa that has been granted to a person 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 the person passes the character test.
The “character test” is defined in s 501(6) of the Act which specifies various alternative circumstances in which a person does not pass the character test within the meaning of that section. In the present case, the relevant circumstance is that specified in s 501(6)(a) of the Act, that Mr Naea “has a substantial criminal record”. Under s 501(7) of the Act, five alternative circumstances are specified in which, for the character test, a person has a substantial criminal record. In the present case, the relevant circumstance is that specified in s 501(7)(c) of the Act, namely, “the person has been sentenced to a term of imprisonment of 12 months or more”.
It is not disputed that Mr Naea has been sentenced to a term of imprisonment of more than 12 months or that he has a substantial criminal record under ss 501(6) and (7) of the Act. The issue is whether the discretion in s 501(2) of the Act should be exercised to cancel the visa.
The Minister issued Direction No. 55[1] (“the Direction”) under s 499 of the Act. It binds those, including the Tribunal,[2] making decisions under s 501 of the Act.
[1] Direction No.55 – Visa refusal and cancellation under s501, dated 25 July 2012, commenced on 1 September 2012.
[2] See s 499(2A) of the Act and the term “decision-maker” in Annex B of the Direction.
In the Preamble to the Direction, the objective of the Act is stated to be the regulation, in the national interest, of the coming into, and presence in, Australia of non-citizens.[3] It provides that, if the decision-maker reasonably suspects that the person does not pass the character test and the person does not satisfy the decision-maker that he/she passes the character test, “the decision-maker must consider whether to exercise the discretion to cancel the visa given the specific circumstances of the case”.[4] The Preamble also provides “General Guidance”, including the following:[5]
The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
[3] See cl 6.1(1) of the Direction. A “non-citizen” is defined in s 5 of the Act as a person who is not an Australian citizen.
[4] See cl 6.1(2) of the Direction.
[5] See cl 6.2 of the Direction.
The Preamble to the Direction then sets out six “Principles” which must inform the exercise of the discretion whether to cancel the visa:[6]
Principles
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern[7] are allowed to enter and/or remain in Australia. 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) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(4) Australia has a low 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. However, 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) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(6) The length of time a non-citizen has been making a positive contribution to the 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.
[6] See cl 6.3 and cl 7 of the Direction.
[7] The term “character concern” is defined in s 5C of the Act and Annex B of the Direction.
The Direction provides that “primary” and “other” considerations must be taken into account where relevant; that “both primary and other considerations may weigh in favour of, or against, refusal or cancellation of the visa”; that “primary considerations should generally be given greater weight than the other considerations”; and that “one or more primary considerations may outweigh other primary considerations”.[8]
[8] See cl 8 of the Direction.
Three of the four listed primary considerations in cl 9 of the Direction have been raised in this matter:
(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; and ….
Primary consideration (d) is concerned with whether Australia has international non-refoulement obligations to the person and is not relevant in Mr Naea’s case.
Other considerations which must be taken into account in deciding whether to cancel a visa include the following:[9]
[9] See cl 10(1) of the Direction.
(a)Effect of cancellation of the person’s visa on the person’s immediate family in Australia, if those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely;
(b)Impact on Australian business interests;
(c)Impact of a decision not to cancel a visa on members of the Australian community, including victims of the person’s criminal behaviour, and the family members of the victim or victims where that information is available and the person being considered for visa cancellation has been afforded procedural fairness;
(d)The extent of any impediments that 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:
(i) The person’s age and health;
(ii) Whether there are substantial language or cultural barriers; and
(iii) Any social, medical and/or economic support available to them in that country.
EVIDENCE
Criminal history
A National Police Certificate,[10] dated 21 December 2011 from the Australian Federal Police, set out Mr Naea’s history of involvement with the Queensland District Court as follows:
[10] See Exhibit 1, G-document 8, folios 53-55.
Court Date
Offence
Offence Date
Penalty
Beenleigh District Court
14 September 2010Robbery with actual violence –wound or use personal violence
Robbery with actual violence – armed / in company / wounded / used personal violence
8 July 2009
11 November 2009
On both charges: Imprisonment 2 yrs 10 months Assault occasioning bodily harm
Assault occasioning bodily harm [11]
4 November 2009
11 December 2009
On both charges: Imprisonment 2 yrs 6 months Beenleigh District Court
31 October 2011Robbery with actual violence – in company / used personal violence (2 charges) 18 December 2010
28 December 2010On both charges: Imprisonment 3 yrs concurrent and cumulative [11] The respondent submitted and Mr Naea agreed that this offence was assault occasioning bodily harm in company.
In addition, on 28 August 2009, Mr Naea was convicted in the Holland Park Magistrates Court of exceeding the speed limit and of driving a motor vehicle without a driver licence. On 14 July 2009, Mr Naea was issued with an exclusion notice for a period of 10 days from the South Bank Parklands due to public nuisance. While on parole, Mr Naea failed to report to his parole officer on 21 and 25 October 2010; failed to complete an Anger Management Workbook as required under his parole conditions on 25 October 2010, 28 October 2010, 4 November 2010 and 2 December 2010; and was given an infringement notice for fare evasion while travelling by train on 24 October 2010.[12] Because of his breaches of parole conditions, Mr Naea was issued with a formal censure on 4 November 2010.[13]
[12] See Exhibit 2, folios 45-48 and 63-64.
[13] See Exhibit 2, folio 69.
Mr Naea
Mr Naea was born in New Zealand on 8 April 1992 and is a New Zealand citizen. He came to Australia for nine months in 1993 and for ten months in 1994. He and his parents migrated to Australia on 25 April 2002 and he has been continuously in Australia since then. In addition to his parents, other relatives of Mr Naea in Australia are his three younger siblings, two grandparents, eight uncles/aunts and several cousins. He also has an aunt in New Zealand. He described a good relationship with his immediate and extended family in Australia including his New Zealand aunt though he has not been in contact with her in recent times.
In documents completed by Mr Naea and in his evidence, he made frequent reference to a child, “A”, who was born while Mr Naea has been in prison. Mr Naea believes that he is the father of A and indicated that A would have an important role in his integrating into the Australian community. He conceded that he had not seen or had physical contact with A, but was hoping to re-establish his relationship with A’s mother, Ms M, and develop a strong father/son relationship with A. He was aware that Ms M had denied their relationship, his paternity of A and having been in receipt of financial support from Mr Naea’s parents while he has been in prison. He said that these were false denials and that he was unable to set things right because of his imprisonment.
Mr Naea called no witnesses to support his application. He said that he had received information from the respondent about the need to give timely notice of any supportive statements or witnesses he wished to rely on at the hearing. He had received this only three or four business days before the hearing and this contributed to the absence of supportive statements and witnesses. However, he agreed that he had been advised of this requirement some weeks before the hearing in a telephone directions hearing with the Tribunal.[14]
[14] A letter from Mr Naea’s sister was provided to the Tribunal and the respondent but regard was not had to this because of the terms of s 500(6J) and (8) of the Act: see Mordechai v Minister for Immigration and Citizenship (2011) 126 ALD 445 at 462-463 per Bennett J.
Mr Naea was in Year 12 at school when he was first imprisoned and his only employment before then was on a part-time basis with a fast food outlet. Mr Naea said that he had spoken with people from BoysTown through his prison chaplain and at career expos at the prison. He was hopeful that this would provide him with assistance to obtain employment on release from prison. Mr Naea agreed that there had been very few visitations by his parents while he has been at Woodford prison and said that this was due to the travel involved. He had been living with his parents and siblings before he committed his offences and said that he would return to live with them if allowed to remain in Australia.
In cross examination, Mr Naea was referred to each of his offences. He agreed that he committed the traffic offences which were dealt with in the Magistrates Court on 28 August 2009 and said that he does not and has not ever held a driver licence. He agreed that he had been on parole at the time of his exclusion from South Bank and when he committed the fare evasion offence. He also agreed that he committed breaches of parole by not complying with parole requirements in October, November and December 2010.[15] Mr Naea had been aware of his obligations under his parole order because these had been fully explained to him. He agreed that he committed the offences dealt with in the District Court except for the charge of robbery with actual violence on 8 July 2009. He denied having anything to do with that incident which involved an assault upon and stealing money from a man who was delivering a pizza order. Mr Naea agreed that he had pleaded guilty to the offence and said that this was because he believed that he would be convicted anyway. He said that he was advised to plead guilty by a duty lawyer.
[15] See para 13 (above).
Three of Mr Naea’s assault victims were taxi drivers. In explaining his conduct, Mr Naea advised police after the robbery in December 2010 that his mother had been hit by a taxi in 2009 and that, as a result, both of her legs were broken. He told police that he thought of the incident whenever he saw a taxi driver.[16] This was not a matter referred to by the Judge in sentencing Mr Naea.
[16] See Exhibit 2, folios 27-28.
Mr Naea agreed that he had been affected by alcohol when some of his offences were committed. He also agreed that he had not completed the “Getting Smart” course in prison which was designed to assist prisoners to better deal with alcohol consumption. He said that he had been on the waiting list for the course but that priority is given to those nearing release on parole. He agreed that he is currently on parole but under immigration detention pending the outcome of his visa cancellation proceedings. He agreed that, if he is allowed to stay in Australia, his parole order will be revoked and he will return to prison.
In a statement, dated 21 May 2012,[17] Mr Naea denied any incidents or breaches while he has been in custody. While accepting that he had been described as “disruptive”, he denied that the description applied to him. Mr Naea completed various courses while in prison and agreed that he had been removed from an automotive course for disruptive behaviour. However, he said that this was because he did not see “eye to eye” with the course co-ordinator. Incident reports were completed in relation to Mr Naea’s behaviour in prison. On 21 February 2011 and 22 May 2012, he was mentioned in relation to an assault on another prisoner. Mr Naea admitted that, on 4 March 2011, he assaulted another prisoner after the latter was observed shaking the hand of a correctional officer.
[17] See Exhibit 1, G-document 32, folios 131-132.
Mr Naea said that his deportation would have a great emotional impact on his family. He also said that, if deported, he would live with his aunt in New Zealand. He said that he had undertaken part of a hair-dressing course at TAFE before he was imprisoned and that preliminary arrangements had been made for him to get work in New Zealand with a family friend who has a hair-dressing business.
Ms M
A record of interview, dated 27 February 2012,[18] with Ms M was in evidence. Therein, she advised that she was only ever a friend of Mr Naea and had not lived in a relationship with him. She had been in a relationship with another man and was uncertain which of the two men was A’s father. She stated that she had no intention of entering a relationship with Mr Naea if he remained in Australia, that she did not want A to have an association with him and had no intention of ever moving to New Zealand. She denied any bond existed between A and Mr Naea and said that she would not rely on Mr Naea for any financial support for A.
[18] See Exhibit 1, G-document 28, folios 122-125.
Offences and sentencing remarks
The robbery offences dealt with in the District Court on 14 September 2010 involved an assault on and stealing from a pizza delivery driver, an assault on a person at a fast food outlet, an assault on and stealing from a student at a bus stop and the assault on and stealing from a taxi driver. All but the assault at the fast food outlet occurred at night. Though sentenced to imprisonment, Mr Naea was granted immediate parole. In evidence were the remarks of Judge Dearden of the Queensland District Court when sentencing Mr Naea on that date:[19]
[Y]ou’ve pleaded guilty today to an indictment which alleges a count of assault occasioning bodily harm and a count of assault occasioning bodily harm in company. Those offences occurred on the 4th of November and the 11th of December 2009 and another indictment which was transferred from Brisbane which was a count of robbery with personal violence on the 8th of July 2009 and robbery in company with personal violence which occurred on the 11th of November 2009.
All of these matters are serious but of course the two robberies, one with personal violence and one in company with personal violence, are the most serious.
[19] See Exhibit 1, G-document 7, folios 46-52, esp. folios 47 and 50.
The robbery offences dealt with on 31 October 2010 were committed while Mr Naea was on parole and involved two assaults and stealing from taxi drivers. Mr Naea was sentenced to three years imprisonment for each offence to be served concurrently but cumulative to the term previously imposed. The Judge set a parole release eligibility date after 40% of his sentence would be served on 30 July 2012. His Honour described the opportunity to get parole as “a pretty tough one” because he would need to persuade the Parole Board that he should be released into the community. The Judge made the following remarks when sentencing Mr Naea:[20]
[Y]ou’ve pleaded guilty today to … two counts, in fact, of robbery in company with personal violence. Both of these were on taxi drivers; both of them, it seems, occurred when you were affected by alcohol, and what I just can’t get my head around, I guess, is the fact that they occurred within three months of me releasing you last time.
You are in the unfortunate position of having committed both of these offences on parole, and on parole, of course, for similar offences, two of them previously, one of them on a taxi driver as well as counts of assault occasioning bodily harm. As a result, you have served, and you’ll be required to serve, effectively, the whole of your original sentence.
[20] See Exhibit 1, G-document 6, folios 37-45, esp. folios 38 and 40.
In relation to the assault on the pizza delivery man, Mr Naea’s record of interview with the police indicates that Mr Naea agreed that he committed the offence and that he punched the driver five to six times but not in order to steal from him. He said that a bag containing money fell to the ground as the delivery man drove off. The police record also noted that fingerprints were obtained from the man’s van, that they did not match any on their files and that Mr Naea was implicated when his fingerprints were taken in December 2009 in relation to another robbery and were found to match those on the van.
Prison report
On 24 April 2012, the General Manager of Woodford Correctional Centre wrote to the respondent about Mr Naea’s conduct in prison,[21] stating that Mr Naea had been at Woodford since March 2011 and was domiciled in the secure area of the centre. Mr Naea was described as predominantly behaving in a “disruptive and argumentative manner” with “limited interaction with staff” though it was noted that he incurred no custodial breaches and had returned clear results in urine tests. The manager referred to the courses which Mr Naea had undertaken, noting that he had been removed from a course “due to behaviour that was inappropriate for the workshop environment (disruptive behaviour)”. The manager also noted that Mr Naea was given a second chance by the training officer but was again removed because of his unsafe behaviour. Mr Naea was employed in the centre “before being terminated after a number of warnings for displaying unacceptable behaviour”.
[21] See Exhibit 1, G-document 14, folios 68-69.
Parole Board
On 5 December 2012, the Queensland Regional Parole Board completed a report in response to Mr Naea’s application for parole. It referred to a wide range of matters including the circumstances of Mr Naea’s offences and the following in relation to Mr Naea’s behaviour in prison:[22]
Prisoner Naea’s behaviour and attitude has been reported to have been of an unacceptable standard with a large number of case notes indicating his tendency to display an immature attitude and be easily distracted.
The latest summary report completed on 24 November 2012 summarises:
“The prisoner has had numerous case notes in relation to his behaviour, prisoner is a young prisoner who is very easily led by more disruptive prisoners in the unit, the prisoner does have issues in organising and taking responsibility for himself. The prisoner is slow to get out of his cell at unlock and has had numerous warnings in regard to standing by his cell at lock-away. The prisoner always has an excuse for his actions or blames others for his actions.
Prisoner needs to control his impulses and start adopting a more mature approach to his behaviour in the unit. Prisoner needs to take more responsibility for his actions and improve his ability to comply with unit rules and officer directions.”
During this period of imprisonment to date, prisoner Naea has incurred four adverse incidents, three of which relate to assault of other prisoners. However it is noted that no further action was taken in any of these instances.
[22] See Exhibit 2, folios 52-60, esp. folio 56.
The Parole Board identified the following positive and negative factors in considering Mr Naea’s parole:[23]
[23] See Exhibit 2, folios 52-60, esp. folio 59.
Positive
·The sentencing court’s early parole eligibility date after serving 9 months of a 3 year sentence.
·The prisoner’s deportation from Australia to New Zealand, resulting in removal from criminal associates.
·The prisoner’s attitude towards deportation is positive.
·The prisoner has accommodation with family in New Zealand.
·The prisoner has an employment offer in New Zealand.
·The prisoner has no custodial breaches of discipline or positive drug tests recorded.
Negative
·The prisoner has the Getting Smart program outstanding.
·The prisoner has negative case notes recorded.
·The prisoner committed further violent offences whilst on parole.
·The prisoner is accommodated in a secure area of the centre.
The Board granted parole on the condition that, if he were not deported from Australia, Mr Naea was to be returned to secure custody forthwith without being released to the community.[24]
[24] See Exhibit 2, folios 52-60, esp. folio 59.
Cancellation warning
On 19 November 2010, the respondent sent to Mr Naea a letter, headed “NOTICE OF INTENTION TO CONSIDER CANCELLATION OF YOUR VISA UNDER SUBSECTION 501(2) OF THE MIGRATION ACT 1958”.[25] This advised him that, because of his substantial criminal record, his visa was to be considered for cancellation with the consequence that he would become an unlawful non-citizen and be subject to immigration detention and deportation from Australia. An Australia Post receipt, dated 24 November 2010, was signed by Naea as acknowledgement of receiving the letter.[26] Mr Naea agreed that he received the letter and was aware of the prospect of his deportation.
[25] See Exhibit 1, G-document 16, folios 89-93.
[26] See Exhibit 1, G-document 17, folio 95.
Rehabilitation
Mr Naea undertook various programs while in prison and obtained certificates in the Food Handler Training Program and in Basic Health Care. Other programs included a course in literacy, numeracy and career preferences pre-training; engineering; construction; information technology; and CPR. He undertook an automotive course but was removed by the co-ordinator for disruptive behaviour.
SUBMISSIONS
Mr Naea submitted that he was no longer a threat to the Australia community as he had changed while he has been in prison. He believed that he would have difficulty integrating into the New Zealand way of life because he had lived in Australia for most of his life including most of his school years. His major concern was that he be given the opportunity to establish a father/son relationship with A. He submitted that he would have difficulty living in New Zealand knowing that his son was in Australia.
For the respondent, Mr David McLaren submitted that Mr Naea did not satisfy the character test in the Act and that the paramount primary consideration in Mr Naea’s case was that relating to the protection of the Australian community. He also submitted that, because of the nature and seriousness of Mr Naea’s offences and the risk of his further offending, the decision to cancel his visa was the correct and preferable decision which should be affirmed.
Mr McLaren submitted that the District Court sentencing remarks reflected the seriousness of the offences committed by Mr Naea. Mr McLaren also submitted that Mr Naea’s denial of involvement in the assault on the pizza delivery man should not be accepted in that he had pleaded guilty and was not linked to the offence until his fingerprints were identified some months later. He submitted that regard should be had to the nature of Mr Naea’s offences in that they were committed in company and against individuals who were in vulnerable situations, such as the three taxi driver victims, the delivery man and the student at a bus stop.
Mr McLaren submitted that there was a high risk that Mr Naea would reoffend if released into the Australian community. He noted that, despite being fully informed of the consequences of breaching parole, he committed breaches by failing to report as required on two occasions in October 2010 and by committing a fare evasion offence on 24 October 2010. He noted that Mr Naea received a formal censure because of his behaviour while on parole on 4 November 2010. He submitted that he had not been a model prisoner and that the only time, since his first conviction, that his potential for appropriate conduct has been tested was when he was released on parole and that he failed to meet that test. Mr McLaren submitted that the seriousness of Mr Naea’s conduct was increased by his willingness to commit some of his offences in company with strangers. He also submitted that, if released into the Australian community, nothing would have changed in that he would be living in the same home environment and have access to the same peer group as before.
As to ties with Australia, Mr McLaren submitted that these were of a limited nature as he was still at school when he committed his first serious offences and had limited employment experience. Even though Mr Naea had spent his formative years in Australia, Mr McLaren submitted that the quality of that contact was severely impeded by his conduct.
Mr McLaren submitted that Mr Naea’s assertions about A should be rejected. He referred to the unequivocal comments made by Ms M in her statement and noted that no evidence was called to support Mr Naea’s contentions that Ms M had visited his parents and obtained financial support from them. In that regard, he submitted that Mr Naea had been made aware of his right to call such evidence or any other supporting evidence as long as it was done in a timely manner.
Mr McLaren conceded that no formal warning about visa cancellation had been given to Mr Naea but he referred to the letter of 19 November 2010 which preceded the second set of offences committed in November 2010. He submitted that this had made Mr Naea aware of the consequences which further offending would have.
Mr McLaren accepted that Mr Naea had undertaken rehabilitation programs in prison but noted that those had not included the Getting Smart program which was relevant on the basis that some of Mr Naea’s offences were committed whilst under the influence of alcohol. He submitted that it was highly likely that Mr Naea would engage in further criminal behaviour. In that regard, he noted that Mr Naea’s offences included non-compliance with his court ordered parole.
Mr McLaren conceded that it was significant that Mr Naea had spent much of his life, including his formative years, in Australia. He also conceded that Mr Naea’s family ties were in Australia rather than in New Zealand but that the seriousness of Mr Naea’s offences as well as the need to protect the Australian community from harm weighed heavily in favour of cancelling his visa. He noted that arrangements had been made for him in New Zealand to live with his aunt and to obtain employment. He also submitted that Mr Naea had no health problems and that he would be able to access comparable social, medical and economic support in New Zealand as would be available in Australia.
CONSIDERATION
Primary consideration (a): Protection of the Australian community
In relation to the first of the primary considerations, the Direction provides at cl 9.1:
9.1 Protection of the Australian community
(1) When considering 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.
9.1.1 The nature and seriousness of the conduct
(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 s501(6)(b) or (d), or is not of good character under s501(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.
9.1.2 The risk to the Australian community should the person commit further offences or engage in other serious conduct
(1) In considering whether the person represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, 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 reoffending; 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).
In light of the Principles in cl 6.3 of the Direction, particularly subclauses (1), (2), (4), (5) and (6) thereof, the factors applicable to Mr Naea in cl 9.1.1 of the Direction are subclauses (a), (b), (d), (e), (f), (g) and (i) as well as those in cl 9.1.2(1)(a) and (b) thereof.
I do not accept Mr Naea’s denial of involvement in the offence involving the pizza delivery man. He pleaded guilty to the offence and made admissions to police about punching the driver five to six times. Also, Mr Naea was not implicated in that robbery until his fingerprints were taken months later in relation to his later robbery and were found to match those on the delivery man’s vehicle.
The sentencing remarks of Judge Dearden concerning Mr Naea’s offences confirm their serious nature, leaving him no option but to impose terms of imprisonment and, indeed, to make the last-imposed term cumulative. Remarks in sentencing about the “pretty tough” task of convincing the Parole Board that he should be released have proved prophetic. The Parole Board decided in December 2012 that Mr Naea could only be released on parole on the condition that he be deported. Failing that, he was to be returned to prison. The seriousness of Mr Naea’s offences is also confirmed in that they all involved physical violence,[27] most of them were carried out in company and the violence offered to the delivery man and the three taxi drivers was to persons in positions of vulnerability, alone and at night, and performing their work.[28] The serious nature of Mr Naea’s offending is compounded by the commission of the offences for which he was first sentenced in a period of only four months and the commission of the other offences only three months later.[29]
[27] See cl 9.1.1(1)(a), (d) and (e) of the Direction.
[28] See cl 9.1.1(1)(b) of the Direction.
[29] See cl 9.1.1(1)(f) and (g) of the Direction
While I accept that Mr Naea was not formally warned about the prospect of deportation if he continued to commit offences, the Direction provides, alternatively, that consideration be given to whether he was made aware, in writing, of the consequences of doing so. I accept the submission of Mr McLaren that the respondent’s Notice of 19 November 2010[30] satisfied that requirement.[31] Mr Naea’s written acknowledgement of the Notice is dated 24 November 2010, which was less than one month before he committed two further robberies. In any event, I note that the Direction provides an absence of a warning is not to be considered in Mr Naea’s favour[32] and, regardless of any warning, the Principles make it clear that there is an expectation that non-citizens will be law-abiding, will respect Australia’s law enforcement framework and will not cause or threaten harm to individuals.[33]
[30] See para 31 (above).
[31] See cl 9.1.1(1)(i) of the Direction.
[32] See cl 9.1.1(1)(i) of the Direction.
[33] See cl 6.3(1) of the Direction.
Mr Naea was under the influence of alcohol when he committed the robberies in December 2010. As I understand it, he has not, as yet, been able to undertake any programs in prison in relation to dealing with problems associated with alcohol usage. The commission of any offence similar to those he has already committed, whether or not under the influence of alcohol, clearly has the potential to do serious harm to individuals in the Australian community. I accept the submission of Mr McLaren that there is a high likelihood of that happening. Of particular significance in that regard is Mr Naea’s non-compliance with his court ordered parole, the obligations of which had been explained to him. His disregard for those obligations was demonstrated in the breach of administrative aspects of parole such as failing to report appropriately and also in evading a fare on a train. While those matters reflected a negative attitude to parole, the major concern is his commission of two further robberies in December 2010, only three months after parole being granted and shortly after being given the notice of possible visa cancellation. In the absence of any independent evidence to the contrary, that disregard by Mr Naea of his responsibilities while on parole point very strongly to his repeating that conduct if he were again released on parole into the Australian community.[34] The likelihood of reoffending is also raised by Mr Naea’s inappropriate conduct while he has been in prison.
[34] See cl 9.1.2(1)(a) and (b) of the Direction.
In accordance with the Principles in cl 6.3[35], cl 9.1.1 and cl 9.1.2 of the Direction, the primary consideration relating to the protection of the Australian community weighs heavily in favour of cancelling Mr Naea’s visa.
[35] In particular, cl 6.3(1), (2), (3) and (5).
Primary consideration (b): Strength, duration and nature of the person’s ties to Australia
In relation to the second of the primary considerations, the Direction provides at cl 9.2:
9.2 Strength, duration and nature of the person’s ties to Australia
(1) Reflecting the principles at 6.3, 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.
Mr Naea stayed in Australia for periods totalling approximately 19 months before migrating here with his family on 25 April 2002 at the age of 10 years. He has been in custody, apart from his short parole period, since 16 December 2009 when he was aged 17 years and 8 months. His time in the Australian community totals approximately 14 months more than his time in New Zealand. Clearly, the period from 2002 until 2009 relates to his more formative years and he may have made some contribution to the Australian community through his schooling and part-time employment with the fast food outlet. However, any positive aspects of that contribution are outweighed by the negative impacts of his record of serious criminal offences which commenced with the robbery of the delivery man in July 2009 when he was aged 17 years and 3 months.
Mr Naea’s immediate and most of his extended family lives in Australia. His evidence is that his parents will provide him with accommodation if he remains in Australia and after he is released from custody. This points to a supportive attitude by them towards him. However, there was no evidence before me from his parents, other members of his family or any persons with an indefinite right to remain in Australia. Mr Naea’s evidence was that he has an aunt in New Zealand and that arrangements have been made for him to stay with her in the event that he returns to New Zealand.
I have noted Mr Naea’s evidence of his belief that A is his son. A’s birth certificate makes no attribution of paternity and it was strongly denied by Ms M. Moreover, Ms M denied any de facto relationship with Mr Naea in the past or in the future. In those circumstances, I am unable to find that Mr Naea is his father. Further, Mr Naea has not seen A, has no relationship with him and, on the basis of Ms M’s statement, will be denied any relationship with him in the future.
In accordance with the Principles in cl 6.3[36] and cl 9.2 of the Direction, I am satisfied that the negative aspects of Mr Naea’s criminal conduct in Australia outweigh any positive contribution he may have made to the Australian community from age 10 to 17 years. However, his ties with his family in Australia weigh against cancellation of his visa.
[36] In particular cls 6.3(4) and (6).
Primary consideration (c): Best interests of minor children in Australia
In relation to the third of the primary considerations, the Direction provides at cl 9.3:
1.3 Best interests of minor children in Australia affected by the decision
(1) Decision-makers must make a determination about whether cancellation is, or is not, in the best interests of the child.
(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to cancel the visa is expected to be made.
(3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4) In considering the best interests of the child, the following factors must be considered where relevant:
(a) The nature and duration of the relationship between the child and the person. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b) The extent to which the person is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c) The impact of the person’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d) The likely effect that any separation from the person would have on the child, taking into account the child's ability to maintain contact in other ways;
(e) Whether there are other persons who already fulfil a parental role in relation to the child;
(f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g) Evidence that the person has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the person’s conduct.
This aspect of the Direction is dealt with above.[37] While A is a minor, I am unable to find that Mr Naea is his father. Clearly, this third primary consideration is not limited to his children. Nevertheless, the evidence before me is that, while Mr Naea knows of the child and believes he is the father, he has had no association with him. On the evidence of Ms M, it is unlikely that he will have an association with him in the future.
[37] See para 52 (above).
I am satisfied that the circumstances of A weigh neutrally in relation to cancellation of Mr Naea’s visa.
Other considerations
A non-exhaustive list of other considerations is provided in cl 10 of the Direction.[38]
[38] See para 11 (above).
One such factor is the effect of visa cancellation on Mr Naea’s immediate family. Mr Naea’s parents, two grandparents and eight uncles and aunts live in Australia. No evidence was provided by them but I accept Mr Naea’s assertion that they would be strongly affected by his visa cancellation. That is not the case with Ms M. It has not been suggested that there would be any impact on Australian business interests if Mr Naea’s visa were cancelled. Similarly, no evidence was before the Tribunal of any impact of a decision on the families of the victims of Mr Naea’s offences. No health concerns have been expressed by Mr Naea and it is not in dispute that there are no language or cultural barriers to Mr Naea returning to New Zealand or that a similar level of social, medical and economic support would be available to him in New Zealand as would be applicable in Australia.
Mr Naea has not lived in New Zealand since he was 10 years old. I accept that he will have difficulties adjusting to life there in the absence of his parents, siblings and other family members in Australia. However, he has an aunt in New Zealand and the evidence is that arrangements have been made for Mr Naea to stay with her if he returns to New Zealand. This will assist him in making adjustments to life in that country, as will the prospects of employment that have been put in place for him. Both of those aspects of his return to New Zealand were commented upon by the Parole Board as was Mr Naea’s positive attitude towards deportation. I am satisfied that there are no barriers to Mr Naea establishing himself in New Zealand and maintaining a basic living standard such as is generally available to New Zealand citizens.
In accordance with the Principles in cl 6.3 and cl 10 of the Direction, the consideration concerning the effect on family members weighs against the cancellation of Mr Naea’s visa. However, in accordance with those provisions, the remainder of the other considerations weigh neutrally in that regard.
CONCLUSION
Having considered the relevant primary considerations and relevant other considerations in this case, the task of the Tribunal is to determine, on the basis of the appropriate weight to be given to each of those considerations, whether those considerations, on balance, favour cancellation of the visa.[39]
[39] See cl 6.1 of the Direction and Re Tucker and Minister for Immigration and Citizenship [2010] AATA 559 at [65].
Of the three relevant primary considerations, I am satisfied that the protection of the Australian community is the most significant in Mr Naea’s case. The serious nature and frequency of his criminal conduct and the likelihood of his re-offending are in conflict with an objective of the Act. That objective is to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by a non-citizen.[40] I am satisfied that the first primary consideration weighs heavily in favour of cancellation of the visa; that the second primary consideration weighs against cancellation of the visa; and that the third primary consideration bears neutrally on the issue. The other considerations weigh neutrally on the issue of cancellation apart from that concerned with the effect on Mr Naea’s family. This factor weighs against cancellation. However, the other considerations carry less weight than the primary considerations.[41] On balance, because of the weight attaching to the first primary consideration, I am satisfied that the cancellation of the visa in this case would accord with the standards, values and expectations of the Australian community. Accordingly, the preferable decision is that Mr Naea’s visa be cancelled pursuant to s 501(2) of the Act.
[40] See cl 6.2 of the Direction.
[41] See cl 8(4) of the Direction.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.
.............................[Sgd).........................................
Associate
Dated 20 March 2013
Date of hearing 14 March 2013 Applicant In person Solicitors for the Respondent Mr David McLaren
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