Tane Wipa and Minister for Immigration and Citizenship
[2012] AATA 125
•28 February 2012
[2012] AATA 125
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/5620
Re
Tane Wipa
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Deputy President P E Hack SC
Date 28 February 2012 Place Brisbane (heard in Mareeba) The decision is affirmed
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Deputy President P E Hack SC
Catchwords
IMMIGRATION AND CITIZENSHIP - Visa refusal and cancellation – criteria – good character – substantial criminal record - character test – other considerations - risk of harm to community from re-offending – decision affirmed
Legislation
Migration Act 1958 (Cth) ss 499, 500(6H), 501(2), 501(6), 501(7)
REASONS FOR DECISION
Deputy President P E Hack SC
28 February 2012
The applicant, Mr Tane Wipa, is a citizen of New Zealand. He arrived in this country in January 1991 when he was four years old. On 7 December 2011 a delegate of the respondent, the Minister for Immigration and Citizenship, decided to cancel Mr Wipa’s visa. The consequence of that decision is that Mr Wipa will be removed to New Zealand.
Mr Wipa seeks a review of the delegate’s decision.
By virtue of s 501(2) of the Migration Act 1958 the Minister may cancel a visa that has been granted to a person 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. A person does not pass the character test in the circumstances listed in s 501(6) of the Act. Those circumstances include, relevantly, where the person “has a substantial criminal record”, an expression defined by s 501(7) of the Act to include the circumstance where the person has been sentenced to a term of imprisonment of 12 months or more.
As will appear Mr Wipa has a substantial criminal record and thus does not pass the character test. It is not in doubt that the discretion to cancel has been enlivened.
Section 499 of the Act permits the Minister to give written directions to a person or body having functions or powers under the Act if the directions are about the performance of those functions or the exercise of those powers. The direction must be complied with.
Direction [41] – Visa refusal and cancellation under s 501 was made by the former Minister on 3 June 2009. Its preamble recites the objective of the Act to regulate, in the national interest, “…the presence in Australia of non-citizens”. The direction continues,
“(2) In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.
(3) The Government is especially mindful to protect the safety of the community’s more vulnerable members, including minors, the elderly and the disabled.”
In the circumstances of this case it is of particular relevance to extract the following paragraphs from the “General Guidance” section of the Direction [41],
“(2) In reaching a decision on whether to refuse or cancel a visa, a decision-maker needs to consider:
(a) the nature if any harm that the person concerned may cause to the Australian community; and
(b) the risk of that harm occurring.
(3) Exercise of the section 501 power must also be considered in the context of a wide range of factors, including whether the person began living in Australia as a minor, the length of time the person has been ordinarily resident in Australia and any relevant international law obligations.
(4) In some circumstances it may be appropriate for the Australian community to accept more risk where the person concerned has, in effect, become part of the Australian community owing to their having spent their formative years, or a major portion of their life, in Australia.”
Part B of Direction [41] “provides direction on the primary and other considerations that are relevant to determining whether it is appropriate in the specific circumstances of the case to exercise the discretion to refuse to grant or cancel the visa”. Those considerations must be taken into account: in every case, so far as the primary considerations are concerned and, where relevant, in the case of other considerations. The primary considerations are:
(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 the person 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, relevantly for present purposes, those arising under the Convention on the Rights of the Child.
Clause 11 of Direction [41] deals with “Other considerations” that may be relevant and, if so, must be “considered” or “taken into account”. But, “generally, they should be given less weight that that given to primary considerations”. The Direction notes that other considerations include:
(a)Family ties, the nature and extent of any relationship;
(b)The person’s age;
(c)The person’s health;
(d)Any links to the country to which they would be removed;
(e)Hardship likely to be experienced by the person or their immediate family members lawfully resident in Australia;
(f)Level of education;
(g)Whether the person has been formally advised in the past about conduct that brought the person within the visa consideration provisions of the Act.
I propose to discuss the background by reference to the considerations that are, or may be, relevant.
The first major consideration is the protection of the Australian community from serious criminal or other harmful conduct. The text of Direction [41] under this heading, after a reference back to the earlier stated objectives, notes that the factors relevant to assessing the level of risk of harm to the community of the person’s continued stay include,
“(a) the seriousness and nature of the relevant conduct; and
(b) the risk that the conduct may be repeated”.
Crimes involving violence or the threat of violence are said to be “of special concern to the welfare and safety of the Australian community”.
Mr Wipa has an appalling record of committing crimes, and particularly crimes of violence or threatened violence. It is quite astonishing considering that he has only just turned 25. His first court appearance was in the Children’s Court in December 2000 when he was dealt with for an offence of dishonesty. No conviction was recorded and no penalty imposed. The following month, just after Mr Wipa turned 14, he pleaded guilty to two further offences of dishonesty. There were three further occasions over the next 12 months when Mr Wipa was dealt with in the Children’s Court for offences of dishonesty (and a driving offence).
In November 2002 Mr Wipa was dealt with in the Children’s Court for one count of dangerous operation of a vehicle (with a circumstance of aggravation), one of robbery with actual violence, one of attempted robbery, one of assault occasioning bodily harm whilst armed, three of stealing, two of wilful damage, six of unlawful use of a motor vehicle, two of entering a dwelling and one of common assault. He was sentenced to detention for three months to be served by way of immediate release and he was put on probation for two years. The following month he was back before the court on further dishonesty charges.
Less than a year later, in August 2003, Mr Wipa appeared in the Children’s Court. He was sentenced to 12 months detention for robbery with actual violence whilst armed with a weapon and lesser sentences on charges of assault occasioning bodily harm, wilful damage (three charges), entering premises (three charges) and unlawful use of a motor vehicle. Mr Wipa appeared in the Children’s Court on three further occasions over the ensuring six months and was dealt with for dishonesty or property offences.
In August 2004 Mr Wipa, having turned 17, was sentenced in the Magistrates Court to one month’s imprisonment for common assault.
In June 2005 Mr Wipa appeared before his Honour Judge Hoath in the District Court of Brisbane and pleaded guilty to three counts of wilful damage, one count of unlawful entry of a motor vehicle with intent to commit an indictable offence with a circumstance of aggravation, two counts of depravation of liberty, one count of unlawfully using a motor vehicle to facilitate the commission of an indictable offence, one count of robbery, one count of assault occasioning bodily harm whilst armed and one count of stealing. All of the offences had been committed within two months of Mr Wipa having been released from detention. Two of the offences of wilful damage - to a public telephone on 25 March 2004 and to a refrigerator and paling fence on 4 April 2004 – were, in a sense, isolated offences, however the balance of the offences were committed in a single spree on 11 April 2004. On that day Mr Wipa was in the course of spraying graffiti on a factory wall (wilful damage) when two 16 year old youths drove up. Mr Wipa assaulted one of the youths with a piece of metal piping with a sharp end, demanded the keys and commandeered the car and drove off in it with the two youths in the car against their will. Various threats of violence were made to the youths during the course of the drive. At one stage the car was stopped and Mr Wipa struck a third youth (who happened to be in the street) on the forehead with a steering lock. That youth received significant lacerations to the head that required stiches in hospital.
Judge Hoath imposed an effective sentence of four years imprisonment, to be suspended after serving 15 months. 381 days of pre-sentence custody was declared to have been already served with the result that Mr Wipa would have been released from custody (on my calculations) in about July or August 2005.
Within a short space of time Mr Wipa re-offended. On 25 August 2005, he unlawfully used a motor vehicle. Then on 5 September 2005 Mr Wipa set upon a 14 year old male student who was waiting at a railway station. He put the youth in a headlock and punched him in the face with a clenched fist. Mr Wipa then stole the complainant’s wallet and ran off. On 21 April 2006 Mr Wipa pleaded guilty before his Honour Judge Trafford-Walker to offences of robbery in company with personal violence and unlawful use of a motor vehicle. His Honour activated 26 months of the 33 months remaining of the June 2005 suspended sentence and sentenced Mr Wipa to a further term of 15 months imprisonment on the robbery count. A concurrent sentence of 9 months was imposed for the unlawful use charge.
On 10 May 2007, in circumstances that remain unclear to me, the remaining seven months of the June 2005 sentence were activated.
On his release from custody in January 2009 Mr Wipa seems to have moved to Cairns. In June 2009 Mr Wipa committed the offences that lead to him appearing before his Honour Judge Harrison in December 2010. He commenced troubling the courts in that city in July 2009. Between then and January 2010 Mr Wipa appeared on four occasions and pleaded guilty to the bail offences. They appear not to be particularly serious although they demonstrate an apparent disregard to the obligations owed to the court to answer to bail and to honour the undertaking as to bail. There were other minor offences for which Mr Wipa was dealt with in the Magistrates Court in August and September 2010.
The most serious offences were dealt with by Judge Harrison in the District Court in Cairns in December 2010. On that occasion Mr Wipa pleaded guilty to two serious assaults, one of stealing, one of wilful damage and a summary offence of possession of dangerous drugs. Little is known of the circumstances of the stealing, wilful damage or dangerous drugs offences, however the serious assaults involved Mr Wipa spitting in the faces of a police officer and an ambulance officer with a mouthful of blood at a time when he was infected with hepatitis C. Those officers attended a family disturbance occasioned by the earlier death of Mr Wipa’s father. Mr Wipa was apparently upset and angry when confronted by those officers. As the learned sentencing judge said, his actions that day were despicable. On those counts he was sentenced to 18 months imprisonment but he was immediately released on parole, having spent 297 days in pre-sentence custody.
He was again arrested in March 2011 with the consequence that his parole was revoked and he was returned to custody. The position in relation to those matters is unclear however Mr Wipa says, and there is no material to contradict his statement, that those charges were dismissed recently.
Mr Wipa says that since he has been in custody he has done a lot to get his life back on track. He says, in terms, that he has stopped using drugs and drinking and has now reformed. The reliability of that assertion is open to grave doubt given his history.
As has already been noted Mr Wipa arrived in Australia in January 1991 shortly after he had turned four. He is now aged 25 years and has effectively spent the great majority of his life in Australia. As against that Mr Wipa commenced offending at a young age and has continued offending when not in custody.
Direction [41] requires me to consider, as a primary consideration, the best interests of any child of Mr Wipa who is under 18 years old. There are two children. One is the two year old son of his current de facto partner Ms Bendito (who is an Australian citizen born in New Zealand) and the other is the one year old daughter of a former girlfriend. Both children are Australian citizens and each of Mr Wipa, and the mothers, has expressed a desire that he be involved in the upbringing of the children.
Mr Wipa has been in a de facto relationship with Ms Bendito for about three years although the relationship has been severely restricted given that Mr Wipa has been in custody for much of that time. Ms Bendito has visited Mr Wipa, with their son, frequently whilst he has been in gaol.
Mr Wipa has no connections in New Zealand although he has a common language. All of his immediate family – his mother and four younger siblings – live in Australia. He has, though, limited contact with any of them; he has seen one brother only on a regular basis because he also has been in gaol.
Finally I note that in June 2008 a delegate of the Minister considered the cancellation of Mr Wipa’s visa but decided not to. Mr Wipa was warned in writing (and acknowledged in writing) that visa cancellation might be considered again “if further information of relevance comes to the attention of the Department…” Mr Wipa accepts that prior to that decision being made he told the Departmental official that the prospect of visa cancellation had made him assess his life further and made him think about his future. In his evidence before me he described the statement as “lies” but I do not think that he was intending to convey that he made those statements knowing them to be untrue; he was, I suspect, recklessly indifferent to the truth: as in so many other ways, he simply did not care. But in any event, his subsequent conduct has demonstrated that he did not think enough about that future.
I add, for the sake of completeness, that Mr Eteuati, who appeared for the Minister, sought to rely upon a bundle of documents, apparently taken from Mr Wipa’s Correctional Services file, to demonstrate the proposition that he had been in frequent trouble whilst an inmate. I ruled that I would not permit that tender, in the interests of fairness. The material was provided to the Tribunal (and I infer supplied to Mr Wipa) three days prior to the hearing. Had Mr Wipa wanted to give evidence about any of the matters contained in the documents he was obliged, by s 500(6H) of the Act, to have given the Minister written notice of any oral information that he proposed to give at least two business days prior to the date of hearing. In a practical sense, Mr Wipa had no opportunity to respond to the material and I considered it unfair for the Minister to seek to rely upon it.
The material contained in the s 501G documents includes material from Mr Wipa’s periods of custody up until 2007. That material demonstrates that, at least to that point, Mr Wipa had been a fractious prisoner. There is no reason to suppose that he changed from that time onwards.
Similarly I place no weight on the evidence that Mr Wipa was disruptive while in custody on the day prior to the hearing. The circumstances of his custody were such as would lead to the frustration that Mr Wipa expressed.
In the result I have come to the conclusion that the decision must be affirmed.
A convenient starting point, albeit one of the “other” considerations, is the fact of the warning to Mr Wipa in June 2008. The warning letter, although not expressed as simply and bluntly as it might have been, is plain enough. Mr Wipa chose not to accept the warning and chose to continue committing violent crimes. It is undoubtedly the case that Mr Wipa will experience hardship from the cancellation of his visa and his return to New Zealand. He has no family there and no connection with New Zealand beyond the fact of his birth there 25 years ago. But Mr Wipa is healthy and appears quite capable of hard work, albeit that he has not been gainfully employed for many years as a consequence of his incarceration.
And I accept that his immediate family will suffer as a consequence of Mr Wipa’s removal. But, as against that, he appears to have no close connections with his immediate family, his de facto relationship is of short duration, has been interrupted by a long period of incarceration and the fact of Mr Wipa having fathered another child, now aged one year or thereabouts demonstrates an absence of fidelity so far as Mr Wipa is concerned.
Direction [41] presumes that, generally, a child’s best interests will be served if the child remains with the child’s parents. There are, in this case, two children whose best interests must be considered. Little is known of the circumstances of Mr Wipa’s daughter. I have a letter from the child’s mother and Mr Wipa told me that the mother and his daughter used visit him in gaol from time to time. Mr Wipa is unsure of the child’s age and birthday. He has not played any real role in the child’s nurture to date and, it must be said, I was unable to detect in Mr Wipa any particular affection for his daughter. There is, however, an evident affection which Mr Wipa displays for his son and, no doubt, that affection has been reciprocated on the frequent visits by Ms Bendito and the son to see Mr Wipa in gaol. But Mr Wipa has been in gaol for virtually the entirety of his son’s life. As best as I can ascertain Mr Wipa has been in gaol for all but the first three months on the child’s life. And, as I will discuss in greater detail below, there is every reason to think that Mr Wipa will go on committing further offences leading to longer and longer sentences of imprisonment with the necessary consequence of less involvement on Mr Wipa’s part in the raising of the children.
It seems that Mr Wipa had what his Honour Judge Hoath described as “an unfortunate upbringing”, having been raised in the main in foster placements or with relatives other than his parents. He has demonstrated an unfortunately violent nature from an early age and it seems highly likely that that violent nature remains. It was certainly evident, at one stage in the course of the hearing, that Mr Wipa was having difficulty in keeping his anger in check. There is every reason to suppose that that anger might be used against a partner or child in the future. Thus, despite Mr Wipa’s affection for his son, I am led to conclude that the best interests of the two children would not be served by being raised by, or in proximity to, Mr Wipa.
As I have noted, Mr Wipa was first before the criminal courts at the age of 13 years, some nine years after he arrived in this country and he has continued offending ever since. The most concerning aspect of the present case is the extent of that offending and the violence that Mr Wipa has shown in committing offences. There is no evidence to suggest, and no reason to suppose, that Mr Wipa would refrain from committing offences if released into the community. His record to date suggests to the contrary. He has been given the opportunity and the motive, by the imposition of a suspended sentence, to mend his ways but ultimately was obliged to serve the entire sentence because he continued offending. All three of his most serious episodes of offending has been characterised by a high level of personal violence directed to persons who were essentially strangers to him.
The violence towards the police officer and the ambulance officer in June 2009 is inexcusable. It is possible to at least understand that Mr Wipa might have harboured animosity towards police officers in general but I find the violence directed to the ambulance officer quite inexplicable. Those offences, and Mr Wipa’s record, satisfy me that there is a high likelihood that Mr Wipa will continue to offend and will continue to offend in a violent manner.
Direction [41] explicitly acknowledges that there will be circumstances where it will be appropriate for the community to accept more risk of harm from re-offending where the person has, in effect, become part of the Australian community as a consequence of having spent all, or a major part, of their formative years in this country. Mr Wipa certainly has spent all of his formative years in this country but I am unable to conclude that he has become a part of the Australian community. He has no apparent links to the wider community, he has no particular links to his family, he has had only the most basic education and has hardly participated in any employment. That, no doubt, is the consequence of his actions and of him having spent much of his life from the age of about 16 years in custody. But it does not demonstrate, as is sometime demonstrated in similar cases, a deep connection to the Australian community. Mr Wipa’s assertion that he is a “weet-bix kid” does not persuade me when the evidence does not do so.
I am then left to conclude that, despite the very young age that Mr Wipa arrived in Australia, the likelihood of him committing further offences (and thereby causing harm to members of the Australian community) is such as warrants the cancellation of his visa. I would then affirm the decision under review.
I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC.
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Associate
Dated 28 February 2012
Date(s) of hearing 24 February 2012 Applicant In person Solicitors for the Respondent Clayton Utz
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