Tuiai and Minister for Immigration and Multicultural and Indigenous Affairs

[2005] AATA 837

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 837

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/365

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ALBERT JOSEPH TUIAI

Applicant

And MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Deputy President Don Muller

Date30 August 2005

PlaceBrisbane

Decision The Tribunal affirms the decision to cancel the Special Category Visa of Albert Joseph Tuiai, pursuant to subsection 501(2) of the Migration Act 1958.

................SIGNED..............................

D.W. MULLER    
  DEPUTY PRESIDENT

CATCHWORDS

IMMIGRATION – cancellation of Special Category Visa – substantial criminal record – given a warning – further criminal convictions after warning – does not pass character test – wife and children unlikely to travel to New Zealand – discretion not exercised in applicant’s favour – decision affirmed

Migration Act 1958: ss499, 501

REASONS FOR DECISION

30 August 2005 Deputy President Don Muller        

1.Albert Joseph Tuiai is a citizen of New Zealand who has been living in Australia since he first entered Australia on 23 December 1988 on a Special Category Visa (Subclass TY444).

2.In 1995, Mr. Tuiai was convicted in the Brisbane District Court of breaking and entering a factory with intent and of setting fire to the building.  He was sentenced to 12 months imprisonment on each charge to be served concurrently.

3.Despite being given a warning in 1996 that he risked being deported if he was to be convicted of committing any further serious offences, he was convicted in 2003 in the Queensland Supreme Court, at Brisbane, of a number of offences relating to trafficking in heroin and sentenced to five years imprisonment.

4.On 6 May 2005, a delegate of the Respondent decided to cancel Mr. Tuiai’s Special Category Visa.

5.Mr. Tuiai does not wish to return to New Zealand and he seeks a review of the decision to cancel his visa.

6.At the hearing, Mr. Tuiai was represented by his solicitor, Ms. Nguyen and the Respondent was represented by its solicitor, Mr. Lo.

7.The documentary material placed before the Tribunal consisted of the following exhibits:

(1)The G Documents;

(2)Statement of Dr. Gary Persley, Psychiatrist, dated 1 August 2005;

(3)Statement of Ba Thi Nguyen, mother-in-law of Mr. Tuiai, dated 1 August.

(4)Statement of Hoang Truong, sister of Mr. Tuiai’s wife, dated 1 August 2005;

(5)Statement of Mai Vu, sister of Mr. Tuiai’s wife, dated 1 August 2005;

(6)Statement of Tauaaga Mataafa, brother-in-law of Mr. Tuiai, dated 2 August 2005;

(7)Statement of Manulua Tuiai, brother of Mr. Tuiai, dated 1 August 2005;

(8)Statement of Agnes Taimane, younger sister of Mr. Tuiai, dated 2 August 2005;

(9)Statement of Tima Tuiai, mother of Mr. Tuiai, dated 2 August 2005;

(10)Statement of Phuong Truong, wife of Mr. Tuiai, dated 1 August 2005;

(11)Prison documents;

(12)Copy of transcript of interview between Mr. Tuiai and a delegate of the Respondent on 30 August 1996;

(13)Statement by Mr. Tuiai dated 23 September 1996;

(14)Police Court Brief dated 12 June 2002.

8.Mr. Tuiai and his wife, Phuong Truong, both gave oral evidence to the Tribunal.

9.The following matters are not controversial and the Tribunal finds that:

(1)Albert Joseph Tuiai was born in New Zealand on 25 August 1968. He is now 37 years of age.

(2)Mr. Tuiai’s parents are from Samoa.  His father is a minister of religion.

(3)In 1988, his father was asked by his church to come to Australia to minister to its flock in Brisbane.  He has since retired.

(4)Mr. Tuiai’s parents and the rest of the family arrived in Australia in mid 1988.  Mr. Tuiai remained in New Zealand until the end of the year to complete a job he had with Telecom.  He arrived in Australia on 23 December 1988.  He was then 20 years of age.

(5)Mr. Tuiai has three sisters and two brothers.

(6)Mr. Tuiai moved out of his parents’ home shortly after he arrived in Australia.  He was the first of his siblings to do so.

(7)The whole of Mr. Tuiai’s immediate family became Australian citizens.  Mr. Tuiai did not do so.

(8)On 23 January 1995, Mr. Tuiai was convicted in the Brisbane District Court of breaking and entering a place (a factory) with intent and unlawfully setting fire to a building (the factory) on or about 11 January 1994.  He was sentenced to 12 months imprisonment on each charge, sentences to be served concurrently.  The sentencing judge was McGuire DCJ who said (among other things):

“On Monday, 10 January you (Aufai) met up with a group of others, some Samoan youths and some Vietnamese youths.  Included in the group were the accused Moenoa and Tuiai.  You informed the group that you wanted to burn the factory down and you told them how it was to be done.  The others in the group agreed to be involved.

All of you got in a car and drove to the factory site at Sumner Park at about 2 a.m.   You and one of the others (I think it was Tuiai) broke into the premises through the rear door and let the others in through a window.  You, Aufai, and the others started spreading the tins of paint thinners around the office of the building and then, although there is some doubt as to who actually ignited the fuel, without doubt the fuel was ignited.

Tuiai’s part was to go in with Aufai and the others who went in.  Tuiai told the police he did not see anyone spreading the tin of thinners around but he smelt something like liquid paper.  He said that when the fire started he was the first one out of the window, he was the driver of the car…

The damage caused by the fire before it was put out by the brigade was estimated to be $73,500 …

Aufai was 16 and a half approximately at the time, Moenoa was 19 and Tuiai was 26.  None had a criminal history ….

This a case where in my opinion there was a high degree of wilfulness and wantonness.  This is not the case of childish peccadillo.  What you did was deliberate.  The object of the exercise was to burn the factory down and you used means well adapted to the accomplishment of that objective… There appears to be no financial gain and there is no suggestion of trying to defraud an insurer as you both had no ownership rights regarding the factory or its contents…

I should say in relations to older offenders, although it would seem they were not involved in the original planning of this crime, then notwithstanding their greater age and therefore greater experience of life, made no real effort to restraint Aufai from going about burning the place down, and indeed each of them actively participated and encouraged the burning down of the premises.

I make no recommendation for early release.”

(9)On 30 August 1996, Mr. Tuiai underwent a lengthy interview with an officer of the Department for the purpose of assessing whether or not Mr. Tuiai should be deported.  At that time he had been separated from his then de-facto wife for about nine months.  She had given birth to a daughter, of whom Mr. Tuiai was the father, on 30 November 1995.  She also had an older daughter from a previous relationship.  Mr. Tuiai has maintained contact with both girls over the years.

(10)Mr. Tuiai was asked to make a further statement about why he should not be deported on 23 September 1996.  A transcript of his statement contains the following:

“My fear of losing contact (and therefore the support) of my family and facing very real unemployment prospects, are of major concern to me.

I will not offend again.  I am completely remorseful for what I did, and I want to return to the way of life I had before I disgraced myself and my family.  I knew being brought before the courts would upset my family and it was for that reason I did not tell them of the hearing which led to my confinement.  It was only after I was detained, that they found out.  As I mentioned before, not only did I disgrace myself, but my family as well.  My father is a Religious Elder Minister and a prominent figure in the Samoan community throughout Australia.  I am slowly trying to overcome the shame of being in prison.  I have returned to the church for spiritual guidance.  In accordance with our doctrine I cannot currently partake in certain church rites and rituals (eg. communion) because of my past predicament, but I have every intention of following the proper paths to becoming a faithful Christian once again.  Time and the Elders of my Synod will determine these paths. 

I have broken all ties with those who were involved in the crime I committed.  I found it difficult to get back on my feet after having been released from prison.  In particular, I have found that my search for employment was hindered greatly because of having a record.  I regard myself extremely fortunate to have obtained employment at ANI Steelmark, and the struggling experience I had in seeking work in an already difficult time of increased unemployment has made me all the more grateful and ensure that I will make every attempt possible to keep my new found job.  This job has also given me a sense of worth and hope.  While unemployed, I got mixed up with the wrong crowd.  Unemployment, as my father kept telling me, meant ‘idleness which led to the devil’s work…’.  There is no need to tell you that his words, in my case were prophetic!

One is always wiser after the event, and that is exactly what I am.  If rehabilitation means admission of, understanding why, and showing remorse for the crime committed, coupled with the willingness to better oneself with new found humility, then, I have been rehabilitated.  I have learnt my lesson, albeit the hard way.”

(11)On 27 September 1996, Mr. Tuiai was given a written warning, by the Regional Director of the Department, that any further conviction would lead to the question of his deportation being considered by the Minister.  The warning was signed by Mr. Tuiai as acknowledgement of his receipt of the document.  The document read as follows:

“Albert Joseph TUIAI

WARNING OF LIABILITY UNDER SECTION 200 OF THE MIGRATION ACT 1958

This letter is to confirm the oral warning administered to you today in relation to your conviction at the Brisbane District Court on 23 January 1995 for the offences of ‘Break and enter place with intent, Wilful set fire to a building’, which rendered you liable to deportation pursuant to Section 200 of the Migration Act 1958.

On this occasion the Minister’s Delegate has decided not to order your deportation on the basis of these convictions, nevertheless you are warned that any further conviction will lead to the question of your deportation being considered by the Minister.  Disregard of this warning will weigh heavily against you if the Minister reconsiders your case.

I enclose relevant extracts from the Migration Act on deportation liability and a copy of the Governments’ Criminal Deportation Policy. I suggest that in your own interest, you study these papers fully.

It is important that you note if you ever make a future visa application, or complete an incoming passenger card when returning to Australia you are required by law to disclose all of your criminal convictions in that application or on that passenger card.  If you fail to disclose all of your criminal convictions your visa may be cancelled and you may be removed from Australia.”

(12)In 1999, Mr. Tuiai began a relationship with a woman Phuong Truong, whom he later married in 2003.  Phuong Truong is an Australian citizen of Vietnamese descent.  At the time they met, Phuong Truong had two girls by a previous relationship.  One girl was born in 1994 and one was born in 1998.  Phuong Truong has since given birth to two more children, of whom Mr. Tuiai is the father, a boy born in 2002 and a girl born in 2004.

(13)Phuong Truong’s eldest daughter is eleven years old and is currently living with her father in Sydney.  Her father has just been released from a lengthy term in prison and he expressed a desire to have his daughter live with him for one year so that he can get to know her.  She will later return to live with her mother and with the other three children.

(14)On 22 November 2001, Mr. Tuiai was found guilty in the Inala Magistrates Court of possessing dangerous drugs (heroin) on 17 October 2000.  No conviction was recorded.  He was fined $200, in default imprisonment four days.

(15)On 27 June 2003, Mr. Tuiai was convicted in the Inala Magistrates Court of breaching a bail undertaking on 7 March 2003.  Fined $200, in default imprisonment 18 days.

(16)On 26 August 2003, Mr. Tuiai was convicted in the Supreme Court of Queensland, Brisbane, of:

(i)Trafficking in the dangerous drug heroin between 1 February 2002 and 13 June 2002.  He was sentenced to five years imprisonment, suspended after serving 18 months.

(ii)Possessing property obtained from trafficking ($7,285 in cash) on 12 June 2002.  He was sentenced to nine months imprisonment.

(iii)Possession of dangerous drugs on 12 June 2003 (steroids, testosterone and methandienone).  He was sentenced to three months imprisonment.

(iv)Possession of five gold rings, one gold bracelet and one gold neck chain on 12 June 2002, obtained using the proceeds of the sale of heroin.  He was sentenced to six months imprisonment.

Each sentence was to be served concurrently with the others.  The tainted property was forfeited.  Mr. Tuiai was sentenced on the basis that he, his wife and his wife’s sister were heroin addicts and he was selling heroin to support the habit of himself, his wife and his sister-in-law.

(17)On 25 September 2003, Mr. Tuiai was convicted in the Brisbane Magistrates Court of possessing heroin on 24 January 2003 and possessing property suspected of having been used in connection with the commission of a drug offence on 24 January 2003.  On each charge he was sentenced to three months imprisonment, to be served concurrently.  He was already in prison as a result of the Supreme Court matters dealt with on 26 August 2003.

(18)On 2 December 2004 Notice of Intention to Cancel a Visa under s.501(2) of the Act was sent to Mr. Tuiai by a representative of the Character Assessment Unit of DIMIA, Brisbane.  On 6 December 2004, Mr. Tuiai acknowledged receipt of the notice of intention to cancel his visa.

(19)On 28 December 2004, Mr. Tuiai made a written response to the notice of intention to cancel his visa.  He said:

“I am writing in response to your notice of cancellation of my visa under section 501 of the Migration Act 1958.

I am currently serving a 5 year sentence suspended after 18 months for drug offences.

As to the difficulties I now find myself in, I will give you a short history of my past and background and later give you a strong reason why I should be considered to remain in Australia.

I entered Australia in 1988 and found employment with Dun and Bradstreet P/L.  In 1994 I fell into the wrong crowd which led me to my first conviction and was approached by The Department of Immigration for deportation and was given 4 years probation till I could apply for citizenship.  I passed the 4 year probation working for various companies as a welder. I didn’t feel the need to become a citizen then as I thought I was no threat to the community and I was positive that I would not re-offend.  In 2000 a dear friend of mine passed away.  Depressed as I was I fell into the world of drugs.  I found it harder and harder later on to break away from my addiction.

In February 2002 I was approached by an associate with the proposal of selling drugs for him to support my habit.  Foolishly I accepted his proposal and was apprehended in June 2002 and charged with trafficking.

My whole family relocated to Australia due to a Brisbane parish calling for my father to minister a church in Darra.  My father later became the president of Brisbane Congressional Samoan Churches.  He is now currently retired and my brother-in-law now holds that position.  My oldest brother is now a minister and teacher at the Malua Theological College in Samoa.

As you can see my family is very religious and was devastated but not withstanding all the circumstances they stuck by me and offered all their support.

I am happily married and have two lovely children to my wife. I have one boy who is almost 3 in February and a girl who is almost 1 in February.  They visit as much as they can and have given me moral support through my time of imprisonment.

During my imprisonment I have taken rehabilitation programs such as cognitive skills and relapse prevention.  Not only did these courses rehabilitate me but given me the skills to think twice when there is a fork in the road.

I was fortunate enough to be involved in the WORC program allowing the prisoner to re-integrate into the community with projects throughout Queensland.  I have no breaches through my imprisonment and my work conduct and ethics will reflect through my records that I strongly believe without a doubt of any chances of recidivism.

If I should be deported it would bring extreme stress on my family and wife.  Further stress to my wife and children if they would have to relocate to a foreign country and start anew.  All my wife’s family resides in Australia and is a Australian citizen.

I sympathise for my crimes in the community.  I have been punished severely emotionally yet I do not wish my family, my wife and especially my children to suffer any further.  I love my children with all my heart and there’s no rehabilitation program better than to be with my children every day to protect them and guide them.

So I therefore apologise for my crimes and cry out for compassion for me to continue to reside in Australia with whatever warning and conditions you decide.  I hope to have a favourable answer in the near future.”

(20)On 6 May 2005 a delegate of the Respondent cancelled Mr. Tuiai’s visa under s 501(2) of the Act.

(21)On 9 June 2005 Mr. Tuiai sought review of the decision by the delegate by this Tribunal.

10.     The legislation relevant to this review is contained in subsections 501(2), (6) and (7) of the Act.  They provide:

“s.501

(2)  The Minister may cancel a visa that has been granted to a person if:

(a)the Minister reasonably suspects that the person does not pass the character test;   and

(b)the person does not satisfy the Minister that the person passes the character test.

…..

Character test

(6)For the purposes of this section, a person does not pass the character test if:

(a)the person has a substantial criminal record (as defined by subsection (7));  or

…

(c)having regard to either or both of the following:

(i)the person’s past and present criminal conduct;  or

(ii)the person’s past and present general conduct;

the person is not of good character;  or

(d)in the event the person were allowed to enter or to remain in Australia, there is significant risk that the person would:

(i)engage in criminal conduct in Australia;

Otherwise, the person passes the character test.

Substantial criminal record

(7)For the purposes of the character test, a person has a substantial criminal record if:

…

(c)the person has been sentenced to a term of imprisonment of 12 months or more;  or

(d)the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more.”

11. There is no doubt that Mr. Tuiai has been sentenced to a term of imprisonment of 12 months or more. He therefore has a substantial criminal record within the meaning of that term in subsection 501(7) of the Act. He is therefore deemed by subsection 501(6) to not pass the character test. Consequently, the delegate of the Minister was entitled to cancel Mr. Tuiai’s visa under subsection 501(2) of the Act.

12.     However, notwithstanding the fact that the decision to cancel Mr. Tuiai’s visa was justified, section 501 allows for the decision-maker to exercise a discretion in each individual case.  The Minister has issued a Direction (number 21), pursuant to the provisions of s.499 of the Act, which contains matters which decision-makers (including the Tribunal) are to take into account in exercising the discretion.

13.     The evidence of Mr. Tuiai and his wife, Phuong Truong, was directed towards the matters referred to in Direction 21.  Similarly, the statements by the parents, siblings and friends of Mr. Tuiai and Phuong Truong were also directed towards the question of the way in which the discretion should be exercised in this case.

14.     Mr. Tuiai covered much of the ground he had covered in his written statement made on 28 December 2004 (see paragraph 9(19) above), but he also made the following further points:

·His major concern is that he will be separated from his children if he is deported to New Zealand.  He does not think it is likely that his wife will be able to re-locate to New Zealand.

·He would have to live by himself if he went to New Zealand.  All of his close family are now Australian citizens. He would lose contact with them.

·He has a few distant relatives in New Zealand but he does not know any of them.

·He still maintains contact with his first daughter who was born in 1995.  He sees her on some weekends.  He last saw her in April this year.  He would completely lose contact with her if he went to New Zealand.

·He deeply regrets what he has done.  He has “done his time”. He would like another chance.  He wants to remain “close to his wife and kids”.

·His siblings all have good jobs.  The family is very supportive.  He had been too ashamed to seek help from them before he was apprehended by the police.

·When he was released from jail recently, he immediately obtained a job in a chicken factory and he remained in that job until his detention in June 2003.  He has been promised his job back at the chicken factory if he is permitted to remain in Australia.  He has been living under “home detention” since he was detained.

·His wife no longer has a drug problem.

15.Phuong Truong affirmed her written statement and gave oral evidence.  She made the following points, among others:

·She was born in Vietnam on 6 April 1975.

·She arrived in Australia with her parents in 1980.

·She is an Australian citizen.

·She has two girls from a previous relationship and a boy and a girl with Mr. Tuiai.

·Her eldest daughter is currently living with the daughter’s father in Sydney.  He has recently been released from a long term in prison.  He wants to take the opportunity to get to know his daughter.  The daughter will return to live with Phuong Truong, probably next year.

·She and her three other children currently live with her mother, who is very supportive of her.

·She and Mr. Tuiai both had a drug problem in 1999.  They were addicted to heroin.

·Her drug problem got worse in 2000.  She was convicted of the possession of heroin in 2000 and was sentenced to six months in prison.

·She was also convicted for possession in 2004 and received a fine.

·She remembers that Mr. Tuiai was very emotionally disturbed when a friend of his committed suicide in about 2000.

·She went to Perth to get a naltraxone implant to combat her heroin addiction.  It has worked well and she has not used heroin since.

·It would be impossible for her to go to live in New Zealand.  She knows no one there.  She would have no family support.  She would have to be separated from her two eldest girls.  Their father would not allow them to go to New Zealand, and in  any case, she wants them to have regular contact with their father. 

·She does not intend to break up her family.

16.Dr. Persley, psychiatrist, provided a statement in which he made the following points:

·Mr. Tuiai does not have a psychiatric illness.

·Mr. Tuiai interacts very well with his children.  They appear to get on well with him.

·It is highly desirable for children to grow up with a father figure in the household.

17.Mr. Tuiai’s family and friends all say that he is an intelligent person who has had a wonderfully supportive family upbringing.  He has had a Christian upbringing and he knows right from wrong.  They believe that with their love and support they will be able to help Mr. Tuiai remain on the straight and narrow pathway towards rehabilitation.

18.The Minister’s Direction 21 contains a large number of matters which a decision-maker should take into account in assessing whether discretion should be exercised in favour, or otherwise, of a person whose visa may be cancelled.  A number of the matters do not apply to Mr. Tuiai.  I regard the following matters as relevant to this review.

Protection of the Australian Community

19.The crimes of which Mr. Tuiai was convicted were particularly serious.

20.He was involved in the attempt to burn down a factory in 1994.  The matter speaks for itself.  It was outrageously anti-social and potentially extremely dangerous.

21.He was convicted of trafficking in heroin during 2002.  It is a trade which brings misery to our community because of the problems associated with addiction and the crime associated with addicts obtaining money to satisfy the addiction.

22.Mr. Tuiai was not a young, foolish, impressionable teenager when he committed the crimes.  He was 26 years of age when he committed the arson and he was in his 30’s when he was selling heroin.

23.He committed the extremely serious offence of trafficking in heroin after he was warned that he faced deportation if he was convicted of committing any further offence.

24.Mr. Tuiai’s letter of contrition in 1996 contains much the same type of show of remorse, apology to his family and promise of rehabilitation as he is currently promoting.

25.I take the view that in Mr. Tuiai’s case there is a real chance of recidivism and one sure way of protecting the Australian community from him is to remove him.

Expectations of the Australian Community

26.I believe that most members of the Australian community are prepared to give people who fail to live up to their responsibilities to the community a second chance.  However, if a person has been given a second chance and then abuses that act of faith, hope or charity, that person cannot expect the Australian community to extend much sympathy to them.

27.I do not believe that the Australian community would be sympathetic towards giving Mr. Tuiai a third chance.

The best interests of the children

28.Mr. Tuiai has been a father figure at one time or another to six children.  His first defacto wife had a young girl from a previous relationship and then gave birth to a daughter by Mr. Tuiai.  His wife Phuong Truong had two daughters from a previous relationship and then gave birth to a son and a daughter by Mr. Tuiai.

29.It is almost a certainty that if Mr. Tuiai is deported to New Zealand, not one of the six children will go to New Zealand to live with him.  They will remain in Australia with their respective mothers.  In the case of three of them they will maintain contact with their respective fathers.

30.Whether or not it is in the best interests of the children to maintain close contact with Mr. Tuiai depends to a large extent on his rehabilitation or on the matter of recidivism.  If he continues to behave in the way he has in the past, he will be a very poor role model and father figure, even if the children do love him.

31.I am not satisfied that this factor outweighs the first two factors dealt with above.

Other factors

32.Mr. Tuiai has no close family ties to New Zealand.  He would be a complete stranger there.  All of his immediate family members live in Australia.

33.I have no doubt that Mr. Tuiai’s mother, father, sisters and brothers feel very sad about the way Mr. Tuiai’s life has gone so far.  I also accept that they would be as supportive as they could be of Mr. Tuiai if he remained in Australia.  However, the plain fact of the matter is that they would suffer no particular hardship if Mr. Tuiai was deported to New Zealand.

34.I have some concerns for Mr. Tuiai’s wife.  It is hard to know whether she would be better off under Mr. Tuiai’s influence or not.  She may find the going a bit tough if she has to raise three children on her own.

35.However, I find that the first two Primary Considerations set out in the Minister’s Direction 21 far outweigh any other considerations.

36.The discretion allowed for under s.501 should not be exercised in Mr. Tuiai’s favour.

37.The decision to cancel Mr. Tuiai’s Special Category Visa is affirmed.

I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller

Signed:         .....................................................................................
           B. Hitchcock, Personal Assistant

Date/s of Hearing  15 August 2005
Date of Decision   30 August 2005
Solicitor for the Applicant           Nguyen Lawyers
Solicitor for the Respondent      Mr Lo, Clayton Utz