Tuira and Minister for Immigration and Citizenship
[2011] AATA 795
•10 November 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 795
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/3730
GENERAL ADMINISTRATIVE DIVISION ) Re Shaun Robert Tuira Applicant
And
Minister for Immigration and Citizenship
Respondent
DECISION
Tribunal Mr R P Handley, Deputy President Date10 November 2011
PlaceSydney
Decision The decision under review is set aside and a decision substituted that the discretion in s 501(2) of the Migration Act 1958 should be exercised in the applicant’s favour so that his visa is not cancelled. ...................[sgd].....................
Mr R P Handley
Deputy President
CATCHWORDS
IMMIGRATION – 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 – best interests of the child – other considerations – family ties, the nature and extent of any relationships – person’s age – person’s health – 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 – decision under review is set aside.
RELEVANT ACT
Migration Act 1958 (Cth): s 501
OTHER AUTHORITIES
Crimes (Administration of Sentences) Regulation 2008 (NSW) reg. 22, 28, 29
Direction [no. 41] - Visa Refusal and Cancellation under section 501
REASONS FOR DECISION
10 November 2011 Mr R P Handley, Deputy President 1. Mr Tuira has applied to the Tribunal for the review of a decision of a delegate of the Minister for Immigration and Citizenship (the Minister) to cancel his visa on the ground that he does not pass the character test because of his substantial criminal record.
BACKGROUND
2. Mr Tuira was born in New Zealand in 1986 and is a New Zealand citizen. He first arrived in Australia with his family on 23 November 1990 at the age of 4 and has not departed since. On 1 September 1994, he was granted a Class TY Subclass 444 Special Category (Temporary) visa permitting him to remain in Australia indefinitely. He is single and now aged 25.
3. Mr Tuira’s parents divorced in 2001 when he was aged 15 after what appears to have been a stormy relationship exacerbated by excessive consumption of alcohol and domestic violence. Mr Tuira has an older brother, aged 29, who suffers from schizophrenia and lives at home where he is cared for by their mother. Their mother has a long history of mental problems, characterised by suicidality, anxiety and depression. Mr Tuira also has an older sister, aged 28, who lives with her partner and their three and a half year old daughter. All of Mr Tuira’s close family and most of his extended family live in Australia.
4. Mr Tuira’s criminal history dates from 3 February 2000 when, at the age of 13, he was charged with the offence of ‘Enter Inclosed Land Not Prescribed Premises Without Lawful Excuse’. No conviction was recorded and no further penalty imposed. On 27 May 2002, aged 15, he was charged with ‘Person Under 18 Consume Liquor in a Public Place’. Again, no conviction was recorded and no further penalty imposed. On 3 September 2004, he was convicted of the offences of ‘Robbery in Company’ (3 charges), ‘Robbery Armed With Offensive Weapon’ (3 charges), and ‘Assault With Intent To Rob Armed With Offensive Weapon’ and placed on a control order for two years, suspended for two years. On 3 November 2004, he was charged with ‘Common Assault’ – no conviction was recorded but the matter was adjourned on condition that he ‘be of good behaviour’ for six months.
5. Mr Tuira has the following convictions in respect of his conduct as an adult. On 16 March 2005, he was convicted of the offences of ‘Behave In Offensive Manner In/near Public Place/school’, ‘Use Offensive Language In/near Public Place/school’, ‘Resist Officer in Execution Of Duty’, and ‘Assault Officer In Execution Of Duty’, and released on a 12 month good behaviour bond. On 9 February 2006, he was convicted of ‘Maliciously Wound’ (for stabbing his older brother in the left shoulder after an argument on 20 July 2005) and sentenced to imprisonment for 15 months. On 14 November 2006, he was convicted of contravening an apprehended violence order (AVO) (for which he was sentenced to 7 months imprisonment) and ‘Stalk/Intimidate With Intent To Cause Fear Physical/mental Harm’ (2 charges, for which he was sentenced to 4 months imprisonment on each charge). These charges arose out of a domestic dispute on 31 July 2006 in the course of which Mr Tuira threatened his sister and mother with violence. At this time, an AVO was in place protecting Mr Tuira’s older brother and those having a domestic relationship with him.
6. On 14 March 2008, Mr Tuira was convicted of the offence of assaulting a police officer in the execution of his duty (on 22 February 2008) and sentenced to 18 months imprisonment, suspended for 18 months on his entering into a good behaviour bond. This offence occurred when the police were called to the family home in relation to a domestic dispute and Mr Tuira, who was intoxicated, lunged at a police officer with a steak knife. On 24 September 2008, when Mr Tuira was called up for breach of his bond, he was given a further 18 months suspended sentence.
7. On 14 November 2008, Mr Tuira robbed a Subway takeaway store. After a DNA match and the issue of a warrant for his arrest, on 21 September 2009 Mr Tuira handed himself in at Campbelltown police station, where he was detained and charged with robbery to which he pleaded guilty. On 30 March 2010, he was sentenced by Judge Cogswell in the District Court of NSW to three years imprisonment with a non-parole period of two years commencing on 21 September 2009. The Judge directed that on Mr Tuira’s release on parole, he should be referred to the Drug Court to determine whether he should be the subject of a compulsory drug treatment order.
8. Mr Tuira’s most recent conviction, on 30 March 2011, is for the offence of ‘Possess Prohibited Drug’ (cannabis), committed while in prison, for which he was sentenced to two months imprisonment from 21 September 2011. The earliest date for his release is 20 November 2011.
9. On 19 June 2007, the Department sent Mr Tuira a formal counselling letter warning him that any further misconduct on his part could result in consideration being given to the cancellation of his visa.
10. On 3 May 2011, the Department notified Mr Tuira of its intention to consider cancellation of his visa and inviting him to respond. In response, Mr Tuira’s father lodged a Personal Details Form on behalf of his son. On 12 August 2011, a delegate of the Minister decided to cancel Mr Tuira’s visa and his father was notified of this by letter dated 17 August 2011. Mr Tuira acknowledged receipt of the letter of notification on 28 August 2011 and, on 5 September 2011, his application for review was received by the Tribunal.
RELEVANT LAW AND POLICY
11. Section 501(2) of Migration Act 1958 (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)(a) 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.
12. Mr Tuira has been sentenced to terms of imprisonment of more than 12 months on several occasions, most notably on 30 March 2010 to a term of three years. Thus, he does not pass the character test. It was therefore open to the Minister to cancel Mr Tuira’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.
13. 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).
(Original emphasis.)
14. 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
15. The ‘primary’ considerations relevant in Mr Tuira’s case are the protection of the Australian community, the fact that he was a minor when he began living in Australia, the length of time that he was ordinarily resident in Australia prior to engaging in criminal activity, and the best interests of any relevant children. These considerations are addressed below.
the protection of the australian community
16. 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
17. With regard to the seriousness of Mr Tuira’s conduct, the Tribunal notes that “Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community” (paragraph 10.1.1(1) of Direction No 41). Among the examples of offences and conduct that are considered serious listed in paragraph 10.1.1(2) of Direction No 41 are grievous bodily harm, reckless injury, assault, aggravated assault and robbery. Mr Tuira has been convicted of assault, malicious wounding and robbery.
18. Paragraph 10.1.1(3) of Direction No 41 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.
19. As noted above, Mr Tuira has been convicted of a number of serious offences. In sentencing Mr Tuira on 14 March 2008, Magistrate McRobert described the circumstances giving rise to Mr Tuira being charged with the offence of assaulting a police officer in the execution of his duty, as being “an extremely violent confrontation”. It appears to have arisen out of Mr Tuira being intoxicated, losing his temper during a family dispute and, when the police were called, his having picked up two steak knives, “lung[ing] towards a police officer”. The Magistrate said he did “not trust Mr Tuira in the community when intoxicated”, and for that reason, directed him to abstain from alcohol and illicit drugs. Mr Tuira, to whom the Magistrate gave an 18 months suspended sentence, was required to subject himself to random urinalysis and random breath analysis. As noted above, Mr Tuira breached the conditions of his bond and a warrant was issued for his arrest to be brought before the Court on 12 August 2008. However, the breach related to his refusal to continue with counselling and his lack of co-operation with the Probation and Parole Service and, on his being brought before the Court, Magistrate Clisdell directed that no further action be taken and that supervision be deleted from the conditions of Mr Tuira’s bond.
20. In his sentencing remarks on 30 March 2010, Judge Cogswell noted that he was not satisfied beyond reasonable doubt “that the offence was accompanied by any significant planning at all but it was one where the offender, whilst he was at the scene of the crime, waited for the appropriate opportunity”. In the undated statement provided to the Tribunal and filed on 12 October 2011, Mr Tuira said the offence was not planned at all. It was a ‘spur of the moment’ thing. At the time, he was devastated, having gambled nearly all his earnings on the pokies the previous evening. As a result, he had no money to pay his rent, no money to get to and from work, and no money to support himself for the rest of the week. On his way to work that morning, he stopped at a Subway store to buy something to eat, and “something came over me and out of nowhere I just reached out and grabbed the till”. As the Judge acknowledged, there was no violence or threat of violence involved and Mr Tuira told the Subway manager “I’m sorry I have to do this. I’m desperate.”
21. With regard to Mr Tuira’s background, Judge Cogswell said at [11]:
He turned to illegal substances when he was eleven or twelve years old by starting to smoke cannabis, which had become a daily habit by the age of eighteen. He was taking amphetamines and ecstasy by the time he was nineteen and had commenced a pattern of binge drinking on weekends from the age of fifteen. In addition he developed a serious gambling problem. It was in fact because he had no money that he committed this particular crime. The money had been gambled away.
22. In terms of rehabilitation, the Judge expressed “limited optimism” about Mr Tuira’s commitment to rehabilitation but said that because of his age he should be provided with every opportunity. Judge Cogswell set conditions for Mr Tuira’s release on parole (after a non-parole period of two years) at which time he was to be referred to the Drug Court to determine whether he should be the subject of a compulsory drug treatment order.
23. There is no question that Mr Tuira has committed a series of criminal offences. However, I note that the more recent offences involving violence – the convictions on 9 February 2006, 14 November 2006 and 14 March 2008 – arose out of domestic disputes in the family home or its vicinity while Mr Tuira was intoxicated. There was no violence or threat of violence in the November 2008 robbery.
The risk that the conduct may be repeated
24. 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 Tuira’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.
25. Mr Tuira’s record in respect of judicial orders is poor. In the period 2004 to 2006, he breached a control order and good behaviour bonds. In about August 2006, he breached a parole order with the result that he had to serve the balance of his term of imprisonment of three months and three days. He was serving an 18 months suspended sentence when he robbed the Subway store on 14 November 2008. Moreover, his most recent conviction for possession of cannabis was in relation to his conduct in prison.
26. Mr Tuira has also incurred two disciplinary charges while in prison. According to an ‘Immigration Report’ dated 21 April 2011 (the Immigration Report), prepared by the Probation and Parole Service for the Department, on 8 January 2010and again on 8 April 2010, Mr Tuira failed to provide or failed a urine sample. (A random urinalysis on 11 April 2010 detected cannabis). Then, on 19 January 2011, after inmates were searched at Parklea Correctional Centre and he gave a positive reaction to a prohibited substance, he admitted to smoking cannabis. In a strip search shortly after, Mr Tuira was found with 2.71 gms of cannabis in his possession and it was this that led to his conviction for ‘Possess Prohibited Drug’ on 30 March 2011. At the hearing on 2 November 2011, Mr Tuira acknowledged that it was his cannabis and that at the time he was still using cannabis occasionally.
27. With regard to evidence of rehabilitation, in November 2010, while in prison, Mr Tuira completed a Self-Management and Recovery Training (SMART) program of 12 sessions which, the Immigration Report states, is “designed to empower participants to take control of their lives and effect changes to their substance using behaviours”. Mr Tuira also commenced but did not complete an anger management course, attending four sessions, in which he was stated to be disruptive and refused to accept the rules for the program. Dr John Howard, the Clinical Psychologist who prepared a psychological report on Mr Tuira dated 27 September 2011, noted that the program required him to disclose personal information and feelings in a group setting and said at [30]:
This unsettled him, as he was fearful of disclosures being used against participants when they were back among the main facility population. He said he would have been happy to participate in a one to one program addressing his feelings and moods, but he found the group form intimidating. It is understandable that he would be sensitive about raising issues to do with his mother’s alcohol dependence, depression and suicidality, his father’s violence and his brother’s schizophrenia in such a setting, especially as much of his ‘crime’ involved domestic situations.
28. Dr Howard noted that despite some negative comments about Mr Tuira’s conduct in the Immigration Report, he nevertheless achieved a C2 classification while in prison, indicating that he was regarded as a relatively low risk prisoner. Mr Tuira’s behaviour would have been taken into account in making such a classification. I note that Regulation 22 of the Crimes (Administration of Sentences) Regulation 2008 (NSW) defines the C2 and C3 categories of male prison inmates as follows:
Category C2, being the category of inmates who, in the opinion of the Commissioner, need not be confined by a physical barrier at all times but who need some level of supervision by a correctional officer or some other person authorised by the Commissioner.
Category C3, being the category of inmates who, in the opinion of the Commissioner, need not be confined by a physical barrier at all times and who need not be supervised.
29. Category C3, which permits work release, is apparently not available for prisoners in Mr Tuira’s situation facing possible removal to another country.
30. Dr Howard commented that a reduction in Mr Tuira’s security classification from A2, which is regarded as a high security classification (see Regulations 28 and 29 of the 2008 Regulation), while he was in Parklea Correctional Centre (CC), to C2, in the Dawn de Loas CC “is not a pattern indicative of an uncontrollable inmate”. The only recent behavioural issues referred to in the Immigration Report relate to cannabis use and failing to provide a urine sample or failing a prescribed urine test, and verbal abuse to officers who carried out a cell search on 30 June 2010. Dr Howard said that in his opinion this does not appear to equate with a “generally unsatisfactory” response to custody, the comment made in the Immigration Report. He was critical of the superficiality of the Immigration Report.
31. Dr Howard said Mr Tuira’s mental state “currently meets criteria for a depressive disorder”, noting that “It is most likely Mr Tuira has suffered from depression for much of his life, and that he has masked it with alcohol, cannabis and activity.” Dr Howard also commented on the context in which Mr Tuira’s criminal activity occurred at [44]:
While Mr Tuira’s crime cannot be condoned, it can be understood. Much of it arose due to and within the context of a very dysfunctional family unit; the mental health of his mother and brother, the psychiatric hospitalisations of his mother and brother, his own substance use, and the absence of an effective father, who, when present, was abusive and violent towards his wife. There was much police and mental health involvement during volatile incidents, and Mr Tuira was often ‘medicated’ with cannabis and alcohol during such times. The likely rather confrontational approach of the attending police, their regular contact with the family, and probably less than optimal tolerance would have escalated the potential for a very abusive and physical conflict. Mr Tuira understands his role in these incidents, and regrets his behaviour and substance use.
32. Dr Howard refers to Mr Tuira being left to care for his mother, who attempted suicide on three occasions, and to assisting her to manage “her psychotic oldest child”, and commented that these were “quite unreasonable expectations placed on a young man who was experiencing his own difficulties”. In his statement filed on 12 October 2011, Mr Tuira refers to witnessing “the alcohol related violence between my mother and father” and to finding his mother on two occasions after she had attempted suicide and calling the ambulance, on the first occasion when he was aged 15. On each occasion, his mother was admitted to a psychiatric hospital for treatment, where he visited her. Mr Tuira indicated that he was traumatised by these experiences and was drinking heavily and using drugs as “my only way to escape the pain”.
33. The evidence of Mr Tuira’s family and friends indicates that he is a good worker and in his statement he says that he has enjoyed working and supporting himself. In his sentencing remarks, Judge Cogswell noted that Mr Tuira seemed “to be able to hold down jobs pretty [well] when them and something to build on”. When he has been in prison, he says that he prefers to work and reports of his work are satisfactory. Unfortunately, work has not always been available. Dr Howard notes that if Mr Tuira is released into the community, he intends to live with his father, who has been much more supportive of him recently. His father lives in Wollongong, away from the rest of the family. Dr Howard stated that with Mr Tuira’s relocation there and employment, and with the support of his family and a commitment not to return to substance use or gambling, “the likelihood of his returning to the type of criminal activity he exhibited in the past would be low”. At the hearing, Dr Howard acknowledged that his assessment is based upon Mr Tuira abstaining from alcohol and drugs.
34. Dr Howard said he had spent two hours interviewing Mr Tuira at the Dawn de Loas CC in preparation for his report. As the interview progressed and Mr Tuira relaxed, he became more communicative and coherent and expressed a broader range of emotions revealing that he is thoughtful and reflects on his behaviour. Dr Howard said Mr Tuira has developed insight into the effect of his conduct on his family and the community. However, he has less understanding of his own mood states.
35. Dr Howard said Mr Tuira’s depression can be treated but first requires further assessment. Dr Howard noted that the severity of Mr Tuira’s depression varies according to his circumstances at the particular time. His greatest need is probably community support and mentoring rather than intensive counselling or medication. Mr Tuira’s father’s increased involvement in his life is an important factor and also that his father has assumed greater responsibility for caring for his ex-wife and older son. Dr Howard noted that Mr Tuira and his father have developed a positive relationship and that his father no longer drinks alcohol.
36. Mr Tuira’s father confirmed that if his son is released into the community, the plan is for his son to live with him in Wollongong where the father lives and is employed and where he can support his son. His father said he is optimistic about helping his son find a job in Wollongong – his father knows people who will help with this. His father said over the past two years, he has noticed a change in his son’s attitude, reflecting his greater maturity. Unlike before, they can now sit and have a ‘father and son’ conversation and Mr Tuira always asks about their family. Previously, he tended to be caught up in whatever was going on around him at the time.
37. Dr Howard noted that when in the past Mr Tuira has been employed, his alcohol and cannabis use has generally been under control. He noted that while Mr Tuira has acknowledged having used cannabis while in prison, cannabis is reasonably common in the prison environment and when, as at the Dawn de Loas CC, there are no courses and no employment available for an inmate such as Mr Tuira, and many of the inmates are on short stays, it is a very unsettling environment. I asked Mr Tuira about his use of cannabis. He told me that when he was first imprisoned, he was using cannabis daily but later this became occasional and now he has not used cannabis for three or four months. He said the SMART program, which he completed in November 2010, helped him learn ways to say ‘no’ to drugs and alcohol and he has only smoked cannabis occasionally since, generally when he is bored or due to peer pressure. Mr Tuira said he will try and stay away from drugs and alcohol if he is released into the community.
38. In his statement, Mr Tuira said he knows that what he did was wrong and that he has changed. However, during his evidence, he acknowledged that he had not been entirely truthful in the account of his offences he gave to Dr Howard: first, suggesting that on the occasion that he stabbed his brother in July 2005, his brother had first drawn a knife on him, which was not true; second, not revealing that in the domestic dispute involving his mother and sister in July 2006, he had threatened them; and, third, not revealing that when the police attended the family home as a result of a the domestic dispute in February 2008, he had lunged at a police officer with a steak knife. Mr Tuira said he did not want Dr Howard to think him a bad person and he wanted Dr Howard’s report to be advantageous for him.
39. Mr Tuira acknowledged that the statement he prepared for the Tribunal, filed on 12 October 2011, is also not entirely truthful. He did not mention his having lunged at a police officer, and said in his statement that the cannabis, with the possession of which he was convicted in March 2011, belonged to someone else for whom he was holding it, which was not true. Mr Tuira said it had taken him about a week to write the statement and his intention was to give the Tribunal an insight into the sort of person he is. He agreed that the statement makes some of his offences sound less serious but said he was nervous in preparing the statement and did not try and relate all the relevant facts.
40. These matters were brought to Dr Howard’s attention. He said this did not change the opinions he expressed in his report. While Dr Howard acknowledged Mr Tuira’s history of violence, he said the violence was confined to fraught domestic situations when Mr Tuira was intoxicated and was not a pattern of violence one would associate with someone who is a threat to the wider community.
41. Mr Tuira’s family members and the friends who provided statements of support all said that he has changed for the better. His mother said over the past two years she has visited her son in prison nearly every second weekend and has noticed that he has become more caring and communicative. He asks how things are going at home and about things such as the family pets. His attitude has changed and he has become more mature. While very close to her son, she said if he is released into the community, it would be better for him to live with his father in Wollongong and get away from the Campbelltown area. Mr Tuira’s sister also provided a letter of support dated 25 October 2010. She states that she has noticed her brother’s greater maturity over the past two years and that he is a changed person. She also refers to the very difficult upbringing that she and her brothers experienced, especially in relation to their mother’s mental illness which resulted in her being in and out of hospital for a number of years.
42. My assessment of Mr Tuira is that the risk of his reoffending is now much lower than previously. In relation to the most recent offences involving violence in July 2005, July 2006 and February 2008, it is clear that these arose out of domestic disputes in the family home where Mr Tuira was affected by alcohol. I accept the view expressed by Dr Howard that it is important to understand the family situation in which Mr Tuira was brought up, where his parents were often affected by alcohol and involved in violent domestic disputes, and where both his mother and older brother suffered mental health problems. Dr Howard characterised it as a dysfunctional family unit. It appears that the family unit is not now as dysfunctional as was previously the case. His parents were divorced about 10 years ago and his father now lives separately in Wollongong where he works. His father no longer drinks alcohol and in the last few years appears to have assumed greater responsibility for helping care for his ex-wife and his older son, who lives with and is dependent on his mother. Mr Tuira’s relationship with his parents seems to have improved markedly in the last two years and both commented on his more caring attitude and his being more communicative with them.
43. Mr Tuira’s substance abuse, particularly of alcohol, appears to have been a major factor in his misconduct. I note Dr Howard’s assessment that Mr Tuira represents a low risk of reoffending is dependent upon Mr Tuira abstaining from the use of drugs and alcohol. Of concern is that Mr Tuira continued to use cannabis until, by his own account, three or four months ago. In the past two years, he has presumably not been in a situation where the use (and abuse) of alcohol has been open to him. Thus, his commitment to staying away from alcohol is untested, although I note that if he lives with his father, who is now teetotal, there will be less opportunity and his father will, hopefully, be a controlling influence on his behaviour. Furthermore, if his father’s optimism about finding Mr Tuira a job is justified and Mr Tuira is able to start working sooner rather than later, this will also be of benefit. Mr Tuira appears to have a good reputation in his work.
44. Mr Tuira admitted that on the night before he robbed the Subway store on 14 November 2008, he had gambled most of his earnings away on poker machines, and his consequent lack of money was obviously a motivating factor in the robbery. However, Mr Tuira’s evidence was that it was primarily his consumption of alcohol that drove his continuing to gamble rather than his having a gambling addiction. While Dr Howard refers to Mr Tuira having a gambling problem in the past, he notes that Mr Tuira’s gambling was mostly at pubs and clubs and mainly ‘on the pokies’ and he said that whilst he might owe friends, he had not otherwise acquired gambling debts. When I asked Mr Tuira about his gambling, he said he did not think he had a gambling problem. In the absence of other evidence, I am inclined to accept this.
45. I am, of course, also concerned about Mr Tuira’s having been less than honest in some of the details of his offending that he gave to Dr Howard and in the statement he provided for the Tribunal which sought to minimise his misconduct. While, as Ms Stone, for the Minister pointed out, this reflects adversely on his credibility, as Mr Jackson, for Mr Tuira said, Mr Tuira was, nevertheless, truthful in the account he gave at the hearing, explaining that he was ashamed of his actions and wanting to make a good impression.
46. Reflecting on the above evidence, first, I was impressed by Dr Howard’s evidence and his assessment of Mr Tuira. In making that assessment, Dr Howard was drawing on his professional skills, including in researching and treating substance abuse, and a wealth of relevant experience over nearly 40 years. I found his assessment thorough, measured and realistic. Second, Mr Tuira’s family have put together a sensible plan to assist in his reintegration into the community, building on the improved relationships they have developed over the past two years. Third, the support of his family, particularly his father, will be a key feature in his rehabilitation if he is released into the community, and the Probation and Parole Service will also need to be closely and appropriately involved in the immediate period while he is on parole. Fourth, Mr Tuira must abstain from drugs and alcohol. If the necessary conditions are in place, in my view, there is a low risk of Mr Tuira reoffending. However, on balance, given the serious nature of Mr Tuira’s offences, the protection of the Australian community still favours the cancellation of his visa.
whether a minor on beginning to live in australia
47. The second primary consideration relevant in Mr Tuira’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.
48. Mr Tuira arrived in Australia on 23 November 1990, aged 4. There is no question that he has spent his formative years in Australia. I have also been provided with evidence of Mr Tuira’s family ties in Australia. His parents, who have been divorced since he was aged 15, both live in Australia as do his older brother, who is cared for by his mother, and his older sister and her family. They are all supportive of Mr Tuira. He has also aunts, uncles and cousins here. Understandably, he states this is the only country he knows and where all his family, his friends and, as he sees it, his life is.
49. This consideration therefore favours Mr Tuira’s visa not being cancelled.
length of time ordinarily resident
50. The third primary consideration relevant in Mr Tuira’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”. I note that Mr Tuira was first before Campbelltown Children’s Court at the age of 13 having been in Australia for nine years and nine months. No conviction was recorded and he was not otherwise punished. This was the first of a number of appearances before a Children’s Court as a juvenile.
51. This consideration favours Mr Tuira’s visa not being cancelled.
best interests of the children
52. Direction No 41 sets out a number of factors to be considered in ascertaining the best interests of the child. These include, relevantly, the nature of the relationship between the child and the person; the duration of the relationship including the number and length of any separations and the reasons for those separations; the extent to which the person is likely to play a full parental role in relation to the child; the child’s age, citizenship and relationships with others in a parental role; the likely effect that any separation from the person would have on the child; the impact of the person’s prior conduct on the child; any known wishes expressed by the child; and the circumstances of the probable country of future residence and any language and cultural barriers there for the child.
53. Mr Tuira has no children of his own but is said to have a good relationship with his sister’s three and a half year old daughter. She has visited Mr Tuira in prison with her mother, who says her daughter “adores her Uncle Shaun”. While I acknowledge that such family relationships are important for children, this has not been a long term relationship for his niece and Mr Tuira is not in a parental role for her. In my view, this consideration should, therefore, be accorded little weight.
OTHER CONSIDERATIONS
54. 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 Tuira’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 Tuira 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.
55. Mr Tuira said that both his close and extended family live in Australia. The Personal Details Form completed on his behalf by his father states that Mr Tuira has one uncle in New Zealand, his father’s older brother. Mr Tuira’s father told me his older brother would not be a good influence because he has spent many years in prison. He was last released from prison about a year ago. Mr Tuira’s father said he last went back to New Zealand in 2000 when his mother died. He also has some cousins there but the only contact he has with them is when someone in his family dies. He has not spoken to his cousins yet about his son’s situation but will do so if his son has to return to New Zealand and needs some help.
56. Mr Tuira’s mother said that if her son has to return to New Zealand it would affect her badly. As her youngest child, they are close, and he is very supportive with his older brother. She acknowledged, however, that if Mr Tuira is living with his father in Wollongong he would not able to help care for his brother. But she has become used to caring for her older son on her own. His mother said that if Mr Tuira is sent back to New Zealand she would probably not contact her remaining sister who lives there. Both she and Mr Tuira’s father said that while they would not consider moving back to New Zealand, they would visit their son if he has to return there, and they would try and maintain contact by phone. However, she said it will be hard.
57. Essentially, having left New Zealand at the age of four, Mr Tuira has no links there. I accept that both he and his close family will suffer emotional hardship if he has to return to New Zealand and that this may be detrimental to his mental health, risking, according to Dr Howard, a deepening of his depression. Nevertheless, at 25, he is still young.
58. I note that Mr Tuira has received one formal warning, dated 19 June 2007, when he was aged 21, stating that any further misconduct on his part would lead to consideration being given to the cancellation of his visa. Mr Tuira stated that he had no recollection of receiving this letter.
Conclusion
59. Weighing up the primary considerations, in my view, given appropriate support and abstinence from alcohol and drugs, Mr Tuira represents a low risk to the Australian community. Inevitably, in such a situation, there can be no certainty in such an assessment and much will depend upon the degree of support that Mr Tuira receives and on his self-discipline. In addition to the support of his family to which I have referred above, as Dr Howard pointed out, Mr Tuira will also need a mentor/guide, who could be, in Dr Howard’s words, “a sensitive and caring Probation and Parole Officer”. On his release into the community, Mr Tuira would, in any event, be on parole in relation to the offence of robbery until 20 September 2012.
60. The second and third primary considerations both favour Mr Tuira’s visa not being cancelled. The fact that he has been in Australia since the age of four, has spent his formative years here and that he and his close family regard this as their home, is not an insignificant consideration, particularly when the other considerations are considered and, in particular, the hardship that would be caused both to Mr Tuira and his family if he is returned to New Zealand and the effect that this might have on his mental health. I am hopeful that, as he and his family claim, he has changed and that he can become a productive member of the Australian community rather than a person from whom the community needs protection. However, it should by now be crystal clear to Mr Tuira that his conduct will be closely monitored and any further misconduct is likely to have far reaching consequences for him.
Decision
61. The decision under review is set aside and a decision substituted that Mr Tuira’s visa not be cancelled.
I certify that the 61 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President.
Signed: ............[sgd].................................................................
Casey Comans, AssociateDates of Hearing 02 November 2011
Date of Decision 10 November 2011
Representative for the Applicant Mr Cameron Jackson
Representative for the Respondent Ms Michelle Stone
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