Tihema and Minister for Immigration and Citizenship

[2010] AATA 1002

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 1002

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/4262

GENERAL ADMINISTRATIVE DIVISION		)
Re		Tipuna TIHEMA

Applicant

And Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal Mr R P Handley, Deputy President

Date14 December 2010

PlaceSydney

Decision The Tribunal sets aside the decision under review and substitutes a decision that Mr Tihema’s visa should not be cancelled.

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

Mr R P Handley

Deputy President

CATCHWORDS

IMMIGRATION AND CITIZENSHIP - 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 – other considerations - family ties, the nature and extent of any relationships – person’s age – links to the country to which they would be removed – hardship likely to be experienced by the person or their immediate family members – whether the person has been formally advised in the past of conduct that brought the person within deportation provisions

RELEVANT ACT

Migration Act 1958 (Cth): s 501

CITATIONS

Re Puafisi and Minister for Immigration and Citizenship [2009] AATA 689

OTHER AUTHORITIES

Direction [No.41] – Visa Refusal and Cancellation under s 501

REASONS FOR DECISION

14 December 2010 Mr R P Handley, Deputy President

1.      The applicant Mr Tihema has applied to the Tribunal for review of a decision of a delegate of the Minister for Immigration and Citizenship (the Minister) to cancel Mr Tihema’s visa on the basis that he does not pass the character test.

BACKGROUND

2.      Mr Tihema was born in New Zealand in June 1987 and is a New Zealand citizen.  He first arrived in Australia on 28 September 2000, aged 13, on a temporary visa, returning to New Zealand on 13 October 2000.  Upon his next arrival in Australia with his father, sister and brother on 23 April 2001, he was granted a Class TY subclass 444 Special Category (Temporary) visa, which permits residence in Australia indefinitely, and he has since remained in Australia.

3.      Mr Tihema’s first criminal conviction as an adult was on 20 December 2005 for two counts of ‘take or be carried in a [stolen] conveyance’, for which he was sentenced to periodic detention for a total of six months commencing on 30 December 2005 and expiring on 7 June 2006.  On 15 March 2006, after his having breached the periodic detention order, the order was revoked and he served the remaining two months and 24 days in prison.

4.      On 5 June 2006, Mr Tihema was sentenced to a total cumulative term of six months’ imprisonment expiring on 4 December 2006 for the offences of ‘shoplifting’, ‘being in possession of goods suspected to have been stolen’, ‘take or be carried in a [stolen] conveyance’, and two counts of ‘maliciously destroy property’.  This was confirmed on appeal to the District Court of NSW on 20 June 2006.

5.      On 24 September 2007, Mr Tihema was sentenced to six months’ imprisonment for ‘shoplifting’.

6.      On 30 November 2007, the Department of Immigration and Citizenship (the Department) wrote to Mr Tihema warning him that any further criminal convictions could result in consideration being given to the cancellation of his visa.

7.      On 10 March 2008, Mr Tihema was sentenced to 9 days’ imprisonment for breach of Drug Court conditions.  On 31 August 2009 (after having been convicted in his absence on 6 August 2009), he was sentenced to 12 months’ imprisonment, suspended on his entering into a bond, for the offence of ‘affray’ committed in February 2009.  He then committed three further shoplifting offences on 31 October 2009 of which he was convicted on 2 February 2010 and for which he was sentenced to one month in prison.  These convictions also constituted a breach of his bond.  On 30 March 2010, on his appeal against sentence for both the affray and shoplifting convictions, Mr Tihema was sentenced to a total of 12 months’ imprisonment with a non-parole period of five months ending on 27 June 2010.  He was released on parole on 28 June 2010.

8.      By letter dated 29 April 2010, the Department notified Mr Tihema of its intention to consider cancellation of his visa and inviting him to respond.  Mr Tihema filled out a personal details form dated 7 May 2010.  By letters dated 5 May 2010, 25 June 2010 and 9 July 2010, Mr Tihema was invited to make further submissions in relation to additional information received by the Department but no further submissions were made.

9.      On 30 September 2010, a delegate of the Minister notified Mr Tihema of the cancellation of his visa and he was taken into immigration detention at Villawood.  On 1 October 2010, Mr Tihema applied to the Tribunal for review of the delegate’s decision.

10.     The Tribunal was provided with the following material in support of Mr Tihema’s application:

·a statement from Mr Tihema, dated 22 November 2010 together with his letter dated 17 November 2010,

·a statutory declaration from his mother, Nephi Tu dated 29 November 2010 together with her letter of support dated 21 October 2010,

·a statement from his father, Michael Tihema dated 26 November 2010 together with his letter of support dated 18 November 2010,

·a statement from his sister, Carlene Tihema, dated 27 November 2010

·an undated letter of support from his girlfriend, Stacey Gherm,

·a letter of support from his aunt, Patricia Masila, dated 2 November 2010,

·a statutory declaration from Nadine Bel-Castro, a community/welfare support worker, dated 29 November 2010,

·a report from Rima Nasr, forensic psychologist, dated 29 November 2010,

·a letter of support from Louie Kiss, Michael Tihema’s supervisor at work, dated 27 October 2010, and

·a Country Advice for New Zealand prepared by the Refugee Review Tribunal about criminal gangs.

11.     Mr Tihema, Ms Tu, Mr Michael Tihema, Ms Tihema, and Ms Stacey Gherm attended the hearing and gave evidence.  The other witnesses gave evidence by conference telephone.

RELEVANT LAW AND POLICY

12. Section 501(2) of the Migration Act1958 (Cth) (the Act) 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) 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.

13.     Mr Tihema has been sentenced to a term of imprisonment of 12 months.  Thus, he does not pass the character test.  It was therefore open to the Minister to cancel Mr Tihema’s visa.  In exercising this discretion, the decision-maker must apply Direction [no. 41] - Visa Refusal and Cancellation under section 501 of the Act (Direction No 41).  Direction No 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.

14.     The primary considerations in Direction No 41 are set out in paragraph 10(1):

10.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).

15.     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 No 41 paragraph 11(2), they should be given less weight than the ‘primary’ considerations.  Those ‘other’ considerations are discussed below.

primary considerations

16.     The ‘primary’ considerations relevant in Mr Tihema’s case are the protection of the Australian community, the fact that he was a minor when he began living in Australia, and the length of time that he was ordinarily resident in Australia prior to engaging in criminal activity.  These considerations are addressed below.

the protection of the australian community

17.     Direction No 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

18.     With regard to the seriousness of Mr Tihema’s conduct, the Tribunal notes that paragraph 10.1.1(1) states:

Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community.

19.     Paragraph 10.1.1(3) 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.

20.     The Tribunal has been provided with a copy of the transcript of Magistrate Keady’s comments in sentencing Mr Tihema for affray on 31 August 2009.  Mr Tihema was convicted of this offence in absentia on 6 August 2010.  Magistrate Keady said Mr Tihema had “a horrible criminal record going back a long way with matters mostly of property offences, drug offences”.  He did, however, note that while more recent convictions included damage to property, the affray conviction “would appear to be your first significant matter involving violence”.  On the appeal against sentence in the District Court, Judge Sides noted that the CCTV footage showed that:

… the other person [involved in the affray] was the one who initiated it.  He is the one who shaped up and took off his shirt and the appellant then became involved in the fight.

21.     The Judge said that the shoplifting offences in respect of which Mr Tihema also appealed against sentence were serious, involving stealing:

… Blu-Ray videos … from three separate shops on the one day and the total of the goods came to $570 and that led to revocation of the bond.

22.     The Judge noted that Mr Tihema had undertaken a rehabilitation program from March 2008 to January 2009 “but returned to abuse liquor and commit these offences”.  Nevertheless, because of Mr Tihema’s “age and the fact that he has done some drug and alcohol programs in custody and his acknowledgement that he is an alcoholic, the Court is minded to find special circumstances”.  The Judge confirmed the 12-month sentence, but set aside the original non-parole period of 10 months and substituted a period of five months.

23.     The most serious offence for which Mr Tihema has been convicted is affray and I note Magistrate Keady’s’ comment that this was his first offence involving violence and Judge Sides’ comment that it was initiated by the other person involved.  Otherwise, Mr Tihema’s convictions are predominantly for theft/shoplifting and two counts of ‘maliciously destroy property’ on 5 June 2006.  These other convictions are for less serious offences in terms of the spectrum of offences, as reflected in the sentences handed down, referred to above. 

24. Thus, Mr Tihema’s only conviction involving violence, for affray, arose out of a fight in which he became involved that was not initiated by him. Pursuant to s 93C of the Crimes Act 1900 (NSW), the maximum sentence for affray is imprisonment for 10 years. The fact that Magistrate Keady sentenced Mr Tihema to 12 months’ imprisonment, suspended for 12 months, indicates that he considered the offence was at the less serious end of the scale, and I note that, on appeal, Judges Sides reduced the non-parole period from 10 months to five months.

The risk that the conduct may be repeated

25.     With regard to the risk that the conduct may be repeated, paragraph 10.1.2 of Direction No 41 requires that consideration be given to Mr Tihema’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. 

26.     The NSW Department of Corrective Services record for Mr Tihema shows five breaches of prison rules between May and October 2006 for ‘possess drug’, ‘smoke non-smoke area’, ‘fail to comply with corrective centre routine’, ‘fail urine test’, and ‘fail to comply with corrective centre routine’.  The ‘Immigration Report’, dated 17 June 2010, prepared for the Department by the NSW Probation and Parole Service states, with reference to the five months Mr Tihema spent in prison in the first half of 2010:

Incidents

Inquiries reveal that there are no incidents of custodial misconduct recorded against Mr Tihema, he has progressed to C2 classification, which confirms that he complies with correctional centre routine.

Urine Analysis

A search of the records indicates that there is one random urinalysis in relation to the inmate and the result is recorded with nothing being detected.

Educational/Rehabilitation Courses Undertaken in Prison

During his current custodial sentence, the duration of which is five months, the inmate has not completed any courses.  Mr Tihema indicated that he has sought to engage with Drug and Alcohol staff for support and counselling during his time in custody, however assistance was not offered because of the short time he had available on his sentence and the availability of such programs has been limited.

Employment in Prison

Records indicate that Mr Tihema is currently performing the role of worker in the upholstery shop at John Morony Correctional Centre.  Contact with supervising staff confirms that the inmate is considered to be reliable, and works consistently with minimal supervision.  He also relates well to co-workers and is respectful to officers and supervising staff.

…

Conclusion

… Mr Tihema stated that his experience in custody has changed his perspective about life, and that he intends to make a concerted effort to plan and work towards a better future for himself.  Mr Tihema further indicated his intention to engage post release with local community resources to obtain support in addressing drug and alcohol issues which were problems for him in the past.

…

27.     The Tribunal has been provided with a ‘Psychologist Report’, dated 29 November 2010, prepared by a forensic psychologist, Rima Nasr, who also gave evidence at the hearing.  Ms Nasr undertook a psychological assessment of Mr Tihema on 25 November 2010 for the purpose of these proceedings.  She said Mr Tihema was cooperative but vague and limited in his responses and seemed quite depressed.  However, he was honest and forthcoming and not manipulative in his responses to her questions. 

28.     Ms Nasr stated that Mr Tihema told her that he had not used “substances” since being taken into immigration detention.  While prior to this he had reduced his cannabis and alcohol intake, he was still using these substances on a regular basis, and thus, substance use “appears to be a risk factor”.  However, he said he is now motivated to stop smoking cannabis and acknowledged that he needs treatment and the resources to guard against a relapse.  Mr Tihema also said that he maintained “contact with antisocial peers who also abuse substances”.  Ms Nasr commented that Mr Tihema’s criminal history “appears to be associated with antisocial peer involvement”.

29.     Ms Nasr said Mr Tihema:

… presents as a young immature man, who has displayed antisocial characteristics from a young age … His offending behaviour seems more a function of his immaturity, poor role modelling and substance use as opposed to an entrenched personality disorder.

She said that, in the past, he has tended to bottle things up and not talk about his problems, instead using substances to help him deal with such matters.  He needs treatment to assist him with problem-solving, although he does now have some insight into his tendency to make decisions without much forethought or consideration for others, and he does appear to be able to utilise self-control in maintaining appropriate behaviour.  A lack of anger control is not a characteristic of his behaviour.

30.     Ms Nasr said that to manage the risk of recidivism and, particularly, that associated with substance use and antisocial peer association, “Mr Tihema will require intense case management, psychological intervention and support” in the medium to long term by which she said she means probably 12 months’ treatment with ongoing follow up afterwards.  He has indicated that he is willing to engage in such intervention, and she discussed with him the New Horizons program identified for him by his mother which he agreed would be helpful.

31.     At the hearing, Mr Tihema said there were no disciplinary charges laid against him while he was at the John Morony Correctional Centre.  While there, he tried to get his “head straight” and decided he must stop what he was doing previously, which was hanging around with the wrong people, running amuck and getting up to no good.  He is “sick of getting into trouble and going to gaol”. 

32.     I asked Mr Tihema about the drug and alcohol rehabilitation program he undertook in 2008/2009 (referred to by Judge Sides in his sentencing remarks on 30 March 2010).  He said he had found out about this while in prison.  It was a nine‑month residential program with three months in Coffs Harbour and six months in Sydney.  He found the program helpful but, after completing it, he started seeing the same people again and got into trouble.  Mr Tihema said he had enquired about undertaking a further drug and alcohol rehabilitation program while at the John Morony Correctional Centre but none was available.

33.     I also asked Mr Tihema why he had not undertaken a drug and alcohol program after being released from prison on 28 June 2010 as he indicated he would in discussion with the probation and parole officer at the John Morony Correctional Centre.  Mr Tihema said that when he was released from prison, he immediately started working again for the builder by whom he was previously employed before his imprisonment.  Mr Tihema was working at least 10 hours a day on six days a week and was concerned that if he spoke to his employer about taking time off to undertake a drug and alcohol program he might lose his job.  I note Mr Jefferis’ submission, for Mr Tihema, that finding employment on being released from was Mr Tihema’s first priority and especially employment that he enjoyed.  Moreover, there was a period of only 12 weeks between his release from prison and his being taken into immigration detention.

34.     Mr Tihema’s mother, Ms Tu, said she knows his employer and has spoken with him about her son’s problems with drugs and alcohol of which he was previously unaware.  The employer, who has said he would re-employ Mr Tihema, indicated that he would allow Mr Tihema time off to undertake a drug and alcohol rehabilitation program.

35.     Mr Tihema said he does not have any contact with those with whom he previously associated.  They get him into trouble and he does want to “hang out with them”.  He acknowledged having seen them once or twice by chance at the Westfield shopping centre at Blacktown but, apart from saying hello, he had tried to get away from them.  He last smoked cannabis when offered this by a friend with whom he was out one night.  Mr Tihema said he was “bored and had nothing else to do”. 

36.     Mr Tihema said he has now given thought to his future.  If he is released into the community, he will live with his father and hopes to study at TAFE for a builder’s licence.  His girlfriend, Ms Gherm, indicated that they have discussed this and she will support him through his studies.  His previous employer would like Mr Tihema to continue working for him, perhaps with a view to Mr Tihema ultimately taking over the business.  They also have discussed his studying at TAFE.

37.     Ms Tu said she will actively support her son.  She moved to Tweed Heads from Hornsby in late 2009 to undertake a two‑year full-time Certificate IV program in Community Services at TAFE.  However, she returned to Sydney after about 10 months in Tweed Heads to provide support for her family, and Murwillumbah TAFE, where she was studying, has allowed her to do the last two units for this year by correspondence.  Ms Tu said she is working casually at the Women’s Crisis Centre at Central and living in Hornsby again. 

38.     Ms Tu acknowledged that as a mother, she has let her son down.  However, whereas previously she used to generally only have contact with him when he got into trouble, they are now communicating regularly by phone and she has been to see him four or five times in Villawood.  Ms Tu said she wants her son “to address his issues” and her friend Nadine Bel-Castro has offered to help.  Ms Bel-Castro is a former flatmate of Ms Tu’s who is a welfare support worker for the Salvation Army, where she has worked for two years, and a mental health community worker for the non-profit community support service New Horizons, where she has worked for a year. 

39.     Ms Bel-Castro, who provided a statutory declaration dated 29 November 2010, and gave evidence by telephone, said that she is currently assisting Mr Tihema in a voluntary capacity since he is not a client of either of the community services for whom she works.  She has been to see him twice at Villawood and has agreed to refer him to appropriate support services that he can access out of normal working hours so that he can maintain full-time employment.  She will try and enrol Mr Tihema as a client with the New Horizons Transitional Support Program through which he can receive intensive case management and counselling to assist him in building a support network and meeting basic needs, for example, assisting him in participating in a drug and alcohol rehabilitation program. 

40.     I am satisfied from the evidence that Mr Tihema has a supportive family, separately, both his father and mother, and that his mother, with the assistance of Ms Bel-Castro, has taken the necessary preliminary steps to provide Mr Tihema with the support that he will need to avoid the problems that have led to recent convictions.  I also note Ms Nasr’s assessment that Mr Tihema now has some insight into his past behaviour and has acknowledged that he needs treatment and further resources to guard against a further relapse.  Given Mr Tihema’s evidence of his wanting to avoid the problems he has experienced in the past, which he also discussed with Ms Nasr, and the evidence of his family at the hearing – that of his mother, father, aunt and sister – of his greater maturity, greater openness and willingness to communicate, I am satisfied there is a reasonable prospect that with appropriate treatment and support he will not repeat his past misconduct. 

41.     I am mindful of the fact that his record of compliance with past judicial orders has been poor – for example, breach of a periodic detention order in March 2006 and, on 31 October 2009, breach of the conditions of what was initially a 12‑month suspended sentence for affray.  However, I am hopeful that with greater maturity and awareness of the consequences of his actions, and bearing in mind his recent good record while in prison, he will be able to follow through with a new commitment to turning his life around.  These proceedings should have made him acutely aware that any future misconduct is likely to lead to a reconsideration of his visa status in Australia and possible cancellation of his visa.

42.     My overall impression is that Mr Tihema does not represent a serious threat to the Australian community.  While in general terms his criminal record and past misconduct favour the cancellation of his visa, in my view, they do not rank at the serious end of the spectrum and there is reason to have optimism that he will not reoffend.

Whether a Minor on Beginning to Live in Australia

43.     The second primary consideration relevant in Mr Tihema’s case relates to his being a minor when he first commenced residence in Australia.  Direction No 41, paragraph 10.2(1) states:

If the person was a minor when they began living in Australia and spent their formative years in Australia, thereby increasing the likelihood of establishment of greater ties and linkages to the Australian community, this is to be given favourable consideration.

44.     Mr Tihema arrived with his father, sister and brother and began living in Australia in April 2001, when he was aged 13 years and 10 months.  He has not returned to New Zealand since and has now lived in Australia for 10 years.  I accept the evidence that all his close family are in Australia, excepting his older sister, Jewelle, who returned to New Zealand about a year ago and with whom he has had no contact since.  The evidence from Mr Tihema’s family in Australia indicates a good level of support for him.

45.     Thus, I am satisfied that Mr Tihema has close ties to the Australian community as a result of his having lived here for the past 10 years and because of the presence of his immediate family here.  This primary consideration therefore weighs against cancellation of Mr Tihema’s visa.

Length of Time Ordinarily Resident

46.     The third primary consideration relevant in Mr Tihema’s case - the length of time he has been ordinarily resident in Australia – is further explained in paragraph 10.3(1) of Direction No 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”. 

47.     Mr Tihema first offended in late 2005 after he had been resident in Australia for four and a half years, and he was charged with a series of offences in the period following, culminating in the affray conviction on 31 August 2009.  I also note that he was asked to leave high school because of his truancy in Year 9. 

48.     Because of the relatively short period before Mr Tihema began ‘getting into trouble’ after arriving in Australia, this consideration should not be treated as a consideration in his favour.  Rather it should be regarded as a neutral factor: Re Puafisi and Minister for Immigration and Citizenship [2009] AATA 689, at [39] to [41].

OTHER CONSIDERATIONS

49.     As noted above, Direction No 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 Tihema’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 Tihema and his immediate family members in Australia, his level of education, and whether he has been formally warned in the past that his visa might be cancelled because of his criminal conduct.

50.     The oral evidence at the hearing and the letters of support from Mr Tihema’s family members clearly shows that he has strong family ties in Australia.  In particular, his parents, while separated, have both been very supportive of Mr Tihema in the recent period.  His mother, Ms Tu has, with Ms Bel-Castro’s help, made the necessary preliminary arrangements for him to have intensive case worker support if he is released into the community, and both his mother and his father are obviously aware of the consequences for their son if there is any repetition of his past misconduct and have made a commitment to providing him with support if he is released into the community. 

51.     I also accept that that if Mr Tihema is returned to New Zealand this will cause both Mr Tihema and his immediate family significant hardship by reason of their separation.  It will be more difficult to maintain their relationship if he is in New Zealand although I accept that there is no reason for them not being able to maintain contact by telephone and email and to visit him from time to time in New Zealand.

52.     Ms Nasr gave evidence that if Mr Tihema had to relocate to New Zealand with no supportive intimate relationships, he will be alone and vulnerable, his mood could quickly destabilise, and he could become depressed and a risk to himself.  Moreover, his extended family in New Zealand are reportedly involved in crime and would present negative role models.

53.     I also note that Mr Tihema has had no contact with his extended family in New Zealand.  The evidence of Ms Tu and her sister Ms Masila is that their uncles and cousins in the Gisborne area of the east coast of the North Island of New Zealand are involved in the Black Power and Mongrel Mob criminal gangs.  Mr Tihema belongs to the Ngati Porou Maori tribe and as a young man of that tribe, especially one without employment and a place to live, he would be vulnerable to being recruited and made to ‘prospect’ – to commit crimes - for senior gang members.  Ms Tu and Ms Masila, whose family comes from Gisborne, and Mr Michael Tihema, whose family comes from Hastings, gave evidence that the majority of Maori men in their area are gang members.  Gangs are operating throughout New Zealand.  Ms Tu said she has uncles who are presidents of the local chapters of the Black Power and Mongrel Mob gangs.  Members of her family have been arrested, charged and convicted of gang related crime.  Ms Masila noted that her brother, who was easily influenced, was recruited into the Black Power gang.  Ms Tu said one of the reasons she came to Australia was to get away from the criminal gangs and have a better life. 

54.     The Country Advice for New Zealand on criminal gangs prepared by the Refugee Review Tribunal notes that the Black Power and Mongrel Mob gangs are the most prominent gangs in New Zealand and are ethnically based, comprising predominantly Maori and Polynesian members.  The New Zealand Police are reported as stating that the gangs are involved “in serious violence, selling and distributing drugs, possessing firearms and offensive weapons, and using intimidation and threatening tactics in pursuit of their criminal activities”.

55.     I am satisfied from the evidence that if Mr Tihema returns to New Zealand, there is risk of his being recruited into a criminal gang.

56.     Apart from his immediate family, Mr Tihema has a supportive girlfriend, Ms Gherm, who spoke of their having discussed their future together.  She also spoke of supporting him in any rehabilitation programs he undertakes and in his studying for a builder’s licence.  Ms Gherm said that if Mr Tihema has to return to New Zealand, she would be unable to relocate there because of her family and work commitments (she is a hairdresser) in Australia.  She said: “It would be devastating for Tipuna and I if our relationship had to end should he be deported back to New Zealand”.

57.     I note that Mr Tihema is young – 23 years of age - and, apparently, strong and healthy.  It appears that his education has suffered because of his truancy at school.  As I have noted, he has now said he would like to study at TAFE for his builder’s licence.  

58.     Finally, I note that Mr Tihema received a formal warning from the Department by letter dated 30 November 2007, when he was aged 20.  Mr Jefferis pointed out that in the immediate period, Mr Tihema was trying to address his drug and alcohol problem, undertaking a nine‑month rehabilitation program.  While he later lapsed and reoffended, I accept that there is evidence of his having tried to address his problems at that time.

59.     Weighing up the relevant ‘primary considerations’, I am satisfied Mr Tihema does not represent a serious threat to the Australian community, and there is a reasonable prospect that with the support of his family and the intensive case management proposed for him, he will not repeat his former misconduct.  With regard to the second primary consideration, the fact that he began living in Australia as a minor favours his visa not being cancelled, and the third primary consideration, having regard to the length of time between his becoming resident in Australia and his first misconduct, is, as I have said, a neutral factor. 

60.     With regard to the ‘other considerations’, I accept that Mr Tihema’s return to New Zealand would cause hardship to Mr Tihema and his immediate family and his girlfriend in Australia.  I also note, in particular, Ms Nasr’s evidence that if he is isolated and without family support, his mental health could be adversely affected.  Mr Tihema’s family have a reasonably founded concern that if he had to return to New Zealand, where he has no immediate means of support, being a Maori of the Ngati Porou tribe, he would be recruited into one of the criminal gangs.  With regard to the formal warning received from the Department on 30 November 2007, in my view, while he did not ultimately heed the warning, he is now acutely aware that any further misconduct will result in further consideration being given to the cancellation of his visa.

61. My overall conclusion is that the discretion in s 501(2) of the Act should be exercised in Mr Tihema’s favour and that his visa should not be cancelled.

Decision

62.     The Tribunal sets aside the decision under review and substitutes a decision that Mr Tihema’s visa should not be cancelled.

I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President.

Signed: ...................[sgd]........................................................
  A Veness, Associate

Date of Hearing  6 and 7 December 2010
Date of Decision  14 December 2010
Counsel for the Applicant         Mr R M Jefferis
Solicitor for the Applicant          Ms M O’Donnell, Legal Aid Commission of NSW
Solicitor for the Respondent     Mr J Pinder, DLA Phillips Fox