Terry Taniela and Minister for Immigration, Multicultural Affairs and Citizenship
[2013] AATA 632
[2013] AATA 632
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/2922
Re
Terry Taniela
APPLICANT
And
Minister for Immigration, Multicultural Affairs and Citizenship
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Date 4 September 2013 Place Sydney The decision under review is affirmed.
.......................[SGD].................................................
Senior Member A K Britton
CATCHWORDS
MIGRATION — Visa cancellation — Character test — Ministerial Direction 55 — Consideration of the applicant’s criminal history — Consideration of the applicant’s ties to Australia — Consideration of the applicant’s risk of reoffending
LEGISLATION
Migration Act 1958 (Cth) ss 499, 501(2); 501(7)
CASES
Re Visa Cancellation Applicant and Minister for Immigration and Citizenship [2011] AATA 690
SECONDARY MATERIALS
Direction No. 55, Migration Act 1958, Direction under section 499, Visa refusal and cancellation under s 501
REASONS FOR DECISION
Senior Member A K Britton
4 September 2013
Mr Terry Taniela is a 23-year-old New Zealand citizen who has lived in Australia since he was six years of age. He is serving a ten year custodial sentence for armed robbery and associated offences and becomes eligible for parole in March 2014. In May of this year a delegate of the Minister for Immigration and Citizenship cancelled the visa held by Mr Taniela, a “Special Category (temporary)” visa. Mr Taniela challenges that decision and seeks review by the Administrative Appeals Tribunal.
The power to cancel Mr Taniela’s visa may be exercised because he does not pass the “character test” on account of having a “substantial criminal record” (ss 501(2), 501(7)(c) of the Migration Act 1958 (Cth) (the Act)). The central question to be decided in this review is whether that power should be exercised in the circumstances of this case. In making that decision “Direction No. 55, Migration Act 1958, Direction under section 499, Visa refusal and cancellation under s 501” (the Direction), must be taken into account (s 499(2A)).
Exercising the discretion to cancel the visa
The objectives together with other parts of the Direction provide a framework within which the task of deciding whether to exercise the discretion to cancel a person’s visa must be exercised. They state:
6.1 Objectives
1The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
2Under section 501 of the Act, a person may be refused a visa if the person does not satisfy the decision-maker that they pass the character test. A person may have their visa cancelled 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 they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.
3The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act to refuse to grant a visa to, or to cancel the visa of, a person who does not satisfy the Minister that the person passes the character test. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
The Direction states 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” (para 6.2(1)) and sets out six principles “of critical importance in furthering that objective” (para 6.2(1)) which must inform the exercise of the discretion (para 7(1)):
6.3 Principles
1Australia has a sovereign right to determine whether non-citizens who are of character concern 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.
2A 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.
3In 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.
4Australia 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.
5Australia 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.
6The 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.
The Direction lists a number of “primary” and “other” considerations that must be taken into account where relevant (pars 7(1)(a) and 8(1)). The Direction instructs that “primary” considerations should generally be given greater weight than the “other” considerations (para 8(4)).
Three of the four primary considerations are relevant 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 any minor children in Australia.
PRIMARY CONSIDERATIONS
Primary Consideration 1: Protection of the Australian Community
The Direction instructs that when considering the protection of the Australian community, decision-makers should have regard to the principle that (para 9.1(1)):
… 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.
The Direction instructs that in the assessment of the “protection of the Australian community” consideration be given to (para 9.1(2)):
(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.
The nature and seriousness of the person’s conduct to date
The Direction sets out a number of factors that must be taken into account in assessing the seriousness and nature of the criminal offending (para 9.1.1(1)):
(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)…
(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)…
(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)...
Nature of the offences
First set of offences
On 3 February 2003 Mr Taniela, then aged 22 together with four young men arrived at a service station in the early hours of the morning. One of the party approached the service station attendant with a shopping trolley handlebar and jumped the counter. Money and cigarettes were stolen. When one of the tills was found to be empty, the attendant, who had been forced onto the ground (not by Mr Taniela), was kicked in the shoulder by one of Mr Taniela’s co-offenders. The party fled.
A couple of hours later in the company of two other young men, Mr Taniela entered a newsagency. One of Mr Taniela’s co-offenders approached the shopkeeper with a shopping trolley handlebar, threatened and directed her to open the safe and till. Mr Taniela and a co-offender grabbed $270 from the till and fled. A customer who attempted to intervene was also threatened. Mr Taniela and his co-offenders were arrested later that day.
Mr Taniela was convicted of two counts of robbery in company and sentenced to four years imprisonment (two years non-parole).
Mr Taniela was released from custody in February 2006. Nineteen months later while still on parole, Mr Taniela, who was then 27 years of age, and three young men attempted an armed robbery of a bank. All were armed: two carried firearms, (Mr Taniela a sawn-off shotgun), two carried crow bars. One of Mr Taniela’s co-offenders levelled his shotgun at staff. Staff were threatened and ordered to open the safe. When the offenders who were then behind the service counter realised that police had been alerted they fled and locked themselves into an ATM “bunker room”. In an effort to escape, they fired shots into the perimeter wall, which faced a pedestrian footpath. Two pedestrians were wounded and taken to hospital. Each made a fully recovery.
Mr Taniela was convicted of the following offences and given a total sentence of ten years and three months (six years and three months non–parole):
(a)Robbery while armed with dangerous weapon
(b)Possess unauthorised prohibited firearm
(c)Discharge loaded arms in company with intent resist apprehension
(d)Possess shortened firearm (not pistol) without authority
(e)Fire firearm on or near public place
(f)Steal motor vehicle.
Warning of consequences of further offending
In a letter dated 26 April 2007 the Department notified Mr Taniela that consideration was being given to cancelling his Australian visa and invited him to provide any information he believed relevant to that decision. In reply, Mr Taniela wrote that he had lived in Australia for the past 20 years and could not think of a “better place to be educated and employed in”. He acknowledged that he had not been a very good role model for his younger siblings and emphasised he had been working to change. He wrote:
I am aware that the crime was [sic] committed was a mistake and I wish that I had never been a participant however that was not the case and I have served my sentence in prison with a remainder 12 months on probation. I am truly sorry for the offence that I committed and wholeheartedly agree with the punishment that was given to me however if I am deported the punishment will be cruel and unfair.
My entire family live [sic] in Australia and I have no immediate or extended family in New Zealand which is why I am writing you this letter to ask you to reconsider your decision and let me continue living here in Australia with my family and friends.
In these proceedings Mr Taniela stated that he could not recall receiving notice that consideration was being given to his visa being cancelled. He said that the letter in reply had been written by his sister because she was a better writer but conceded that he had probably read it.
The risk to the Australian community should Mr Taniela commit further offences or engage in other serious conduct
The Direction instructs (para 9.1.2):
1In 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 re-offending; 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).
Background to the offending
Mr Taniela left school in Year 9 and left home shortly after, aged 15. His relationship with his father was strained. Mr Taniela considered his father to be authoritarian and unnecessarily strict.
In the intervening period between leaving school and about 12 months prior to his first offence Mr Taniela was in reasonably regular employment. During this period he lived with various members of his extended family and maintained contact with his parents.
Mr Taniela claims that when he was 17 years of age he took up gambling, initially poker machines, and by the time he was 22 his gambling was “out of control”. On his account at the time of the first set of offences he was spending all his wages on funding his gambling habit and was in debt for several thousand dollars. He claims he met “the boys” involved in the newsagency robbery in 2002 and by the time of the offence was spending every day in their company at a gaming centre.
Shortly after being released from custody in February 2006, Mr Taniela obtained regular employment with a waterproofing business. There is conflicting evidence about the duration of that employment however it appears that he stopped work in about mid-2007. In the intervening period between being released from and re-entering custody in November 2007, Mr Taniela lived with various members of his extended family.
According to Mr Taniela shortly before his release from custody in 2006 he tried “Ice” (methamphetamine) a couple of times. In mid-2007, he tried Ice again and within a couple of months had developed a two to three gram per day habit. Around that time he started “hanging out” with people he had met in prison and became unemployed. On his account he had been using Ice continuously and not sleeping for several days when a friend suggested a bank robbery to make money, and he “stupidly agreed”.
Mr Taniela testified that he committed the second set of offences because he was “off his head” and had no money. He conceded that at the time he was aware that there was a risk he would be deported if involved in any further offending.
Efforts at education and rehabilitation in prison
While in custody Mr Taniela has been well behaved and involved in only two minor infractions of prison rules. In addition he has also undertaken a number of vocational and rehabilitation courses (see Annexure A to these reasons).
Throughout both periods in custody Mr Taniela has been in regular employment and is reported to be reliable and have a strong work ethic. In October 2012, his work supervisor commended Mr Taniela:
In the seven years I have been here I have never seen the kitchen more organised and I can clearly say that kitchen has never been cleaner.
Terry has a great approach to work and has always turned up seven days a week. He is the first in the kitchen and the last one to leave.
While reports of Mr Taniela’s conduct during both periods in custody have been favourable the evidence suggests that there has been some improvement during the current period. In a report prepared in November 2005 parole officer Janine-Marie Johnson wrote that though during his first period in custody Mr Taniela had not posed any management problems. In her opinion however review of his file suggested that he “did not push himself” and “was only coasting”.
Shortly after the commencement of his current sentence, Mr Taniela was appointed to the role of Islander delegate. He describes that role as involving keeping the peace among Islander inmates and providing support to younger inmates. Mr Taniela held a minimum-security classification until the decision was made to cancel his visa in May 2013. In the six months prior to that decision he had been granted weekend leave on about six occasions under the sponsorship of his sister, Lee-Ann Taniela. During those periods of leave he complied with all relevant rules and his behaviour was reported to be positive.
According to Mr Taniela while in prison he has renewed his Christian faith and attended prison services. He said he intends to continue his involvement with his Church on his release. Mr Taniela’s mother is a devout Christian and active in her Church.
Drug and alcohol dependence
Mr Taniela states that he has not taken illicit drugs during his current period in custody. From time to time while in custody he has been tested for illicit drug use. All tests have been clear.
He claims that apart from a short period of experimentation as a teenager he has never used alcohol or marijuana.
Post-release plans
Mr Taniela claims that if released into the Australian community he intends to reside in the family home with his parents. Mr Taniela’s sister, Ms Lee-Anne Taniela, her husband and four children, live next door.
According to Mr Taniela’s mother, Mrs Ngametuangaro Poa, during a prison visit in 2009 her son announced that he intended to live in the family home when released from prison. She said she was initially sceptical but now believes her son to be genuine. She believes he has changed and is now willing to abide by his parent’s rules.
Both parents testified that Mr Taniela is welcome to live with them as long as he chooses. Mr Taniela’s father, Hikitoa Kalopulu, stated that he recognises that he had probably been too strict and made mistakes as a parent when Mr Taniela was a teenager. He claims that he is now wiser and more patient and, in his opinion, better equipped to parent and support his son. Mr Kalopulu also claims that he has learnt to control his temper and moderate his drinking, which he concedes had been a problem in the past. His wife supports that claim.
Mrs Poa stated that she and her husband have learned a great deal about parenting since Mr Taniela last lived with the family as a teenager (Mr Taniela is the couple’s eldest child). Mrs Poa has recently been appointed to work in a high school in community liaison, dealing with troubled students and liaising with their parents. She claims that through this role she is now familiar with the range of services available to support her son. She says she believes his stated commitment not to reoffend is genuine and she has noticed a real change in his behaviour. She has observed him to be more humble and respectful.
Mr Kalopulu admitted in these proceedings that he enjoys gambling and probably spends about $80 and a couple of hours per week doing so. When questioned in these proceedings he said he would be prepared to stop gambling if this would assist his son.
Mr Taniela has been offered employment on his release by a former employer, Aquastop Waterproofing. Mr Taniela was employed by Aquastop after his release from custody in 2006. Mr Taniela states that on release he intends to work hard to repay his family for the significant support they have provided him to date. He claims that he has no intention of resuming gambling or his association with anti-social peers. He says he now appreciates the value and significance of family.
Expert opinion on Mr Taniela’s risk of reoffending
At the request of his solicitors Mr Taniela was assessed by forensic psychologist, Miss Caroline Hare, in July 2013 for the purpose of providing an opinion about his risk of recidivism. Miss Hare prepared a written report dated 2 August 2013 and also gave oral evidence.
In assessing Mr Taniela’s risk of recidivism Miss Hare used the Historical-Clinical-Risk Management-20 protocol (HCR-20), which she described as a “guided clinical judgement approach to violence risk assessment”.
Applying the HCR-20 Miss Hare identified three historical risk factors as definitely present: early maladjustment (problems at home and school while a teenager resulting in Mr Taniela leaving home at a relatively young age); prior supervision failure (Mr Taniela’s second set of offences were committed while on parole); and gambling. She identified six further historical risk factors which she considered to be possibly or less seriously present: previous violence; young age at first offence; relationship instability (Mr Taniela has not been involved in any serious “live-in relationship”, although as noted by Miss Hare he has limited opportunity to do so given much of his adult life has been spent in prison); employment problems (despite a history of some stable employment, Miss Hare noted that Mr Taniela had been unemployed prior to both sets of offences); substance abuse problems (Miss Hare recorded that while Mr Taniela does not have a long-standing substance abuse problem nonetheless he had been using illicit drugs for about six months before the second set of offences); use of weapons.
Miss Hare explained that the HCR-20 recognises that clinical risk factors can operate to moderate the effects of historical factors. She identified the following to be possibly, or less seriously present in Mr Taniela’s case:
·Lack of insight — Miss Hare noted that despite acknowledging that association with negative peers, absence of employment and not seeking help placed him at risk of reoffending he engaged in these behaviours after release from prison in 2006
·Impulsivity — Miss Hare noted that while no recent history of impulsivity Mr Taniela’s coping strategies were yet to be tested in the community
·Unresponsiveness to treatment — Miss Hare considered that Mr Taniela’s reengagement in gambling after receiving some treatment might indicate a degree of unresponsiveness to treatment.
Miss Hare identified a number of factors which in her opinion were protective against Mr Taniela reoffending:
·Pro social attitudes — Mr Taniela did not seek to attribute blame to others for his offending; there was no evidence that he held anti-authoritarian attitudes, was callous or lacked empathy
·Achievable plans for the future — Mr Taniela has developed specific plans for accommodation and employment on release; was open to engaging in future intervention recommendations; and had worked on rebuilding relationships with family members while in custody
·Personal support network — Mr Taniela enjoyed the full support of his extensive family and had maintained contact with two pro-social friends while in custody
·Resilient mental health and absence of psychopathic personality traits.
In Miss Hare’s opinion the triggers for Mr Taniela’s reoffending included: engaging in substance abuse and gambling and getting into debt as a result; and, associating with anti-social peers. In her opinion the presence of these risk factors increased the likelihood of Mr Taniela committing a violent offence for financial gain. Miss Hare was of the opinion that the prospect of Mr Taniela successfully reintegrating within the Australian community was positive noting that he been offered stable accommodation and employment and had an extensive pro-social familial support network. She also noted that while in custody Mr Taniela has been involved in a number of programs designed to address his risk factors and had developed a more positive relationship with his family. She believed his plans for the future to be positive and achievable.
In oral evidence she stated that of Mr Taniela’s risk factors, illicit drug use was probably of least concern given Mr Taniela’s relative youth at the time and short history of illicit drug use.
Miss Hare concluded that Mr Taniela currently poses a low to moderate risk of reoffending. According to Miss Hare, if Mr Taniela had family support, was employed, did not engage in gambling or use illicit drugs, the risk of Mr Taniela reoffending would probably be low.
Other assessments of Mr Taniela’s risk of reoffending
Tendered in these proceedings were a number of reports prepared by the NSW Office of Probation and Parole. The authors of the reports prepared before the second set of offences were generally optimistic about the risk of Mr Taniela reoffending, noting that he had expressed remorse and victim empathy and had insight into the triggers for his offending: unemployment, anti-social peers and gambling.
In a pre-sentence report prepared following the second set of offences, clinical psychologist Mr Terry Smith stated that Mr Taniela’s prognosis turned on him completing some form of drug management program. Mr Smith was of the opinion that a return to his previous living situation represented a powerful trigger for reoffending and was not fully appreciated by Mr Taniela. Mr Smith wrote that Mr Taniela had demonstrated that he can live for sustained period without offending but required counselling support and supervision because his self-control and behavioural limits break down. In his opinion, there is a risk of relapse unless Mr Taniela achieves the goals he has set himself: reconciling his relationship with his father, obtaining employment and changing his lifestyle.
On sentencing Mr Taniela for the first set of offences in 2004, Ellis J, noting that he had expressed remorse and pleaded guilty, concluded that he had good prospects of rehabilitation and was unlikely to reoffend. On sentencing Mr Taniela five years later for the second set of offences, Ellis J was far less confident that Mr Taniela would not reoffend.
During his current period in custody Mr Taniela’s application to undertake the Violent Offenders Therapeutic program run by NSW Corrective Services was rejected. The stated reason for that decision was: Mr Taniela’s low risk of reoffending measured on the LSI-R (an authoritative actuarial tool used to assess recidivism and need for offender treatment), limited history of violent convictions and no history of violent institutional misconduct.
Findings and conclusions
The primary consideration — “protection of the Australian community” — requires an evaluation of the nature and seriousness of Mr Taniela’s conduct and the risk to the Australian community should he reoffend. The Direction emphasises the Government’s commitment “to protecting the Australian community from harm as a result of criminal activity … by non-citizens” and states that a non-citizen who has committed a serious offence should generally expect to forfeit the privilege of staying in Australia (para 6.3(3)).
There can be no argument that the offences for which Mr Taniela has been convicted are of a serious nature, as reflected in the lengthy sentences imposed. All involved violence. The second set of offences, involving the use of firearms, was more serious than the first. Adding to their degree of seriousness was the fact that they were committed while Mr Taniela was on parole and after having been warned that further offending might result in his visa being cancelled.
The more difficult question is the risk posed to the Australian community should Mr Taniela reoffend. This requires a two-step assessment — an evaluation of the nature of the harm that might be caused to individuals and/or the community should Mr Taniela reoffend and an assessment of the likelihood of him reoffending. That evaluation must be undertaken in light of the principles set out in the Direction.
While the evidence does not suggest that Mr Taniela is a person with a propensity to use violence nonetheless he has participated in three armed robberies and in the most recent was armed himself. That no one suffered any serious physical injury was fortuitous, especially given the circumstances: four young men entering a bank with loaded shotguns and firing numerous shots into a pedestrian street during business hours. Irrespective of his intentions, if offences of that type were to be repeated, the safety and possibly the lives of shopkeepers, customers and members of public would be at risk.
The central issue between the parties is the likelihood of Mr Taniela reoffending: Mr Taniela contends the risk is low; the Minister, relying on the opinion of Miss Hare, contends that the risk is better characterised as low to medium.
The parties agree that as identified by Miss Hare, Mr Taniela has the advantage of a number of factors protective against reoffending: the strong support he can expect to receive from his large pro-social family together with stable accommodation and employment. Added to this are the commendable steps Mr Taniela has undertaken during his current period in custody to build on the rehabilitation and vocational training already received.
The Minister however argues that little has changed, pointing out that Mr Taniela had the benefit of these protective factors when he reoffended in 2007. Further he points out that despite the statement made by Mr Taniela during his first period in custody that he understood his triggers for relapse, within 12 months of release he had resumed gambling and associating with anti-social peers.
While a powerful argument I do not agree there has been no change since Mr Taniela committed the second set of offences. First, while he has always enjoyed strong family support, in my opinion his family and in particular, his mother and sister Lee-Anne, are now better placed to provide support and guidance. Both are impressive women who since Mr Taniela’s last offence have given serious and intelligent consideration to how they could best support Mr Taniela. Second, the poor relationship with his father, which has consistently been nominated as a risk factor for further offending, has been repaired (see for example, the report of Mr Smith, 29 June 2009, p 7). Third, Mr Taniela has made genuine efforts to build on the rehabilitation undertaken during his first period of custody. I accept as argued for Mr Taniela that he probably no longer suffers from the “youthful arrogance” which led him to believe that that he could remain out of trouble without the assistance of family and others. Fourth, I think it likely that Mr Taniela has matured and is now more committed to remain in the community than he was in 2007. Importantly he has given careful consideration to the factors that might trigger reoffending and developed strategies to reduce that risk. Fifth, the reports of his conduct in prison indicate that during his current sentence he has matured and is no longer “coasting” as suggested by some earlier reports about his approach to his first term in custody.
Despite these positive developments, I think that Miss Hare’s assessment of Mr Taniela posing a low to moderate risk of reoffending is probably correct. I agree with her opinion that the risk would probably be low if Mr Taniela does not resume gambling or illicit drug use. While there is no evidence that he has engaged in gambling in custody nonetheless he has a long history of gambling in the community.
In my opinion there is a real and significant risk that Mr Taniela will reoffend. This Consideration weighs heavily in favour of the cancellation of his visa.
Primary Consideration 2: Strength, duration and nature of the applicant’s ties to Australia
The Direction requires that regard be had to (para 9.2(1)):
(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 Taniela was six years old when he arrived in Australia. He committed his first offence when he was 22 years of age. About a third of Mr Taniela’s time in Australia has been spent in custody.
Mr Taniela has significant family ties with Australia. His immediate family has lived here for over a quarter of a century and three generations of his family are now resident in Australia. The strength of those ties is demonstrated by the statements in support of his application to remain in Australia, provided by twelve members of his family. They reveal that not only does Mr Taniela have a large extended family in Australia but one that is close and prepared to support him on his release. The actions of his sister, Lee-Ann, in transporting Mr Taniela between Oberon and Sydney, on those weekends he was granted leave from custody, with two young children in trail (a round trip of over five hours) is one of the many examples of the strength of the family ties.
This Consideration weighs strongly against cancelling Mr Taniela’s visa.
Primary Consideration 3: Best interests of minor children
This Consideration requires evaluation of whether the decision to cancel Mr Taniela’s visa is, or is not, in the best interest of any minor child who might be affected by that decision (para 9.3(1)). The Direction instructs that where relevant the matters listed in para 9.3(4) must be taken into account and the best interests of each child should be given individual consideration.
Mr Taniela has no children of his own. He contends that the following five children would be affected if he were to be deported and it would be in their best interests that he remain in Australia:
His younger sister aged 15
The children of his sister, Lee-Anne: a nephew aged 10 (Child 1), a niece aged seven (Child 2); a nephew aged three (Child 3); and, a niece aged 10 months (Child 4).
(Orders have made under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) prohibiting the publication of the names of any children who are mentioned in these proceedings).
Mr Taniela has never played a parental role in the lives of any of the above children and there is no suggestion that he will do so in the future. All children have parents and come from loving homes. There is no evidence to suggest that any of the children have been adversely affected by Mr Taniela’s criminal activity, or that he has mistreated them in any way.
Mr Taniela has had limited contact with each child. He has never lived with his younger sister having left the parental home around the time she was born. They have maintained some contact through phone calls, prison visits, and more recently, during the periods Mr Taniela was released on weekend leave.
Mr Taniela has probably had slightly more direct physical contact in recent years with his nieces and nephews. He lived with the two eldest children for several months before re-entering custody in November 2007 and resided with them (and their younger siblings) on weekend leave from prison. While in custody he has had some phone contact with all children apart from the baby.
According to Ms Lee-Anne Taniela, her brother and children are very close and he always asks after them. On her account he shares a very special bond with Child 2 and “spoils her rotten”. She observed that when living with them on weekend leave her brother was very attentive to the children: playing with them and assisting with their care.
In a letter to the Department of Immigration Mr Taniela’s 15 year old sister wrote that it would “break her heart” if her brother were to return to New Zealand. Ms Lee-Anne Taniela stated that her two eldest children were very sad when informed of the possibility of their uncle returning to New Zealand.
While the contact between Mr Taniela and the children has been limited I accept that if he were to be deported his younger sister and Child 1 and 2 would feel a sense of loss. Nonetheless given their limited contact and because he has not, and is unlikely to, play a parental type role it is unlikely that any of the children would be affected to any great extent if his visa were to be cancelled. In reaching that conclusion I note that the effects of separation could be ameliorated to a degree through contact being maintained through social media and ‘Skype’. It is possible that Mr Taniela may also be able to have some direct contact with his youngest sister, if she were to accompany her mother on visits to New Zealand.
In my opinion it is very likely that his mother and Ms Lee-Anne Taniela would be devastated if Mr Taniela were to return to New Zealand. I accept as stated by Ms Poa that, despite her concerns for her son’s well-being, she would probably not follow him to New Zealand. She is now closely tied to Australia and has a teenage daughter in need of care and support. She is very likely to be torn by that decision. There is a possibility that the grief experienced by Ms Poa and Ms Lee-Anne Taniela might impact on their emotional well-being and, in the short term, their capacity to parent. If that were to occur each of the five children might be adversely affected by a decision to cancel Mr Taniela’s visa.
In my opinion the removal of Mr Taniela from Australia would have a limited impact on each of the five children. This Consideration favours Mr Taniela but not to any great extent.
OTHER CONSIDERATIONS
Clause 10 of the Direction provides a non-exhaustive list of “other considerations” that must be taken into account, if relevant.
Effect of visa cancellation on Mr Taniela’s immediate family in Australia
The Direction requires consideration of, where relevant, (para 10(1)(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
Mr Taniela’s parents and six siblings all reside in, and are permanents residents of, Australia. A number also hold Australian citizenship.
As noted the members of the family are close. Each maintained some contact with Mr Taniela throughout the periods he has spent in prison. Each provided letters in support of Mr Taniela’s application to remain in Australia.
The evidence given by his parents revealed that they are very attached to their son. While disappointed by their son’s criminal conduct they have stood by and supported him. Mr Kalopulu and Mr Taniela have repaired their relationship and I accept that Mr Kalopulu was sincere in his statement that he misses his son and looks forward to making up lost time. It is likely that Ms Poa would be greatly distressed if her son were to be deported.
I accept that all family members would feel a deep sense of loss if Mr Taniela were to be deported, particularly his parents and sister, Lee-Anne.
This Consideration strongly weighs against cancellation.
The extent of any impediments Mr Taniela may face if removed from Australia
This Consideration requires assessment of any impediment Mr Taniela may face if removed to New Zealand, in establishing himself and maintaining basic living standards (in the context of what is generally available to other New Zealand citizens).
I accept as claimed by Mr Taniela’s parents that they no longer have any family members or close friends resident in New Zealand. This is not surprising given that they have not lived in New Zealand for over 25 years and many members of their extended family are now resident in Australia.
Given that Mr Taniela has spent most of his life in Australia and cannot look to the support of family or friends, I accept that in the short term he will find the task of establishing himself in New Zealand to be difficult. I agree with Miss Hare’s opinion that without support Mr Taniela is more likely to reoffend and his psychological well-being and quality of life may suffer.
It is unlikely that Mr Taniela would face any significant impediments in maintaining basic living standards, in New Zealand. He is young and in excellent health, he will not face any language barriers or significant cultural barriers. In addition he will have available the social services available to other New Zealand citizens.
Mr Taniela is assisted by this Consideration, but not to any great extent.
Impact on Australian business interests
It is argued for Mr Taniela that the cancellation of his visa will impact on Australian business interests because his skills and good work ethic would be lost. While I accept that Mr Taniela has some employment skills and a good work ethic, there is no evidence to suggest that he would be working in an area where those skills and qualities are in short supply. It does not follow, as I understand Mr Taniela to contend, that because a former employer has offered employment that the business would be adversely affected if his visa were to be cancelled.
Mr Taniela is not assisted by this Consideration.
Impact of non-cancellation on Australian community and victims of criminal behaviour
There is no evidence to suggest that Mr Taniela has had contact with the victims of his crimes or that any are aware that he is facing the prospect of being deported to New Zealand. From the available evidence I am unable to make any finding about the impact a decision not to cancel Mr Taniela’s visa is likely to have on the victims of his crimes.
I agree with the submission made for the Minister that if Mr Taniela were to remain in Australia and reoffend this would have an adverse impact on the Australian community.
SHOULD THE POWER TO CANCEL MR TANIELA’S VISA BE EXERCISED?
The exercise of the power to cancel Mr Taniela’s visa requires all relevant Considerations to be taken into account and a determination made about whether the risk of further harm to the Australian community by Mr Taniela is “unacceptable”. That decision must be informed by, among other things, the principles contained in the Direction, which include that remaining in Australia is a privilege conferred in the expectation that the non-citizen will not cause or threaten harm to individuals, and, a non-citizen who has committed a serious crime should generally forfeit the privilege of staying in Australia.
The Direction instructs that in exercising the power to cancel a visa I must take into account any relevant Consideration (and generally give greater weight to primary Considerations), and determine whether the risk of future harm by Mr Taniela is “unacceptable”, and conduct a “balancing exercise”. As the Tribunal (Justice Downes, President, and Senior Member McCabe) observed in Re Visa Cancellation Applicant and Minister for Immigration and Citizenship [2011] AATA 690 at [49]:
The balancing process contemplated by the Direction is not a simple mechanical exercise. One does not reach a conclusion by assigning values to particular considerations and tallying the differences. Beginning with each of the primary considerations — and without forgetting other considerations that are generally regarded as being of lesser weight — we must ask ourselves: what is the preferable decision in this case?
While these comments were made in relation to a decision to cancel a visa made under the predecessor to the current Direction, the task, and its inherent difficulty, remains the same.
Of the relevant Considerations and in my opinion the most significant in Mr Taniela’s case, are the protection of the Australian community, his ties to Australia and the impact of visa cancellation on his immediate family. Also relevant but in my opinion of lesser weight are the best interests of the five minor children discussed above and the impediments Mr Taniela may suffer on return to New Zealand. All but the first weigh against the exercise of the discretion to cancel Mr Taniela’s visa. In combination those factors which favour Mr Taniela weigh heavily against the exercise of the discretion to cancel his visa.
Mr Taniela has spent all his adult life and most of his childhood in Australia. He has strong ties to the Australian community. Without the support his family can offer in Australia he may find it difficult to establish himself if he were to be returned to New Zealand. These factors in combination raise the question of whether consistent with para 6.3(4) of the Direction he should be afforded a “higher level of tolerance” notwithstanding his risk of reoffending.
Relying on para 6.3(3) of the Direction, the Minister contends that the harm that would be caused if Mr Taniela were to reoffend is so serious that any risk of similar conduct in the future is “unacceptable”. Para 6.3(3) states:
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.
Mr Taniela is not a hardened or vicious criminal. Apart from the offences for which he has been convicted there is no history of violence. Nonetheless by participating in an armed robbery in company he put at risk the safety and lives of a number of people. That no one was seriously injured during the robbery is evidence of luck, not of the absence of risk of harm.
The evidence reveals that Mr Taniela has taken a number of positive steps to reduce his risk of reoffending. He enjoys strong family support and has guaranteed accommodation and employment on release. He has demonstrated that he can live in the community for significant periods without offending. In recognition of his good conduct in prison he has been granted weekend release and the lowest security rating. Nonetheless even after allowing for these and other protective factors, in Miss Hare’s opinion, which I share, Mr Taniela poses a low to moderate risk of reoffending.
Were it not for the use of arms in the subject robberies I might conclude that the Considerations favourable to Mr Taniela identified above are sufficient to justify a decision not to exercise the discretion to cancel his visa and afford his risk of reoffending a higher level of tolerance. However Mr Taniela has now been involved on three separate occasions in robberies in company, and, on the most recent occasion he was carrying a loaded shotgun. That robbery was committed while on parole and after being warned of the consequences of reoffending and serving a significant custodial sentence. It goes without saying that the type of harm that members of the Australian community might suffer if conduct of that type were to be repeated would be extremely serious.
Given the nature of the harm and the significant risk of Mr Taniela reoffending I have decided that he poses an “unacceptable” risk. The primary Consideration of the protection of the Australian community in this case outweighs those Considerations that favour Mr Taniela’s visa not being cancelled. For these reasons I have concluded that the preferable decision is to cancel Mr Taniela’s visa and affirm the decision under review.
I certify that the preceding 99 (ninety-nine) paragraphs are a true copy of the reasons for the decision herein of Senior member A K Britton ........................[SGD]................................................
Associate
Dated 4 September 2013
Date(s) of hearing 12 and 14 August 2013 Solicitors for the Applicant Kinslor Prince Lawyers Solicitors for the Respondent Clayton Utz ANNEXURE A
Education and Rehabilitation Courses undertaken by Mr Taniela during the first period of incarceration:
(a)Certificate - Gambling Prevention Program
(b)Certificate - Attendance at Gamblers Anonymous
(c)Certificate - Raising Awareness for Change
(d)Certificate - Gambling Awareness Program
(e)Certificate - Transforming Conflict Program
(f)Certificate - The Guranang Life Challenge Program YAOP)
(g)Certificate - Positive Lifestyle Program
(h)Certificate -Jobs for the Boys (Career Ambition Program)
(i)Certificate II in Engineering - Production (completed Welding and thermal cutting)
(j)Statement of Attainment - Workshop Workplace Hygiene (Food Handlers)
(k)Statement of Attainment - Responsible Conduct of Gambling
(l)Statement of Attainment - HIV/Health Promotion Workshop
(m)Certificate - OH & S Induction
(n)Statement of Attainment - Responsible Service of Alcohol
Education and Rehabilitation Courses undertaken by Mr Taniela during the second period of incarceration:
(a)Alcohol and Other Drugs Program
(b)Enough is Enough Workshop
(c)Alcoholics Anonymous/Narcotics Anonymous Program
(d)Best Bet Program
(e)Getting Smart Program
(f)Positive Lifestyle Program for Groups
(g)9069 Access to Work and Training Occupational Health and Safety course
(h)Certificate I in Information Technology Computer Skills
(i)Certificate II in Hospitality (Kitchen Operations) (catering)
(j)Certificate II in Hospitality (Kitchen Operations) (barista)
(k)Chainsaw Operations Level 2 course
(l)Barber Hygiene and Safety course
Key Legal Topics
Areas of Law
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Immigration & Refugee Law
Legal Concepts
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Proportionality
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Protection of Australian Community
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Risk Assessment
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