Te Whaiti and Minister for Immigration and Border Protection (Migration)

[2017] AATA 94

Te Whaiti and Minister for Immigration and Border Protection (Migration) [2017] AATA 94 (31 January 2017)

Division:GENERAL DIVISION

File Number(s):      2016/1330

Re:Bastiaan Te Whaiti

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:31 January 2017

Place:Sydney

The decision under review is affirmed.

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

Mrs J C Kelly, Senior Member

CATCHWORDS

MIGRATION – mandatory visa cancellation on character grounds – applicant requested revocation – decision not to revoke the visa cancellation – substantial criminal record – prison term of more than 12 months – whether the discretion should be exercised to revoke the cancellation – protection of Australian community – expectation of Australian community – best interests of minor children in Australia – strength, nature and duration of ties – decision affirmed

LEGISLATION

Migration Act 1958 (Cth) ss 501(3A), 501CA(4) & 501(7)

Mental Health (Forensic Provisions) Act 1990 (NSW) s 32

CASES

Tanioria v MIBP [2016] FCAFC 43

SECONDARY MATERIALS

Direction No. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

31 January 2017

THE REVIEWABLE DECISION

1. The applicant, Mr Te Whaiti, seeks review of the delegate’s decision made on 16 February 2016, pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Act), not to revoke the decision to cancel the applicant’s Class TY Subclass 444 Special Category visa, which was made on 25 February 2015. That decision was made pursuant to s.501(3A) of the Act.  It was mandatory because of the applicant’s substantial criminal record and he was serving a sentence of imprisonment, on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory.

2. For the reasons that follow, the Tribunal affirms the decision under review.

   THE LAW

3. A substantial criminal record is defined in s 501(7) of the Act to include if a person has been sentenced

   ·to death; or

   ·to imprisonment for life; or

   ·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 12 months or more.  

4. Where a person has been sentenced to two or more terms of imprisonment to be served concurrently, the whole of each term is to be counted in working out the total of the terms.

5. The Tribunal must have regard to Ministerial Direction No. 65, “Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA” when deciding whether the cancellation of the applicant’s visa should be revoked.

6. The Principles set out in paragraph 6.3 of the Direction make it clear that:

   (a)being able to 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;

   (b)the Australian community expects that the Australian Government can and should refuse entry to non-citizens or cancel their visas, if they commit serious crimes in Australia;

   (c)a non-citizen who has committed a serious crime, including of a violent nature, and particularly against vulnerable members of the community, should generally expect to be denied the privilege of coming to or to forfeit the privilege of staying in, Australia;

   (d)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 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 on the Australian community for most of their life, or from a very young age;

   (e)Australia has a low tolerance of any criminal conduct by visa applicants reflecting that there should be no expectation that such people should be allowed to remain permanently in Australia; and

   (f)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequence 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-citizens’ visa should be cancelled.

7. The Principles are not punitive but protective: Tanioria v MIBP [2016] FCAFC 43 at [19].

8. The primary considerations[1] under the Direction are:

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

   (b)The best interests of minor children in Australia; and

   (c)Expectations of the Australian community.

   [1] See Minister for Immigration and Citizenship (Cth), Direction No. 65 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, 22 December 2014, [13] (‘Direction No. 65’).

9. Paragraph 14 of the Direction provides that certain other considerations must also be taken into account (where relevant), but that they should generally be given less weight than the Primary Considerations[2].  Relevantly, those considerations include the strength, nature and duration of ties, and extent of impediments if removed.

   [2] See Direction No. 65, [8(4)].

   UNCONTENTIOUS FINDINGS

10. The following findings are uncontentious.

11. The applicant was born in New Zealand on 1 February 1966.  He is 50 years old.  He is a citizen of New Zealand who arrived in Australia on 8 January 1990, just before his 24^th birthday. He has never returned to New Zealand. He has never married, and has no partner or children.  The applicant claims that he worked as a deckhand from 1990 to 1998, as a sand blaster from 1991 to 1994, as a kitchen hand from 1997 to 2004 and as a labourer from 2005 until 2009. He listed his involvement in the community as being through sporting, cultural, social, religious, charity and other groups including specifically a church choir, five rugby league and rugby union clubs, and a community club.

12. The applicant has a long history of alcohol abuse. He began drinking alcohol at the age of about nine. The hospital “Discharge Referral Note”, dated 5 August 2014, refers to his using crystal methamphetamine as well as drinking alcohol. The note referred to the applicant presenting to the facility with alcohol withdrawal. He is receiving a disability support pension.

13. The applicant has an extensive criminal record in Australia, with more than 50 convictions, spanning the period from 19 October 1990 when he was convicted of wilful and unlawful damage to motor vehicle, fined and ordered to pay restitution of $969.47, until the offences for which he appeared in court on 17 September 2014.  He committed no offences from 1990 until 1998, but thereafter he committed offences and was fined or convicted for offences in relation to one incident in each of 1999, and 2002, two incidents in 2003, three incidents in 2004, one incident in each of 2006, 2007 and 2009, two incidents in 2012, one incident in 2013, and three incidents in 2014.

14. The applicant has been sentenced to terms of imprisonment for the following offences:

Date	Court	Offence	Outcome
17.09.14	Downing Centre Local Court	Imprisonment for 8 months. This sentence relates to an earlier conviction and sentence on 23 May 2014. On 23 May 2014, the applicant was sentenced to 8 months imprisonment for assault occasioning actual bodily harm suspended for 8 months. The sentence was called up on 17 September 2014.
Downing Centre Local Court	Assault Officer in Execution of Duty	Imprisonment for 8 months (concurrent with the above).
17.09.14	Downing Centre Local Court	Behave in Offensive Manner In/Near Public Place/School	Imprisonment for 3 months (concurrent with the above).
23.05.14	Downing Centre Local Court	Assault Occasioning Actual Bodily Harm	Imprisonment for 8 months, suspended for 8 months upon entering a bond. The applicant committed a further offence while on bond and this sentence was called up on 17 September 2014. Sentence served concurrently with the above sentences.
08.07.09	Balmain Local Court	Drive While Disqualified from Holding a Licence Drive With a Middle Range Prescribed Concentration of Alcohol	Imprisonment for 6 months for each charge, suspended upon entering a bond for 6 months. Licence disqualified for 2 years cumulative.
23.09.04	Newtown Local Court	Fail/Refuse to Undergo Breath Analysis	Imprisonment for 15 months commencing 20 August 2004. Licence disqualified for 5 years cumulative.
23.09.04	Newtown Local Court	Drive While Disqualified From Holding a Licence	Imprisonment for 12 months commencing 20 August 2004. Licence disqualified for 2 years.
23.09.04	Newtown Local Court	Intimidate Police Officer In Execution of Duty Without Actual bodily Harm Have Custody of an Offensive Implement in a Public Place	Imprisonment for 6 months on each charge, commencing 23 September 2004.
23.09.04	Newtown Local Court	Shoplifting Value Less Than or Equal to $2,000	Imprisonment for 2 months, commencing 20 August 2004. Pay compensation of $22.12.
23.09.04	Newtown Local Court	Destroy or Damage Property Less than or Equal to $2,000	Imprisonment for 2 months, commencing 20 August 2004.
11.04.04	Newtown Local Court	Intimidate Police Officer in Execution of Duty Without Actual Bodily Harm	Convicted. Released on Bond for 12 months. This sentence was called up on 23 September 2004 and the applicant was required to serve 5 months imprisonment, commencing 23 September 2004.

1. The applicant has been in prison or immigration detention since he went to prison on 17 September 2014. 

2. The applicant was represented at court on 23 May 2014 by an advocate from the Homeless Persons’ Legal Service who wrote to him to advise that his application pursuant to s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) was unsuccessful because of the seriousness of the assault.

   CONSIDERATION AND FINDINGS

3. The Tribunal has taken into account the documentary and oral evidence and submissions provided by the applicant, and the documentary material, including the statement of facts, issues and contentions and oral submissions of the respondent. 

4. The Tribunal accepts the applicant’s evidence that alcohol causes trouble for him.  Many of the offences he has committed involved his use of alcohol. He lived on the streets for several years from 2007 to 2011. He has a history of busking and drinking.  He told the Tribunal that he did not recall a number of the incidents, but was able to recount some. For example, he explained that the assault for which he was convicted in May 2014 occurred because someone had robbed some of his gear from St James Railway Station where he stayed with some of his homeless friends because he had been drinking and could not catch a bus to his home.  He told the Tribunal that he could not stop beating the person.  The applicant also told the police that he could not stop beating his victim.

5. The incident which resulted in the call up of the May 2014 conviction, occurred on 19 June 2014.  The applicant told the Tribunal a version of events which is similar to that recorded by the police. The applicant said that he had made some money busking. He went to a Gold Class movie.   He had a small dog at the time. He said that he let the dog out of the bag in which he was carrying it and it ran around.  The usher told him to go and picked up the dog which made the applicant go “off the rails” and throw four bottles of pre-mixed alcohol into the air.  He became aggressive when the usher took his dog. He even attacked “them” when he was handcuffed.  He remembers hitting the police officer.

6. The Tribunal accepts the police record that the applicant swore at the staff of the theatre as well as passing pedestrians, kicked a police officer and was intoxicated and aggressive. 

7. The applicant said that he has been off alcohol for two years while in prison and immigration detention and has an understanding of how alcohol has ruined his life.  He said that if he has an opportunity to correct what he has done, he would. He knows that he is a good person and is looking for a place to die.  He said that there is not much of a future for him on “the outside”.

8. Dr Anderson, psychiatrist, prepared two reports about the applicant in 2014.  In the report dated 24 August 2014, Dr Anderson diagnosed alcohol use disorder and substance induced neurocognitive disorder, which impact the applicant in the domains of attention, concentration, memory and executive functioning which persist beyond the period of alcohol intoxication and withdrawal. The Tribunal accepts that the applicant’s alcohol abuse has impacted on the applicant’s cognitive functioning.

9. Although the applicant expressed some intention to improve his conduct, the Tribunal gives that evidence little weight given his lengthy criminal history and abuse of alcohol.  The applicant said that in about 2012 a doctor was trying to get him into a house near the stadium to help him with his alcohol abuse. He said that he did not book into rehab as Dr Anderson recommended in 2014. He got the report for Court.  At the time, he was focussed on his date for going to Court. The applicant has had opportunities to address his alcohol abuse but outside prison or immigration detention where he cannot access alcohol, he has not pursued those opportunities.  He told the Tribunal that he had not undertaken any programs in relation to his drinking since 2014. He said that he generally was not worrying about alcohol. The applicant said that he cannot say he will not drink when released. He would like to put himself into rehab, but would have to stop associating with the people he used to hang around with.

10. The Tribunal gives significant weight to the primary consideration under the Direction, the protection of the Australian community from criminal conduct.  The applicant has a long criminal history, which includes a number of violent offences, including against a police officer.  The sentences of the court, set out above, reflect the seriousness of the offences, including most recently in 2014.  The applicant’s own evidence demonstrates that he has little regard for the law if it impinges upon what he wants to do. His consumption of alcohol exacerbates that attitude. The Tribunal considers that there is little likelihood that his abuse of alcohol will not resume when he is released from immigration detention.  The Tribunal considers that it is likely that the applicant will engage in criminal conduct similar to that he has already engaged in, including assaulting others, including police officers. 

11. The applicant has a god-son in Australia who is now about eight years old.  That child also has an older sister who is about 10 years old.  Both parents of those children wrote supportive references for the applicant in March 2015.  Both have known him for periods of more than 15 years.  The Tribunal does not accept that the applicant has had an ongoing close relationship or meaningful contact with his god-son or the older child for some years, including since he was imprisoned in 2014.  The applicant provided two photographs which included the children, one of which was apparently with their parents.  He provided no photograph of himself and the children. If there were a close relationship with either of the children, the Tribunal would have expected that photographs or correspondence, such as birthday cards, would have been provided. The Tribunal does not accept that separation from the applicant would impact at all upon either child.  In any event, he could communicate with them by telephone or the internet if he wished.

12. For those reasons, the Tribunal gives little weight to the consideration “the best interests of minor children in Australia”. 

13. Given the applicant’s lengthy and serious criminal history, including his imprisonment on two occasions, the Tribunal gives significant weight to the consideration, “expectations of the Australian community”.

14. The Tribunal gives some weight to the consideration “strength, nature and duration of ties” to Australia. It accepts that he has worked in Australia at various times until about 2007.  The Tribunal takes into account the references from the applicant’s friends.  It accepts that they have found him a generous and good-hearted person. It accepts that their expression of future support for the applicant is genuine. However, the reality is that they have not been able to provide support in the past to enable the applicant to change his life so that he did not abuse alcohol or other drugs or commit many offences, including offences that resulted in his being imprisoned.  The Tribunal does not accept that the applicant has regular or frequent contact with the friends who wrote references for him.  He told the Tribunal he had not spoken to “any of these people” since he had been in gaol. However, well-meaning the applicant’s friends, his future conduct depends upon him. 

15. The applicant told the Tribunal that he has not talked to his family for years and does not need them.  They are not going to help him because he has “done time for crime”. The applicant’s evidence was somewhat confusing, but the Tribunal understood him to say that he has one sister and three married brothers in Australia and at least two sisters and a brother in New Zealand. Some of them have children.  His father is also in New Zealand.

16. The applicant claimed that he had various jobs since he was in Australia, as listed above, however, he also told the Tribunal that he had been on Newstart since he had been in Australia until 2010 and then received the disability pension.

17. Taking into account all those matters, the Tribunal gives some weight to the consideration “strength, nature and duration of ties”.

18. The final relevant consideration in this case is the extent of impediments if removed. The Tribunal accepts that the applicant’s age and health are impediments to his working.  It does not accept his claim that he can easily get a job in Australia.  He has been on a disability pension for several years.  However, the Tribunal finds that he will be able to access similar social and medical benefits if he returns to New Zealand. Although he has been away from New Zealand for about 26 years, he spent the first almost 24 years there and faces no language or culture barriers.  The Tribunal gives this consideration little weight.

19. The Tribunal does not accept that the consideration of the impact on victims is relevant in this case.  There is no evidence before it of any impact of a decision in relation to revoking the decision to cancel applicant’s visa on a victim of the applicant’s criminal behaviour, or the family of such a victim.

    CONCLUSION

20. For the above reasons, the considerations in favour of not revoking the decision to cancel the applicant’s visa significantly outweigh the considerations in favour of revoking the decision to cancel the applicant’s visa.  The Tribunal affirms the decision under review.

I certify that the preceding 34 (thirty -four) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

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

Associate

Dated: 31 January 2017

Date(s) of hearing:	8 August 2016 and 9 August 2016
Applicant:	In person
Solicitors for the Respondent:	Australian Government Solicitor