Tuala and Minister for Immigration and Border Protection (Migration)

Tuala and Minister for Immigration and Border Protection (Migration) [2017] AATA 877 (8 June 2017)
Division:GENERAL DIVISION
File Number(s): 2017/1697
Re:Mark Tuala
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Senior Member A Poljak
Date:8 June 2017
Place:Sydney

The decision under review is affirmed.
.....................................[sgd]...................................
Senior Member A Poljak
CATCHWORDS
MIGRATION – mandatory cancellation – character test – armed robbery with offensive weapon – substantial criminal record – Direction 65 – protection of the Australian community – seriousness and nature of the relevant conduct – the risk conduct may be repeated – best interests of minor children in Australia – expectations of Australian community – decision affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 499, 500, 501, 501CA
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
Senior Member A Poljak
8 June 2017
INTRODUCTION

Mr Tuala (“the applicant”) is a citizen of New Zealand who first arrived in Australia at age nine on 24 April 2006, as a holder of a Special Category (temporary) visa. Since that time, he has been granted numerous subsequent Special Category (temporary) visas. The most recent visa was granted on 14 August 2014.
On 30 March 2016, the applicant was convicted in Parramatta District Court of six counts of robbery armed with offensive weapon, for which he was sentenced to imprisonment for four years, five months and 10 days (aggregate). In sentencing, the Parramatta District Court also took into account one count of robbery armed with offensive weapon and four counts of robbery armed with offensive weapon (attempt).
The offences involved various robberies and attempted robberies between 8 October 2014 and 24 October 2014.
On 25 November 2016, the Supreme Court of New South Wales Court of Criminal Appeal set aside the sentence imposed by the Parramatta District Court, and re-sentenced the applicant to six years’ imprisonment (aggregate).
On 8 December 2016, a delegate of the Minister for Immigration and Border Protection (“the Minister”), notified the applicant that his visa had been cancelled under section 501(3A) of the Migration Act 1958 (Cth) (“the Act”) because he failed to pass the character test as a result of his substantial criminal record (“the mandatory cancellation”).
Section 501(3A) of the Act is a mandatory cancellation power. In regards to these proceedings, the Minister cancelled the applicant’s Visa because the Minister was satisfied that:
·The applicant did not pass the character test, because he had a substantial criminal record under s 501(6)(a) on the basis that he had been sentenced to a term of imprisonment of 12 months or more pursuant to s 501(7) of the Act; and
·The applicant was serving a full-time sentence of imprisonment in a custodial institution because he had committed an offence or offences against Australian law.
Section 501CA(4) of the Act provides that the Minister may revoke a mandatory cancellation decision if the Minister is satisfied that the person passes the character test as defined by section 501; or that there is another reason why the original decision should be revoked.
The applicant made a request for revocation of the mandatory cancellation and on 14 March 2017, a delegate of the Minister, after consideration of representations made, decided not to revoke the mandatory cancellation. This is the decision under review before the Tribunal (“the decision”).
The power of the Tribunal to review the decision not to revoke the decision to cancel the applicant’s visa is provided by section 500. Under subsection 499(1) the Minister has given written directions as to the exercise of the power to review the decision. Subsection 499(2A) provides that these directions must be complied with. The relevant direction is Direction No.65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA which commenced on 22 December 2014 (“the Direction”).
The issues before the Tribunal are whether the applicant meets the character test as defined in s 501(6) of the Act, and if he does not, whether there is another reason why the mandatory cancellation should be revoked (s 501CA(4)(b)(ii)).
CHARACTER TEST
The applicant has been sentenced to six years’ imprisonment (aggregate). It is not in dispute that the applicant has a substantial criminal record in accordance with section 501(7)(c) of the Act and therefore fails the character test. I must therefore consider whether there is another reason to revoke the original cancellation decision. This is a discretionary power.
Paragraph 7 of the Direction sets out how the discretion is to be exercised. Informed by the principles in paragraph 6.3, I must take into account the considerations in Part C, in order to determine whether to revoke the mandatory cancellation of the applicant’s visa.
Under the heading General Guidance (paragraph 6.2), the Direction provides in part:
(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. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
…
In paragraph 6.3 the Minister sets out the principles that provide the framework within which the task of exercising the discretion should be approached. These principles are:
(1)Australia 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.
(2)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 or elsewhere.
(3)A 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.
(4)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.
(5)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 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.
(6)Australia 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.
(7)The 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 a non-citizen’s visa should be cancelled, or their visa application refused.
The Direction, at paragraph 8, requires the decision-maker to take into account the primary and other considerations relevant to the individual case. Primary considerations should generally be given greater weight than the other considerations and one or more primary considerations may outweigh other primary considerations.
The three primary considerations which the Tribunal must take into account are set out in paragraph 13(2) of the Direction as follows:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian Community.
PRIMARY CONSIDERATION (A) – PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
In determining this primary consideration, I note that I must have regard to matters set out in paragraph 13.1, namely:
(1)When considering protection of the Australian community, decision-makers should have regard to the principle 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…
(2)Decision-makers should also give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
(a) The nature and seriousness of the Applicant's conduct to date
Paragraph 13.1.1 of the Direction sets out factors that I must have regard to when considering the nature and seriousness of the applicant’s criminal offending or other serious conduct.
The offences, for which the applicant was ultimately convicted and sentenced, involved various robberies and attempted robberies which occurred between 8 October 2014 and 24 October 2014. The offences were committed with two co-offenders. The particular circumstances of the offences are detailed in the sentencing remarks of the District Court on 30 March 2016, which I have carefully read and considered.
The sentencing judge said (at page 38-39):
The offences in this case were committed in what can only be described as a frenzy of criminal activity on the part of the three offenders over a relatively limited period of time given the number of offences but certainly the objective seriousness of the offences…was of a significant order. Weapons were used, there were threats made, in some instances threats of death or of serious harm, and there were quite significant proceeds from a number of the offences.
The sentencing judge acknowledged that on a number of occasions, the applicant remained in the background and was not the person holding the gun (cap gun sprayed to look like a real weapon) or wielding the crowbar, but found that the applicant became involved with “increasing enthusiasm”. The applicant ultimately “assumed the role of co-offender in terms of the carrying and using of the crowbar as a means of gaining entry” to premises. The sentencing judge commented that the applicant “seem[ed] to have adopted that role without hesitation and therefore to some extent the level of involvement on his part is of a quite serious kind”.
Although the offences were committed over a relatively limited period of time, the sheer number of the offences and the cumulative effect are further aggravating features.
The seriousness of the applicant’s conduct is reinforced by the sentences imposed on him. Sentences involving terms of imprisonment are a last resort in the sentencing hierarchy and accordingly, any such sentence must be viewed as a reflection of the seriousness of the offence involved. In the present case, the applicant was initially sentenced to four years, five months and 10 days imprisonment (aggregate), which was later set aside by the NSW Supreme Court of Criminal Appeal and increased to six years imprisonment (aggregate).
Having regard to the factors relevant to the present matter, I am satisfied that the applicant’s offences are very serious as they involved robbery, the use of an offensive weapon and threats of violence. The very serious nature of the applicant’s criminal offending weighs very heavily against the exercise of the discretion to revoke the cancellation of the applicant’s visa.
(b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
In assessing whether the applicant represents an unacceptable risk of harm to the Australian community, regard must be had to paragraph 13.1.2 of the Direction. This paragraph provides that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. I must have regard to, cumulatively, the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the applicant re-offending.
The applicant provided a written statement dated 27 April 2017, in which he claims to be rehabilitated. He speaks of his remorse and shame and that he now takes full responsibility for his actions. He says in his statement that “[a]t the time of my criminal offence I was desperate for money, Mum and I were working for the family but having a teenager’s mentality it wasn’t enough and didn’t want to work hard wanted that easy money”. At hearing, the applicant reiterated how sorry he was and that he would never re-offend. He said that he was just hanging out with the wrong crowd.
The evidence however, suggests that the applicant has not addressed his offending behaviour and that there is a significant risk that he will reoffend.
Significantly, the applicant’s behaviour while in immigration detention raises serious doubts as to his claimed rehabilitation. The Villawood Immigration Detention Centre incident records record the applicant as an alleged offender in two incidents where detainees were seriously assaulted. At hearing, the applicant denied his involvement in the incidents and said that he was “just there” but didn’t do anything. He said that he may once again have been hanging out with the wrong crowd but has now learned his lesson. He said he decided in February of this year (2017) that he would “stay out of trouble”. I find this evidence very troubling. Despite the applicant’s claim that he has reformed, it appears that he has recently sought out the “wrong crowd” and involved himself in further violent incidents.
It is also troubling that the sentencing judge’s remarks about the applicant’s prospects of rehabilitation were premised on the expectation that the applicant would be receptive to rehabilitation. The sentencing judge noted that the applicant needed to enter programs of counselling to build skills in consequential thinking, emotional regulation and anger management. The applicant confirmed at hearing that he has not undertaken any form of counselling.
The evidence shows that alcohol abuse, gambling and the applicant’s susceptibility to peer pressure were factors giving rise to the applicant’s criminal offending. There is no evidence before me to show that the applicant has addressed any of these factors.
The applicant provided to the Tribunal numerous statements and letters from his family members, St Christopher’s Catholic Church, Leauvaa Samoan Community, St Mary’s Catholic Church, St Therese Parish Community and from the applicant’s rugby coach and teacher at Ashcroft High School, all of which I have read and considered.
The letters speak of the applicant’s good character and the support the applicant has from his family and local community. However, I note that the applicant had the support of his family and local community at the time of his criminal offending. It plainly did little to deter him.
Having regard to all of the evidence before me and the applicant’s record of criminally offending, I am satisfied that the nature of the harm to the Australian community, should the applicant engage in further criminal and/or serious conduct of the nature of that in which he has engaged in the past, would be serious, and perhaps extremely serious. A repetition of the offences would certainly involve a degree of financial, physical and/or psychological harm to members of the Australian community. Additionally, repetition of offences such as armed robbery would cause feelings of insecurity in the Australian community.
This primary consideration weighs heavily against a decision that the applicant’s visa not be cancelled.
PRIMARY CONSIDERATION (B) – THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
The applicant is the oldest of four siblings and does not want to be separated from his family. In his written statement dated 27 April 2017, the applicant claims that his parents are ageing, and as the older sibling he will play a larger role in raising his two younger siblings who are six and eight years.
It is acknowledged by the Minister that the best interests of the applicant’s minor siblings weighs in favour of revocation. However, the Minister contends that this consideration should be given limited weight in circumstances where the applicant does not have parental responsibility for the children and is unlikely to play a positive parental role.
Having particular regard to paragraph 13.2(4)(a)-(h) of the Direction, there are a number of factors that must be considered, where relevant, in determining the best interests of minor children. The Direction states that less weight should generally be given when the relationship is non-parental; the extent to which the non-citizen is likely to play a positive parental role in the future; and the negative impact of the non-citizen’s prior conduct and any likely future conduct on the minor children.
Having considered all the evidence before me and the relevant factors identified in the Direction, I find that this primary consideration has some weight in favour of revocation.
PRIMARY CONSIDERATION (C) – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 13.3(1) provides:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
Clearly the applicant has not met the expectation that as a non-citizen he will obey the laws of this country.
In making the Direction, the Minister has made it clear 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” (at paragraph 13.1(1)). The principles to be applied, as set out in paragraph 6.3, state that the right of a non-citizen to be able to come to or remain in Australia is a privilege conferred in the expectation that he or she will be law-abiding.
Relevant to this matter, I have had particular regard to clause 6.3(5) of the Direction that states in part, ‘...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.’ The applicant first arrived in Australia with his family in 2006, aged nine years old. As he reached his adult years, the applicant very quickly commenced criminally offending. He was 18 years old at the time. The crimes which he committed involved armed robberies, the use of weapons, threatening and causing harm and financial loss to members of the Australian community. Given the nature, and the seriousness, of his criminal conduct, I am satisfied that the Australian community’s expectation would be that the applicant’s visa should remain cancelled.

This primary consideration weighs heavily against a decision to revoke the decision to cancel the applicant’s visa.
OTHER RELEVANT CONSIDERATIONS SET OUT IN DIRECION NO. 65
Paragraph 14 of the Direction provides for other considerations relevant to deciding whether the cancellation of the applicant’s visa should be revoked include the strength, nature and duration of his ties to Australia and the extent of any impediments if the applicant were removed from Australia.
Other considerations such as impact on victims, international non-refoulement obligations and the impact on Australian business interests are not relevant considerations in these proceedings.
Strength, nature and duration of ties to Australia
Paragraph 14.2(1) of the Direction sets out two main factors to be considered in assessing the strength, nature and duration of a person’s ties to Australia:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen 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 non-citizen has spent contributing positively to the Australian community; and
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or persons who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
As already stated the applicant arrived in Australia in 2006 at the age of nine years old and has resided continuously in Australia since that date. He came to Australia with his family and spent the latter part of his childhood here.
At hearing the applicant’s mother described her desire for the applicant to remain in Australia. She said the applicant was born into a loving caring family. This was also evident by the support the applicant had from his family at hearing. It is obvious that the applicant’s family have high hopes for him in the future and have a strong desire for him to stay in Australia. Mrs Tuala said that she would do anything for her son and just wanted to support him and care for him. I have no doubt that Mrs Tuala loves her son dearly and wants to help him succeed in life. However, despite the emotional distress that the family would suffer if the applicant were to go back to New Zealand, there is no evidence before me to suggest that his departure would cause significant harm. I do however acknowledge that the applicant’s immediate family reside in Australia and I accept that he has strong family ties to Australia.
Additionally, I acknowledge the words of support and praise contained in the numerous statements and letters provided to the Tribunal from St Christopher’s Catholic Church, Leauvaa Samoan Community, St Mary’s Catholic Church, St Therese Parish Community and from the applicant’s rugby coach and teacher at Ashcroft High School.
While the applicant’s strength, nature and duration of ties to Australia favour the applicant, it is significantly outweighed by the relevant primary considerations.
Extent of impediments if removed
I note that the applicant has concerns about returning to New Zealand because he claims that he has no family or social support in New Zealand. However, the applicant did give evidence at hearing that he has a number of good friends in New Zealand, some of which he visited fairly recently.
There is no substantive language or cultural barrier to the applicant returning to New Zealand. There is no evidence before me that the applicant is affected by any health conditions affecting his ability to obtain employment. In any event, as a New Zealand citizen he would have access to a social welfare and a public health system, comparable to those of Australia, which would be available to him if he were to suffer any financial or medical hardship.
CONCLUSION
For all the above reasons, I am satisfied that the decision to not revoke the cancellation of the applicant’s visa is the correct decision.
The decision under review is affirmed.

I certify that the preceding 54 (fifty -four) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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Associate
Dated: 8 June 2017

Date(s) of hearing: 25 May 2017

Applicant: In person

Solicitors for the Respondent: K Eskerie, Sparke Helmore

[2017] AATA 877

8 June 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Date(s) of hearing:	25 May 2017
Applicant:	In person
Solicitors for the Respondent:	K Eskerie, Sparke Helmore