Taputoa Meti and Minister for Immigration and Citizenship
[2012] AATA 90
•16 February 2012
[2012] AATA 90
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/5188
Re
Taputoa Meti
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Deputy President RP Handley
Senior Member D Letcher QCDate 16 February 2012 Place Sydney Decision Summary The decision under review is affirmed.
.............[sgd]...........................................................
Deputy President R P Handley
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 – whether a minor when person began living in Australia – length of time ordinarily resident in Australia prior to engaging in criminal activity – best interests of the child - other considerations - family ties, the nature and extent of any relationships – person’s age – person’s health – 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 – whether the person has been formally advised in the past of conduct that brought the person within deportation provisions – decision under review affirmed
Legislation
Migration Act 1958 (Cth): s 501Cases
Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 390;
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133Secondary Materials
Direction [no. 41] - Visa Refusal and Cancellation under section 501REASONS FOR DECISION
Deputy President R P Handley
Senior Member D Letcher QC16 February 2012
Mr Meti has applied to the Tribunal for the review of a decision of a delegate of the Minister for Immigration and Citizenship (the Minister) to cancel his visa on the ground that he does not pass the character test because of his substantial criminal record.
BACKGROUND
Mr Meti was born in the Cook Islands in February 1969 and is now aged 43. He moved from the Cook Islands to New Zealand with his family at the age of about 13, and he is a New Zealand citizen. Mr Meti arrived in Australia in June 1994, aged 25, and has not departed since. He was the holder of a Class TY Subclass 444 Special Category (Temporary) visa that permitted him to stay in Australia indefinitely. Mr Meti has had a number of marriage-like relationships and has three living children, two of whom are aged under 18 and living in Australia.
On 13 September 1997, after Mr Meti had been in Australia for three years and two and a half months, he committed a number of offences to which he pleaded guilty at later times. These included ‘detain for advantage and cause injury to victim’ and ‘aggravated sexual assault – offender in company with other person/s’. The first offence was taken into account by the judge who, on 31 October 2003, sentenced Mr Meti for the aggravated sexual assault to 12 years and six months imprisonment with a non-parole period of eight years, commencing on 19 April 2004. Mr Meti’s first conviction, however, was on 16 April 1998, when he was found guilty of the possession of a prohibited drug on 13 September 1997 without a conviction being recorded and with no penalty being imposed.
Thereafter, his criminal history is as follows:
·On 24 June 1998, Mr Meti was charged with the offence of ‘possess shortened firearm unless authorised by permit’, of which he was convicted on 9 July 1998 and fined $300.
·On 9 December 1999, he was charged with the offence of ‘stalk/intimidate with intent to cause fear physical/mental harm’, of which he was convicted on 24 July 2001 and sentenced to three months imprisonment, commencing on 26 February 2001.
·On 22 July 2000, he was charged with the offences ‘robbery while armed with dangerous weapon’ and ‘possess shortened firearm (not pistol) without authority’, ‘possess prohibited drug’, ‘possess ammunition without holding licence/permit/authority’, and ‘not keep firearm safely prohibited weapon’. On 13 September 2001, Mr Meti was sentenced to seven years imprisonment, with a non-parole period of four years and six months, commencing on 20 October 2000 for the robbery offence, and two years’ imprisonment with a non-parole period of 15 months for the possession of shortened firearm offence, to be served concurrently, and with the other offences taken into account.
·On 4 September 2000, Mr Meti was charged with ‘malicious damage’, ‘unlicensed driver’ and ‘mid prescribed concentration of alcohol’ and, on 16 October 2001, was sentenced to three months imprisonment commencing on 16 October 2001, a fine of $200 and disqualification from driving for 12 months.
Mr Meti is first eligible for release on 18 April 2012. He was first remanded into custody on 21 July 2000 and has been in custody ever since. He has incurred eight institutional charges during his 11 years in prison.
The Department sent Mr Meti a ‘Notice of Intention to Consider Cancellation’ of his visa on 26 May 2011, inviting him to respond. On 28 June 2011, the Department also sent Mr Meti an ‘Immigration Report’, dated 27 June 2011, prepared by the NSW Probation and Parole Service (the Immigration Report), inviting his comments. On 8 July 2011, Mr Meti responded with a completed ‘Personal Details Form’ and accompanying documents.
On 22 November 2011, a delegate of the Minister decided to cancel Mr Meti’s visa and Mr Meti was notified of this by letter dated 25 November 2011. On 5 December 2011, Mr Meti applied to the Tribunal for a review of this decision.
RELEVANT LAW AND POLICY
Section 501(2) of the Migration Act 1958 provides that the Minister may cancel a visa if “the Minister reasonably suspects that the person does not pass the character test” and “the person does not satisfy the Minister that the person passes the character test”. Section 501(6)(a) provides that a person does not pass the character test if the person has a substantial criminal record. ‘Substantial criminal record’ is defined in s 501(7) as, among other things, having been sentenced to a term of imprisonment of 12 months or more, or to two or more terms of imprisonment where the total of those terms is two years or more.
Mr Meti has been sentenced to terms of imprisonment of 12 months or more on three occasions. Thus, he does not pass the character test. It was therefore open to the Minister to cancel Mr Meti’s visa. In exercising this discretion, the decision-maker must apply Direction [no. 41] - Visa refusal and cancellation under s 501 of the Act (Direction [41]). Direction [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.
The ‘primary’ considerations in Direction [41] are set out in paragraph 10(1):
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).
(Original emphasis)
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 [41] paragraph 11(2), they should be given less weight than the ‘primary’ considerations. Those ‘other’ considerations are discussed below.
PRIMARY CONSIDERATIONS
The ‘primary’ considerations relevant in Mr Meti’s case are the protection of the Australian community; whether he was a minor when he began living in Australia; the length of time he was ordinarily resident in Australia prior to engaging in criminal activity; and relevant international obligations, in particular, the best interests of his children. These considerations are addressed below.
THE PROTECTION OF THE AUSTRALIAN COMMUNITY
Direction [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
With regard to the seriousness of Mr Meti’s conduct, the Tribunal notes that “Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community” (paragraph 10.1.1(1) of Direction [41]). Among the examples of offences and conduct that are considered serious listed in paragraph 10.1.1(2) of Direction [41] are rape and sexually-based offences, and also robbery. Mr Meti has been convicted of both aggravated sexual assault and robbery as well as various less serious offences. The Judges’ sentencing comments about the aggravated sexual assault and robbery offences include descriptions of the offences which indicate that the offences are particularly serious and Mr Meti said he accepted these descriptions as being accurate factual accounts.
Paragraph 10.1.1(3) of Direction [41] 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.
The offences for which Mr Meti has been sentenced all took place in a relatively short period of time between 1997 and when Mr Meti was remanded in custody in July 2000. He had no prior convictions in New Zealand before coming to Australia. On 13 September 2001, in the District Court of NSW, Judge Armitage sentenced Mr Meti to seven years imprisonment (non-parole period four years and six months) for the offences of robbery and possession of a shortened firearm. The Judge described the offence of robbery as “particularly serious”, noting that Mr Meti was armed with a dangerous weapon and that the motel receptionist whom Mr Meti threatened “was terrified”.
On 31 October 2003, also in the District Court of NSW, Judge Bellear sentenced Mr Meti to 12 years and six months imprisonment (non-parole period eight years) for the offence of aggravated sexual assault. Judge Bellear noted:
This offence occurred in September 1997 and it was not until DNA profile and comparison tests were conducted in 2001 and fingerprint matching was completed that this offender was detected and subsequently charged.
The Judge described the incident involving Mr Meti and his female victim as:
… very brutal and vicious, she being forced to comply with the sexual demands in the early hours of the morning as he had a gun to her head almost throughout the ordeal.
He said:
I am satisfied that this act, committed by this offender on the female victim was an act of “revenge” for what had occurred to his girlfriend some time previously.
Mr Meti now denies it was an act of revenge.
Judge Bellear identified 14 aggravating factors in relation to the offence and five mitigating factors, and said that while he accepted that Mr Meti had commenced rehabilitation:
… he has an extremely long way to go. I am satisfied that the objective criminality of this offender far outweighs his subjective factors.
The Immigration Report states that “Mr Meti has demonstrated satisfactory custodial behaviour and attitude”. The Report says that if he completes the sex offender program, for which he has been assessed as suitable but on which he has not yet been offered a placement, and if his post-release accommodation is found to be satisfactory, it is “likely he would be favourably considered for release to parole supervision”.
With regard to mitigating factors, Mr Meti’s evidence is that after the still birth of his daughter in 1996, “things started to go wrong in my life”: he began taking drugs such as cocaine and steroids; he began drinking heavily; his relationship with his girlfriend deteriorated and he started seeing other women behind her back; he stopped going to church; he lost his job and his rugby sponsorships – he had been playing rugby union professionally - and he lost the unit where he was living. He also started hanging around with the wrong people and committing crime. Mr Meti said he “lost everything in my life, my family, my good friends, my community and most of all my children”. He said he was also still grieving the death of his father (his biological uncle who brought him up) who was killed in a plane crash in about 1991. He had never previously been in trouble and does not have a criminal record in New Zealand, where he was brought up in a religious family.
Mr Meti said it was only when he started getting help in prison from counsellors and psychologists that he started getting back to a normal life. He stopped taking drugs, stopped smoking cigarettes, and started doing courses, serving as a delegate for the prisoners and raising money for charity. Mr Meti said he takes responsibility for the crimes he committed although he acknowledged that he had at first pleaded not guilty to the robbery charge. He said this was because he was still taking drugs at the time. Moreover, while he at first denied the sexual assault charge, he later decided to plead guilty, against the advice of his lawyers. Mr Meti said he has always shown remorse for his actions and prays to God daily for the safety of his victims and their families and for the hurt he caused.
In summary, Mr Meti is guilty of very serious crimes committed over a period of about three years, following the stillbirth of his daughter, at a time when he was using prohibited drugs and alcohol. He has now served 11 years in prison for these crimes, which involved violence and are of a kind that are of special concern to the Australian community.
The risk that the conduct may be repeated
With regard to the risk that the conduct may be repeated, paragraph 10.1.2 of Direction [41] requires that consideration be given to Mr Meti’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.
NSW Department of Corrective Services records show that Mr Meti has eight institutional charges recorded over a period of over 10 years, the first being on 9 December 2000 and the most recent being on 10 March 2011. With regard to the three most recent charges, the Immigration Report states:
In discussing the most recent charges, Mr Meti advised the following circumstances:
10/3/2011, resulted from him receiving a disc player from another inmate
2/7/2010, occurred after a verbal argument between the offender and a Correctional Officer in Industries over the use of tools
2/10/2008, the offender had lent a compact disc to another inmate, an argument occurred when he asked for the return of that disc and the offender ‘slapped’ the other inmate
Records indicate that Mr Meti has been urinalysis tested on seven occasions. He returned a positive testing to cannabis on 9 December 2000, with all subsequent testings having nil drugs detected. Mr Meti stated the one positive testing occurred whilst he was still on remand and was experiencing anxiety related to his incarceration.
The Report refers to Mr Meti’s “positive behaviour during his sentence”, to his “excellent work reports”, and to the extensive list of educational and rehabilitation programs Mr Meti has completed while in prison. Mr Meti has provided copies of certificates of attainment/achievement for the many courses he has completed including TAFE transcripts of academic record for the community services and hospitality subjects he has undertaken.
Mr Meti said he has served as a delegate for prison inmates, part of that role being to help keep the peace between different groups of inmates, and that it was this that led to be his being stabbed by people he thought were his friends in 2001 while he was in Long Bay Correctional Centre. He spent a week in the Prince of Wales Hospital before being transferred to Long Bay Hospital. Mr Meti said he has tried to avoid gaol politics and, in particular, has avoided involvement in and refused to join prison gangs.
The Pre Release Report for Mr Meti dated 16 December 2011 prepared by the NSW Probation and Parole Service states:
Mr Meti has actively engaged in intervention to address his abuse of alcohol and illicit drugs. Intervention has included completing the Getting Smart program at Junee Correctional Centre in 2008. Although not being required to do so he again commenced Getting Smart at Lithgow Correctional Centre in November of this year and recently completed the program.
…
Mr Meti has also participated in Alcoholics Anonymous. In regard to his participation in Alcoholics Anonymous it was reported, “Meti has been overseeing the AA program for over twelve months and has shown consistent attendance every Sunday. Inmate Meti often makes contact with the author in regards to group attendances and participation levels of other inmates. Inmate Meti has been a valuable member of the group and displays interest and commitment to the program.”
The Report also states that Mr Meti has been assessed as suitable for the moderate intensity sex offenders program and has been on the waiting list for a placement since 2008. Mr Meti said he was originally assessed as being of a low risk of re-offending, but because the sex offenders program was only open to those who are assessed as being of moderate to high risk of reoffending, he asked to be reassessed. Hence his assessment as being in the moderate to high risk group. However, the program has not yet been made available to him. If he is released into the community, he says he is willing to do any such program and also attend any drug and alcohol programs recommended by the Probation and Parole Service. He says he will not be taking drugs or consuming alcohol again. He sees drugs being taken every day in prison and has taken courses to keep himself away from this and to ensure he does not get involved in crime again. In the community, he says he will have a lot of family support and wants to be a father figure for his children.
Mr Meti said his life has changed in the time he has been in prison. He believes his main problem was drugs, which he gave up on being sentenced, even refusing to go on the methadone program because, while on the program, a person is still taking drugs. He learned to change his life and has learned to do things he can give back to the community. If he is released into the community, he wants to be a family man and be with his children, and he plans to live with his partner and her children. He acknowledged that he had previously said he would stay with his brother (his biological cousin), the Reverend Fakeau Joseph of the Cook Islands Christian Church in Sydney. Mr Meti wants to be thought of as a loving and caring father, a part of the community and involved in community and charity work. He is a boilermaker by trade and hopes ultimately to work as a subcontractor as he did in the past for AGL laying gas pipelines.
With regard to Ms Stone’s contention that the aggravated sexual assault was an act of revenge, Mr Meti denied this and noted, for example, that he has never sought retribution for his being stabbed in prison, which would be the norm. He said he is willing to do anything to keep the community safe and will never reoffend.
The Tribunal is satisfied that Mr Meti has taken significant steps towards rehabilitation, albeit that because he has been in prison for the past 11 years this is untested in the community. Of concern, however, is that he has been unable, through no fault of his own, to undertake a sexual offenders program because, despite his being on the program waiting list, he has not yet been offered a place. We note the Pre Release Report dated 16 December 2011 states in its conclusion:
Mr Meti has been assessed by the Static 99 as being in the moderate to high risk group for sexual re-offending. As such participation in relevant custodial based sex offender programs is considered imperative prior to the offender’s release to the community.
Ms Stone, for the Minister, was unable to explain how such an assessment is made although she was able to point to the indicia included in the forms that are used in the assessment. Unfortunately, this did little to assist in our understanding of the assessment. Nevertheless, doing the best we can, it seems clear that for the present, Mr Meti should be considered at least a moderate risk of re-offending. Given the seriousness of the crimes has committed, discussed above, we conclude that the protection of the Australian community strongly favours the cancellation of Mr Meti’s visa.
WHETHER HE WAS A MINOR WHEN HE BEGAN LIVING IN AUSTRALIA
Mr Meti was aged 25 when he first began living in Australia in 1994. He said he came to Australia to change his life for the better: to get away from memories of losing his father and his broken relationship with his daughter’s mother.
In Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 390, at 396, Rares J said:
In my opinion, a decision-maker was entitled to take into account the fact that a person who arrived in Australia as an adult, did so with the knowledge, duties and responsibilities of an adult in the position of the visa holder, at that time for the purposes of assessing what, if any, weight ought be given to that factor in the deliberative process. A decision-maker was entitled to take into account the fact that the person was not a minor. Indeed, a decision-maker was bound to have regard to that consideration by force of cl 10(1)(b). No direction is provided in the balance of Direction 41 as to the weight that should be given to the fact that the visa holder was not a minor under cl 10(1)(b).
Mr Meti’s evidence is that his life went off the rails after his daughter was stillborn in 1996. By this stage, he had had several relationships and children, run his own business and been an active member of his church. It is clear to us that he must have been a mature adult and should have been fully aware of the consequences of his offences. This primary consideration favours cancellation of Mr Meti’s visa.
LENGTH OF TIME ORDINARILY RESIDENT
The third primary consideration relevant in Mr Meti’s case – the length of time he has been ordinarily resident in Australia – is further explained in paragraph 10.3(1) of Direction [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”.
Mr Meti has been resident in Australia for over 17 years, of which he has spent the past 11 years in prison. He committed his first offence in Australia on 13 September 1997 when he had been here for three years and two and a half months. In Rosson v Minister of Immigration and Citizenship (2010) 191 FCR 390, at 396, Rares J said that such a history should be considered an unfavourable matter in weighing a person’s entitlement to a visa.
BEST INTERESTS OF THE CHILDREN
Direction No 41, paragraph 10.4.1(4) states: “Under Australian law, it is generally presumed that a child’s best interests will be served if the child remains with its parents”. In Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133 (Wan), the Full Federal Court said, at 142:
Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of Mr Wan's children, it was entitled to conclude, after a proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children. However, it was required to identify what the best interests of Mr Wan's children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.
The Direction sets out a number of factors to be considered in ascertaining the best interests of the child. These include, relevantly, the nature of the relationship between the child and the person; the duration of the relationship including the number and length of any separations and the reasons for those separations; the extent to which the person is likely to play a full parental role in relation to the child; the child’s age, citizenship and relationships with others in a parental role; the likely effect that any separation from the person would have on the child; the impact of the person’s prior conduct on the child; any known wishes expressed by the child; the circumstances of the probable country of future residence; and any language and cultural barriers there for the child.
Mr Meti states he has two children in Australia who are aged under 18 and currently living with their different mothers. Mr Meti was unable to recall their dates of birth but thought his son is aged 14 or 15 and his daughter is about 13. Despite not remembering their dates of birth, he said he was present at their births, remembers at which hospital they were born and holding them in his arms. Mr Meti has had no contact with them since he has been in prison and has no current knowledge of where they or their mothers are living. However, he said he loves all his children, they are always in his heart and he never stops thinking about them. He is confident that he can establish a relationship with his children and hopes to be a loving father to them and a good role model for the future. Mr Meti said one of his brothers who is a security guard working at the Westfield Shopping Centre at Parramatta has seen the two children with their mothers from time to time and Mr Meti has received word of this through his family. Mr Meti also has a daughter in New Zealand who was born in about 1991/1992 and is, therefore, an adult, with whom he has had no contact since he left New Zealand in 1994, having split up with her mother, his then fiancée.
Mr Meti states he is also in a parental relationship with the Reverend Joseph’s daughter who is now aged 19. As she is no longer a child, we refer to her under the heading ‘Other Considerations’, below. She does, however, have a daughter aged one, to whom Mr Meti says he is close. Nevertheless, the child already has a grandfather in the Reverend Joseph and the daughter says Mr Meti is like an uncle to her child.
Mr Meti referred to his relationship with his new partner and with her three young children whom he said he loves and looks on as his own. Those children – a daughter aged four and twin boys aged nearly two - are still very young – and Mr Meti’s contact with them has been limited to one hour visits every fortnight. While the children’s biological father is separated from their mother, they still see him on a reasonably regular basis.
In the Tribunal’s view, the evidence does not indicate that any of the above children are likely to suffer a significant adverse effect by reason of Mr Meti’s being removed to New Zealand. Mr Meti has not seen his two younger biological children for over 11 years and has not had any contact with them. They were both very young at the time he last saw them – his son aged about three and his daughter about one – and Mr Meti has not been part of their lives during most of their formative years. If they wish to establish contact in the years to come, this will be possible by telephone and by electronic means and they should be able to visit Mr Meti in New Zealand.
OTHER CONSIDERATIONS
As noted above, Direction [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 Meti’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 Meti and his immediate family members in Australia; and whether he has been formally warned in the past that his visa might be cancelled because of his criminal conduct.
Mr Meti said he was born in the Cook Islands where he started his schooling. His biological father died when Mr Meti was about 2 years old and Mr Meti and his siblings were brought up by his ‘auntie’ (his father’s sister) and uncle, whom he came to regard as his parents, and their family. It was a religious upbringing. He and his uncle’s children (his first cousins) have always referred to each other as brothers and sisters. Mr Meti left the Cook Islands in 1982 with his family and completed his schooling in New Zealand. On leaving school, he trained as a boilermaker and started playing rugby union as a professional. He lived a normal life and he and his fiancé had a daughter. Things started to change after his uncle was killed in a plane crash on the way back to the Cook Islands. Mr Meti said his relationship with his fiancé deteriorated and finally broke down, and he eventually left his employment, terminated his rugby contracts and moved to Australia to start a new life.
Mr Meti said he is one of six siblings (also stated by the Reverend Joseph in a letter to the Department dated 7 July 2011). He has a twin brother living in Auckland, a sister and another brother in New Zealand, and two brothers living with his auntie in Melbourne. His biological mother still lives in New Zealand. He has other ‘brothers’ (first cousins, including the Reverend Joseph) living in Sydney. Mr Meti said he has had no contact with his family in New Zealand since leaving. However, when family members have visited Reverend Joseph from New Zealand, Mr Meti has spoken to them on the phone. Reverend Joseph said he himself has four brothers, three sisters and a lot of other family in New Zealand with whom he is still in contact and he would help arrange family support for Mr Meti if he has to return there.
Reverend Joseph said when he studied for the Ministry in Fiji, Mr Meti looked after his wife and children in Sydney. It was then that Mr Meti became close with Reverend Joseph’s daughter, who referred to Mr Meti as her “feeding dad” to whom she is closer than other family members. She said that she has now been living with her partner for three or four months and that Mr Meti is like an uncle to her one year old son.
Mr Meti said he met his present partner through an old friend (with whom she was in a marriage like relationship) when they both came to visit him in prison about six years ago. His partner continued to visit him and they would often speak on the phone. His partner told the Tribunal that three or four years ago her relationship with her former partner, Mr Meti’s friend, was deteriorating and while they initially stayed together for the sake of their children, they eventually separated last year and her former partner moved out about six months ago. Mr Meti’s partner said that over the past 18 months to two years, her relationship with Mr Meti had been getting closer and then, about six or seven months ago, they told each other of their true feelings – that they love one another and want to spend the rest of their life together. Mr Meti’s partner visits Mr Meti at Lithgow Correctional Centre every weekend for the permitted one hour visit and they talk on the phone every day and write letters to one another. She said she receives a sole parent pension and rents her house from a neighbour. She could not contemplate leaving Australia if Mr Meti is returned to New Zealand because of her family here.
Mr Meti said he hopes to live with his partner if he is released into the Australian community. He acknowledged that he did not mention her in the information he provided to the Probation and Parole Service for the Immigration and Pre Release Reports, and nor did he mention her on the Personal Details Form he provided to the Department in July 2011. He did not do so because he had already nominated Reverend Joseph as the person he would live with on his release from prison. Mr Meti said he also did not initially tell his partner of the possibility of his visa being cancelled.
The Tribunal accepts that for Mr Meti and his close family in Australia, including in particular his partner, his being returned to New Zealand will cause emotional hardship. They will, however, be able to maintain contact with and visit him. Moreover, Mr Meti lived in New Zealand until the age of 25 and there appears to be no significant reason why he should not re-establish himself there with, it is to be expected, support from his family including some of his siblings who live in New Zealand. His age and health are no barrier to this and he has trade and other qualifications that should assist him in finding him employment.
Finally, with regard to the ‘other considerations’, we note that Mr Meti has not been formally advised in the past that he might be liable to deportation if he commits any further misconduct.
CONCLUSION
Weighing up the relevant ‘primary considerations’, the Tribunal is satisfied that while Mr Meti has made significant progress in his rehabilitation, for him to be released into the Australian community poses at least a moderate risk of his reoffending; in particular, because as identified by the Probation and Parole Service Pre Release Report dated 16 December 2011, he has not yet completed a sexual offenders’ program. Given the serious nature of some of his offences, the protection of the Australian community strongly favours the cancellation of his visa.
The second and third primary considerations also favour the cancellation of his visa. The best interests of his two children in Australia should be accorded lesser weight than, in particular, the protection of the Australian community, given that Mr Meti has had no contact with them for the past 11 years and has no current knowledge of their whereabouts.
With regard to the ‘other considerations’, the Tribunal accepts that Mr Meti’s return to New Zealand would cause hardship to both him and his family in Australia. But, again, in the circumstances of this case, this consideration should be accorded lesser weight than the protection of the Australian community.
Having had regard to both the primary and other considerations, we conclude that the protection of the Australian community requires that the discretion in s 501(2) of the Act should not be exercised in Mr Meti’s favour and that his visa should be cancelled.
DECISION
The decision under review is affirmed.
I certify that the preceding 57 (fifty seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley.
...........[sgd]..........................................................
Associate
Dated 16 February 2012
Date(s) of hearing 6 - 7 February 2012 Applicant In person Advocate for the Respondent Michelle Stone Solicitors for the Respondent DLA Piper Australia
0
2
0