Tuitaalili and Minister for Immigration and Citizenship
[2011] AATA 144
•3 March 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 144
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/5459
GENERAL ADMINISTRATIVE DIVISION ) Re MORELI TUITAALILI Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Ms J L Redfern, Senior Member Date3 March 2011
PlaceSydney
Decision The decision under review is affirmed. ......................[SGD]......................
Ms J L Redfern
Senior Member
CATCHWORDS – Migration – visa – cancellation – character test - substantial criminal record - whether Tribunal should exercise discretion to cancel applicant's visa pursuant to s 501(2) of the Migration Act 1958 - whether Tribunal can go behind conviction – Minister’s direction issued under s 499(1) of the Migration Act 1958 – Direction No 41 applied – protection of the Australian community – seriousness and nature of the relevant conduct – evidence from independent and authoritative sources – mitigating factors – the risk conduct may be repeated– hardship likely to be experienced by person and immediate family – formal warnings – decision under review affirmed
Migration Act (Cth) 1958 501(2), 501(6)(a), 501(7), 501(7)(c), 501(7)(d)
Direction [No. 41] - Visa Refusal and Cancellation under section 501
Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Minister for Immigration and Citizenship v Obele [2010] FCA 1445
REASONS FOR DECISION
3 March 2011 Ms J L Redfern, Senior Member BACKGROUND
1. Mr Moreli Tuitaalili is a New Zealand citizen who moved to Australia in July 1999 on a Class TY Subclass 444 Special Category (Temporary) Visa when he was 29 years old. He has continued to live in Australia since July 1999.
2. Mr Tuitaalili has a history of convictions in Australia, primarily for drug related and serious driving offences, starting from about January 2000. On 5 September 2008, Mr Tuitaalili was convicted in the District Court of New South Wales for offences relating to the stealing of a motor vehicle from a shopping centre, dangerous driving (while disqualified) and attempts to evade the police “using an offensive weapon” in a high speed chase around the streets of Surrey Hills. Mr Tuitaalili was sentenced cumulatively to imprisonment of four years and six months but a number of the sentences were concurrent and he was sentenced to a total of 2 years 6 months prison. He was released on 8 January 2009 but was again convicted on 8 December 2009 for stealing and obtaining money by deception. He was sentenced to ten months in prison, with a non-parole period of seven months and fifteen days, and was released on 8 April 2010.
3. Mr Tuitaalili has a mental illness and this has been a significant factor contributing to his criminal history.
4. Where a person does not satisfy the “character test” as set out in the Migration Act 1958 (the Act), the Minister has discretion to cancel their visa. On 19 October 2010, a delegate of the Minister decided to cancel Mr Tuitaalili’s visa. The cancellation followed two previous warnings given to Mr Tuitaalili in 2007 and 2009 in relation to the cancellation of his visa. Mr Tuitaalili has applied for a review of this decision.
ISSUES FOR DETERMINATION
5. In the present case, the Minister contends the Tribunal should affirm the decision of the delegate as the primary consideration of protection of the Australian community weighs strongly in favour of cancelling Mr Tuitaalili’s visa.
6. Mr Tuitaalili agrees his criminal history is serious but says he is taking his medication; his condition has stabilised; and, with the support of his mother and son in Australia, he has turned his life around. His offences were at the lower end of the range in seriousness and were mostly driving or drug related offences. There were extenuating circumstances that lead to his last conviction and these matters are relevant because cancellation of his visa was considered in 2008 following his conviction that year and he was given a warning on 13 February 2009. The conviction on 8 December 2009 resulted in cancellation of his visa being again considered. Mr Tuitaalili contends the Tribunal can “go behind” the facts in relation to his last conviction when weighing the relevant considerations.
7. The issue for determination is how the discretion under the Act should be exercised in the circumstances of this case. A further issue that arises is whether the Tribunal may have regard to evidence given by Mr Tuitaalili that contradicts the facts behind the 2009 conviction when undertaking this assessment.
LEGISLATIVE AND POLICY FRAMEWORK
8. Section 501(2) of 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” (s 501(7)(c)) or “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” (s 501(7)(d)).
9. Mr Tuitaalili does not satisfy the character test because of his criminal history and it is open for the Minister to cancel his visa: this is not disputed. The Minister delegated the exercise of this discretion and on 3 June 2009 issued a written Direction under s 499(1) of the Act to decision-makers about the matters to be taken into consideration when reaching a decision whether to refuse or cancel a visa, which is known as Direction [No. 41] - Visa Refusal and cancellation under section 501 of the Act (Direction No 41).
10. Direction No 41 contains a number of primary considerations and other considerations to which the decision-maker, and this Tribunal, must have regard when considering whether to exercise the discretion to refuse or cancel a visa.
11. The primary considerations in Direction No 41 are set out in paragraph 10(1):
10The 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).
12. Direction No 41 provides guidance on the range of factors which must be taken into account when assessing the primary considerations. There are also a number of other considerations that 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.
HOW SHOULD THE DISCRETION BE EXERCISED
13. All of the primary considerations that appear at para [10] of Direction No 41 must be taken into account when exercising discretion under s 501(2) of the Act. There are three primary considerations that are relevant to Mr Tuitaalili and they are:
(1) …
(a) The protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;…
(c) The length of time the person has been ordinarily resident in Australia prior to engaging in the 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);…
14. It is common ground that the other primary considerations are not relevant to Mr Tuitaalili.
15. There are also a number of other considerations which are relevant to Mr Tuitaalili that should be taken into account but “generally” they should be given less weight than the primary considerations. They include: family ties; the nature and extent of any relationships; any links to the country to which the person would be removed; hardship likely to be experienced by the person and any previous warnings.
BACKGROUND FACTS
16. Mr Tuitaalili was born on Easter Island with a Chilean father and a New Zealand/Samoan mother. He was an only child and lived in New Zealand for many years prior to moving to Australia. Records from the New Zealand Police show that Mr Tuitaalili has had a history of criminal convictions from at least 1987, when he was 16 years old. The convictions were mostly drug-related offences but there are also convictions for stealing, breaching periodic detention orders and six convictions for driving whilst disqualified.
17. Mr Tuitaalili served time in prison for these offences in New Zealand, mostly in periodic detention, and records show that between 1987 and 1996 he was convicted of 20 offences and served one year in full-time detention and approximately 35 months in periodic detention.
18. Mr Tuitaalili lived with a partner in New Zealand but she died in childbirth in 1998 and, according to the sentencing judgment of Hosking J in the District Court of New South Wales dated 28 April 2006, Mr Tuitaalili “came to Australia to try and escape his grief and make a new life for himself”.
19. Mr Tuitaalili was granted a visa in July 1999. He did not disclose his previous criminal record at the time of application for the visa. Mr Tuitaalili told the Tribunal he left New Zealand to get away from gangs. He also said that he gave evidence in Wellington against gang members and was concerned about his safety. He moved to the North Island of New Zealand for a year and had no problems with the gang during this time but he remains concerned and told the Tribunal this is one of the reasons he does not want to return to New Zealand.
20. When Mr Tuitaalili came to Australia he lived and worked in Sydney. His mother, Mrs Malae Tuitaalili, also moved to Australia at this time with Tui Tuitaalili, Mr Tuitaalili’s son, who she had raised since he was a baby. Tui was about 10 years old at the time of the move and Malae and Tui Tuitaalili lived in Brisbane close to Mrs Tuitaalili’s aunts. Mr Tuitaalili did not visit his mother and son in Brisbane for about seven or eight years while he was living in Sydney, although there is evidence that he lived with his mother and son when he first arrived in Australia for a brief period. There is also evidence that he later lived with his mother, again for a brief period, in about 2007 or 2008.
21. Mr Tuitaalili was convicted on 2 March 2000 with drug-related offences, possession of goods reasonably suspected of being stolen, common assault and possessing a prohibited article. He was sentenced to six months in prison. Two years later, he was convicted with possession of drugs and fined. On 4 April 2003 Mr Tuitaalili was convicted for driving a vehicle recklessly, driving while his licence was suspended and taking a vehicle without the consent of the owner. These convictions related to conduct on 26 June 2002. He was sentenced to 12 months prison with a non-parole period of nine months. On 10 July 2002, Mr Tuitaalili was charged with the “use of an offensive weapon to prevent lawful detention” and common assault. Mr Tuitaalili was convicted on 14 March 2003 and was sentenced to 18 months prison. He was convicted of minor drug offences in early 2005 and on 30 July 2005 was charged with numerous offences which were initially heard in the Local Court. Mr Tuitaalili appealed to the District Court of New South Wales and on 28 April 2006 Hosking J dismissed his appeals on the convictions but quashed the sentences. Mr Tuitaalili was sentenced to 12 months prison for two offences of driving while disqualified, with a non-parole period for the second conviction of four months. He was sentenced to an additional eight months prison for further offences of driving while disqualified and taking a vehicle without consent, with a non-parole period of two months.
22. In reducing his sentence, Hosking J noted that Mr Tuitaalili had been, ”declared an habitual traffic offender in April 2003. Despite all that his traffic record falls far short of many traffic records that judges commonly see in this Court.”
23. Mr Tuitaalili was released from prison on 24 November 2006 but was on parole until 24 May 2007. It was a condition of his parole that he submit himself to the supervision of the New South Wales Probation and Parole Service and accept all reasonable directions of that service in relation to drug, alcohol, emotional and mental health issues.
24. On 30 November 2006 a delegate of the Minister considered cancelling Mr Tuitaalili's visa but decided not to do so and by letter dated 13 of May 2007 warned him that any further criminal conduct would result in his immigration status being reconsidered.
25. On 8 October 2007, Mr Tuitaalili was charged with numerous offences in relation to a series of incidents that started on 5 October 2007 with Mr Tuitaalili stealing a vehicle from a car wash in a multilevel car park shopping centre. Mr Tuitaalili removed the keys from a key rack and started to drive the car away when he was approached by staff. Mr Tuitaalili drove the car towards the staff and they were forced to leap away. He left the car park through the entrance and cars were forced to take evasive action, causing some of the vehicles to have minor collisions. On the following day the police saw the stolen vehicle and followed Mr Tuitaalili through the back streets of Surrey Hills. When Mr Tuitaalili stopped at a red light police activated their sirens but Mr Tuitaalili accelerated away at speed. Police continued to follow him into Oxford Street, where he had stopped at a red light. When the police caught up to him, Mr Tuitaalili accelerated through the red light and drove at high speed down Oxford Street. He drove between two police cars, lost control of the car but regained control and drove away at speed. The police decided not to continue the pursuit because of danger to the public and themselves. There were a number of pedestrians in the area at the time. Mr Tuitaalili abandoned the car but was arrested the following day driving another car. Mr Tuitaalili was disqualified from driving until 4 April 2030 at the time of these offences.
26. Mr Tuitaalili was charged with taking the vehicle but he was also charged with “using an offensive instrument with the intention of preventing lawful apprehension”. This offence carries a maximum penalty of 12 years. In sentencing Mr Tuitaalili in the District Court of New South Wales, Tupman J stated,
Count 2, the 33B offence, is obviously a serious offence and a relatively serious incidence of this particular offence because of the number of people, both drivers in other vehicles and pedestrians and workers at the car wash, who were put at risk because of the actions of the prisoner.
In terms of those offences that are capable of being committed contrary
to this particular section, however, it is factually a little less serious because it involves the use of an instrument, namely, a motor vehicle not a weapon like a knife. Clearly enough a motor vehicle is capable of causing serious harm and has been so held by the courts. But there was no weapon used by him as such.Again, it was planned to the extent that he obtained the keys by a ruse, pretending to that the car had been put there by his wife. But in reality I accept that his commission of the offence was otherwise spontaneous, a spur of the moment offence, which I accept had its genesis in the prisoner's mental illness. That is a matter to which I will refer in due course.
It is not at the bottom of the range in terms of objective seriousness for offences capable of being charged under the section but nor is it at the top. It seems to me objectively it is about at the middle or a little below. All of these offences are aggravated because he was on bail at the time. He is not entitled to the leniency that might flow to a person of good character with no prior convictions. He has a significant criminal record, and regrettably for offences of this type.
27. Tupman J took into account Mr Tuitaalili's mental illness in sentencing:
One of the most significant aspects of this sentence is the extent to which the offender's mental illness played a part in his commission of the offences. I accept that he did commit these offences in large part because of or as a result of his mental illness. There is a significant amount of material before me, including his own evidence under oath and the report of Dr Nielssen, from which I accept that he has been suffering from mental illness from at least the age of nineteen.
He is now thirty-eight. As I understand it he was born and lived initially in the Easter Islands with both Chilean and New Zealand parentage. He has been admitted to hospital for his mental illness on three occasions over the years. I accept that his mental illness is a form of psychosis which has from time to time been diagnosed as schizophrenia. I accept from Dr Nielssen's report that he, in fact, has relapsing psychotic illness which is either schizophrenia or a schizoaffective disorder, more probably than not the latter. From time to time he has exhibited symptoms of and been treated for a manic depressive type of illness. He has auditory hallucinations when he is suffering from episodes of psychosis.
He has been receiving medication for his psychosis including from the time he was released to parole in November 2006. I accept that he was taking that medication up until a month before he committed these offences and that that medication appears to have been having the effect of keeping his mental illness under control. I accept that he had a tragic event occur about a month before he committed this offence, namely, that his then nine year old daughter was killed in a horse riding accident. She lived in Chile with her maternal grandparents. He had also had a number of other close family members die including the mother of that child, who died in childbirth. In addition to his psychosis which has been ongoing from the age of nineteen he also has been using illegal drugs including cannabis from the time he was a teenager and then started to use other drugs such as methylamphetamine and ecstasy in more recent times.
He also considered Mr Tuitaalili's prospects of rehabilitation:
His rehabilitation will be assisted by the fact that he, I accept, is likely to find and remain in fulltime employment. His prospects of rehabilitation clearly enough with his background and his difficulties could not be seen as good. They are fair. They will be significantly increased if he is able to be assisted to remain on appropriate medication for his mental illness and also it seems to me to get access to some grief counselling so that he is able to deal with other stresses that will almost certainly come his way in the future. I accept that he is genuine in his desire to accept that counselling and supervision on his release to parole.
28. On 21 October 2008 a delegate of the Minister again considered whether Mr Tuitaalili's visa should be cancelled given the convictions and sentences of 8 October 2008. His visa was not cancelled and by letter dated 13 February 2009, Mr Tuitaalili was given a second warning as follows:
Please note that visa refusal or cancellation may be reconsidered if fresh information comes to notice or if you incur liability on new grounds. Disregard of this warning will weigh heavily against you if your case is reconsidered.
29. Mr Tuitaalili was sentenced to prison for two years and six months as a result of the convictions on 8 October 2008. He served 15 months and was released on 8 January 2009. From this time, he shared premises with a friend but moved out of those premises in August 2009. The events that took place around the time Mr Tuitaalili moved out led to Mr Tuitaalili’s last conviction. According to the sentencing transcript before Magistrate Favretto on 8 December 2009, Mr Tuitaalili returned to the premises of his friend and took a laptop computer, an iPhone and a Luis Vitton bag. He stopped for petrol but failed to pay and was arrested the following day. Mr Tuitaalili pleaded guilty to charges of obtaining money by deception and stealing from a dwelling. There was no evidence before the Magistrate about special circumstances, other than evidence of his mental illness and the fact Mr Tuitaalili was not taking his medication at the time of the offences. Mr Tuitaalili was legally represented at the time he pleaded guilty and was sentenced. He was sentenced to 10 months in prison and was released on 8 April 2010, at the end of his non-parole period.
30. Mr Tuitaalili does not agree with the facts recorded in the sentencing decision and gave evidence about the circumstances that led to his convictions. The issue of whether the Tribunal should have regard to this evidence and, if so, the weight that should be afforded and the relevance of the evidence, is considered later in this decision.
31. When Mr Tuitaalili was released from prison, he moved to Brisbane to live with his mother and son, where he was living until his detention on 24 December 2010. He obtained employment in Brisbane from 3 June 2010 and was working in that employment until the time of his immigration detention.
32. Mr Tuitaalili was advised by letter from the Department of Immigration and Citizenship (the Department) dated 2 July 2010, that the cancellation of his visa was being considered. He was given 28 days to respond to the notice and he provided further information to the Department through his lawyers.
33. Sometime in July 2010, but after receiving the letter from the Department, Mr Tuitaalili arranged for his mother and son to move out of public housing accommodation into larger three-bedroom private housing. He also obtained a personal loan, jointly with Mrs Tuitaalili, to buy a car for his mother's use. Since he has been in detention, Mr Tuitaalili has not been able to contribute to the rent or repayments on the personal loan. He told the Tribunal that he has never had trouble getting work and that his old employer would likely take him back.
CAN THE TRIBUNAL “GO BEHIND” THE SENTENCING DECISION OF 8 DECEMBER 2009?
34. This issue has been considered by the Federal Court in a number of cases over the years but was most recently considered by Branson J in Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313. Branson J reviewed the previous line of authority; including the Full Court decision of the Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234. Her Honour held that whether the Tribunal could go behind a conviction and sentence would depend on whether the exercise of power operates by reference to the fact of the criminal conviction. Branson J distinguished between cases where the conviction and sentence were the foundation of the exercise of power and those where they were not. Her Honour set out five principles stated as follows,
41. First, it seems to me to be clear beyond argument that the administrative decision-maker is entitled to receive evidence of a conviction and sentence and to treat it as probative of the factual matters upon which the conviction and sentence were necessarily based (Spackman, Daniele, Gungor and SRT).
42. Secondly, the overwhelming weight of authority is that where the conviction and sentence are the foundation of the exercise of the power vested in the applicant by s 200 of the Act, the Tribunal, when reviewing the decision of the Minister, may not impugn or go behind either the conviction or the sentence (Daniele, Gungor and SRT).
43. Thirdly, although there is no absolute rule that the Tribunal may not consider material which challenges the grounds on which a prior conviction was based (Ridley at 281-282), policy considerations suggest that the legislature intended that the Act, to the extent that it is concerned with the control in the public interest of the presence of non-citizens in Australia who have been convicted of criminal offences, should be administered in a way which:
a. recognises that the criminal justice system is pre-eminently suited to the determination of the guilt of persons charged with criminal offences (see Gungor per Fox J at 445-446); and
b. limits inconsistency between decisions of the criminal courts and those of tribunals (see Gungor per Sheppard J at 469).
As a consequence, in my view, the Act should be construed as requiring a decision-maker under s 200 of the Act to treat a conviction and sentence (not being the conviction and sentence upon which the power to deport is based) as strong prima facie evidence of the facts upon which they are necessarily based so as to throw a heavy onus on a person who seeks to challenge such facts to show why they should not be accepted (see Spackman at 635). This heavy onus will, as a matter of logic, be more easily satisfied where the criminal conviction and sentence followed a plea of guilty than where the conviction and sentence follow a contested factual hearing.
44. Fourthly, although a decision-maker under s 200 of the Act may, in a case in which the heavy onus on a person who seeks to challenge the facts essential to a criminal conviction and sentence (other than that on which the power to deport is based) is satisfied, accept evidence which contradicts such facts, he or she is not entitled to reach or express a view that the person was wrongly convicted (see Saffron per Lockhart J at 592).
45. Fifthly, the above limitations on the matters to which a decision-maker under s 200 of the Act is entitled to have regard do not mean that the decision-maker is not (subject to such limitations) to make his or her own assessment of the entirety of the conduct of the person whose deportation is under consideration, including the nature and seriousness of conduct which led to convictions and the significance of such conduct so far as the risk of recidivism is concerned.
35. In the present case, Mr Tuitaalili gave evidence that he did not steal the iPhone and the computer, which was in the Luis Vitton bag, was taken to exchange for dog food at the local convenience store. Mr Tuitaalili told the Tribunal there was a “misunderstanding” and there had been some conflict between Mr Tuitaalili and his friend at the time of the commission of the offences. The nature of this “misunderstanding” and “conflict” was not explained during the hearing, although it was proposed that another witness would give evidence about the circumstances that gave rise to the convictions. The witness was not available for cross-examination and did not appear at the hearing so it was ultimately unnecessary for the Tribunal to consider the evidence of this witness.
36. Mr Tuitaalili contends that the convictions and sentence of 8 December 2009 were not the foundation for the exercise of power under s 501(2) of the Act and therefore the Tribunal can have regard to the evidence. The Minister contends that these convictions, together with the previous convictions, were the foundation for the exercise of the cancellation power by reason of s 501(7)(d). Section 501(7)(c) also provides a basis for discretion given that Mr Tuitaalili was sentenced to prison for more than 12 months as a result of the convictions on 5 September 2008. It is not clear from the decision of the delegate but it is clear from the submissions that the basis for the discretion was s 501(7)(d), rather than s 501(7)(c) of the Act. The Department may not have sought to rely on s 501(7)(c) in this case because there had already been a prior consideration of cancellation following the sentence of 5 September 2008 and the delegate decided not to cancel at that time. This may be why the provision relating to multiple convictions was considered to be relevant. A review by the Tribunal is not in the nature of an “appeal” against the decision of the delegate of the Minister but a merits review of the correct and preferable decision. As such, the actual ground used by the delegate to exercise the discretion is not relevant as it is conceded the discretion to cancel is enlivened by both provisions. The Minister contends that where a person satisfies more than one of the grounds in s 501(7) each of the relevant sections must be regarded as a foundation for the exercise of the cancellation power. I accept this submission.
37. In Minister for Immigration and Citizenship v Obele [2010] FCA 1445, Katzmann J confirmed that the Tribunal could not go behind the convictions or the essential facts on which they were based but could take into account the circumstances in which the crimes were committed where the sentencing judge made no findings to the contrary.
38. In view of the authorities, I do not propose to have regard to the evidence of Mr Tuitaalili for the purpose of impugning his convictions and sentence on 8 December 2009. I can have regard to the evidence that there was a misunderstanding about the computer and that there was conflict with Mr Tuitaalili’s former friend and flatmate that may have led to the charges but I cannot accept his evidence about the iPhone. Mr Tuitaalili's evidence about the reason he took the computer and the conflict with his friend is not inconsistent with the essential facts set out in the sentencing remarks. While I may have regard to his evidence, I place little weight on it. First, it seems implausible that a computer would be exchanged for dog food. Secondly, it was not raised as a mitigating factor on sentencing and Mr Tuitaalili was legally represented.
39. In giving his evidence, Mr Tuitaalili attempted to minimise the seriousness of the last convictions and sentence because he knew he had been given a second warning about cancellation. There may have been conflict between Mr Tuitaalili and his friend but the evidence is that he took the computer and computer bag, which were valuable, and was sentenced to ten months in prison. This was serious although the sentence was in the lower range. Two of the factors considered by the Magistrate on sentencing were Mr Tuitaalili’s previous record and the fact he had failed to comply with his parole condition of taking his medication. In my view, the most material factor raised at the sentencing hearing was the fact that Mr Tuitaalili was not taking his medication at the time of the offence. This issue is relevant to the primary consideration of “protection of the Australian community” and, in particular, whether there is a risk Mr Tuitaalili may reoffend.
PROTECTION OF THE AUSTRALIAN COMMUNITY
40. Direction No 41 identifies two factors relevant to protection of the Australian community: the seriousness and nature of the relevant conduct, and the risk that the conduct may be repeated.
41. Paragraph 10.1.1(1) of the Direction states 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(2) lists examples of categories of offences and conduct that are considered to be serious. Mr Tuitaalili contends that the majority of his offences are minor drug or driving related offences. There are some stealing offences, but they mostly relate to motor vehicles. Mr Tuitaalili is an habitual traffic offender and has been disqualified from driving for the next 20 years. He has a long history of disregarding these disqualifications in both New Zealand and Australia. These offences are not in the category of “serious” offences identified in the Direction. However, the categorisation of the offence is not the only matter to be considered and paragraph 10.1.1(3) of the Direction provides:
(3) The sentence imposed for an offence is considered indicative of the seriousness of the offender's conduct against the community. Due regard must be given to the extent of the person's criminal record, including:
(i) the number and nature of offences;
(ii) the period between offences; and
(iii) the time elapsed since the most recent offence.
42. Since Mr Tuitaalili has been in Australia over the past 12 years, he has been convicted of at least 29 offences and has been sentenced to approximately 9 years in prison but has served about 3 years as part of the non-parole period. His offending commenced within six months of arriving in Australia.
43. Mr Tuitaalili has been charged with dangerous driving on numerous occasions and with “using an offensive weapon” to avoid arrest twice. He has been convicted of driving while disqualified on at least 10 occasions. These are serious offences, given the potential to injure or kill innocent pedestrians or drivers and their passengers, and it has been fortunate that no serious accidents have been caused by Mr Tuitaalili's conduct to date.
44. Under paragraph 10.1.1(4)(b) of the Direction any mitigating factors should be taken into account when considering the seriousness of the conduct. In this case, it is clear Mr Tuitaalili has a serious mental illness. According to Dr Olav Nielssen, who examined Mr Tuitaalili in 2008, he has a “schizo-affective disorder or a relapsing psychotic illness with features of both schizophrenia and manic depressive illness”. It is unclear when this condition was diagnosed but there is evidence that Mr Tuitaalili was not diagnosed with a mental illness until he first came to Australia. Mr Tuitaalili gave evidence that his treatment was not effective or stabilised until his imprisonment in 2007, when he was treated in the mental health facility of the prison. He told the Tribunal that before this time he had difficulty with his medication and it would make him feel drowsy or did not work properly. Mr Tuitaalili is now on Epilum, which is a mood stabiliser, and Seroquel, which is an anti-psychotic, and he told the Tribunal he always takes these tablets morning and night. It is common ground that Mr Tuitaalili's mental illness has contributed to his criminal conduct and the evidence suggests that the most serious offences were committed when Mr Tuitaalili was not taking his medication and was under some emotional strain and/or was using illicit drugs.
45. Paragraph 10.1.2 of the Direction provides guidance as to the factors to be considered when assessing the risk of any reoffending. The person's “previous general conduct and total criminal history are to be considered highly relevant” (10.1.2(1)) and factors such as the recent history of convictions, evidence of rehabilitation already achieved or evidence of breach of previous orders are relevant to such an assessment (10.1.2(2)).
46. In assessing whether there is a risk that Mr Tuitaalili may reoffend, it is relevant to consider his history of repeated breaches, both in New Zealand and Australia. It is also relevant that many of the offences were committed when Mr Tuitaalili was either on bail or parole. When sentencing Mr Tuitaalili in September 2008, Tupman J observed that Mr Tuitaalili's prospects of rehabilitation “could not be seen as good”. The Minister contends that little has changed since that time.
47. The Minister also contends that even though Mr Tuitaalili's mental illness is a mitigating factor, “the presence of the illness itself increases the likelihood of future offending”. There is an important caveat to this somewhat sweeping statement. Mr Tuitaalili's criminal history shows that when his condition is not being properly treated, he is not taking his medication and he is taking drugs, there is a high risk he will reoffend. Mr Tuitaalili told the Tribunal he has been compliant in taking his medication and since he has returned to live with his mother in Brisbane, he has had no problems and is “feeling good”. Mr Tuitaalili says he should have stayed living with his mother and son as their love and support would have provided a stabilising influence on him. He has changed. He was helping his mother around the house, assists in providing guidance for his son, was working in full-time employment until the time of his immigration detention and was successful in obtaining a personal loan for a car. Mr Tuitaalili regrets his past and says he mixed with the wrong crowd and “self medicated” on drugs when he was feeling confused or depressed. He recognises that this made his condition worse and he told the Tribunal he would not do this again.
48. Mrs Tuitaalili gave evidence that her son was now listening to her advice and has been a great support to her since he has been living at home. Mr Tui Tuitaalili told the Tribunal he believed his father had changed. He had heard his father was previously violent but while his father was living in the house, this had not been the case. He told the Tribunal his father was very supportive of both him and his grandmother and when he was not working Mr Tuitaalili would do the housework and cooking. Tui developed a close relationship with his father since he came to live with him and his grandmother in Brisbane.
49. I accept Mr Tuitaalili is ashamed of his past and he is attempting to rehabilitate himself by staying with his family and taking his medication. There is evidence he has achieved some success as he has not been involved in any offending criminal conduct since he was released from prison in early April 2010, although it must be acknowledged this is a short period of time to test his resolve given Mr Tuitaalili has been in immigration detention for the past two months. Mr Tuitaalili’s mother and son support his evidence, although there is no independent evidence about his current condition and compliance with medication, apart from a short letter from his case manager at Logan Central Mental Health Service dated 30 July 2010. Ms Penny Carrim simply notes that Mr Tuitaalili is no longer a patient at the service.
50. Before Mr Tuitaalili’s sentencing hearing on 28 April 2006, his case was assessed by Ms Kelly Sampson, Probation and Parole Officer. In a Pre-sentencing report dated 20 April 2006, Ms Sampson referred to Mr Tuitaalili’s failure to take medication and “self medicate” and stated “he would benefit from professional support” to address these issues but would need “a commitment to effect change” for his rehabilitation. There is no evidence Mr Tuitaalili has sought ongoing professional support, in fact there is evidence to the contrary. Mr Tuitaalili told the Tribunal he has not been seeking any treatment, apart from his medication, as he does not consider he needs treatment or counselling. He said he has his mother now and she is providing him with all the support he needs.
51. The Minister submits there is a real risk Mr Tuitaalili will reoffend. Mr Tuitaalili returned to live with his mother a few years ago but despite the fact they were, in Mrs Tuitaalili’s words, a “family working and supporting each other”, Mr Tuitaalili “fell into a bad crowd” and left home. The Minister argues that it is possible this will happen again and, if so, there is every prospect Mr Tuitaalili will reoffend. In the absence of evidence to the contrary, such as a report from a health care professional about Mr Tuitaalili's current condition and prospects or evidence of a sustained period of abstinence from drugs and compliance with medication, I agree.
52. Given the seriousness of Mr Tuitaalili's persistent breaches, their potential for harm (albeit unintended) and the real risk Mr Tuitaalili will reoffend, I find that the protection of the Australian community weighs heavily in favour of cancelling Mr Tuitaalili's visa.
LENGTH OF TIME LIVING IN AUSTRALIA
53. Direction No 41 directs favourable consideration to lengthy residence in Australia but expressly limits such consideration to ordinary residence “prior to engaging in criminal activity or activity that bears negatively on their character”.
54. Mr Tuitaalili arrived in Australia in 1999 and has lived in Australia, with only three days absence, for 12 years. He has strong family ties in Australia and had full time employment until his immigration detention. However, the evidence is he committed criminal offences within six months of arriving in Australia. He was convicted for possessing stolen goods, possession of illicit drugs and common assault in March 2000 and was sentenced to six months in prison. Mr Tuitaalili has spent many years in Australia but has also spent lengthy periods in prison.
55. In these circumstances, little weight should be given to the length of time Mr Tuitaalili has lived in Australia.
BEST INTERESTS OF THE CHILD
56. Mr Tuitaalili has a 12 year old daughter in Australia, who lives in Sydney with her mother. When cancellation of Mr Tuitaalili’s visa was considered in 2008, Mr Tuitaalili’s daughter and her mother provided written support for him. At the time, the mother confirmed that Mr Tuitaalili had kept regular contact with them, provided some financial support and that her daughter “thinks quite highly of her father and I hope that if Moreli is allowed to stay in the country, that they would form a closer bond”.
57. Since that time, Mr Tuitaalili was again convicted and his former partner has refused to provide her support to this application. Mr Tuitaalili says he still talks to his daughter over the telephone but his daughter’s mother will not allow him to see his daughter until he rebuilds trust by proving that he can stay out of prison. Mr Tuitaalili gave evidence that he agrees with the mother’s decision but he would like to rebuild the relationship with his daughter in the future and this will be very difficult if he returns to New Zealand.
58. The Minister submits that there has been little face to face contact between Mr Tuitaalili and his daughter in the last few years. There is no evidence about his daughter’s views and whether it would be in her best interests. At its highest, she may be deprived of developing a closer relationship with Mr Tuitaalili. In any event, Mr Tuitaalili and his daughter can still talk regularly on the telephone. Mr Tuitaalili’s daughter is being cared for by her mother and there is no suggestion this will change or that Mr Tuitaalili has ever provided such a role. I accept this submission but nonetheless find that it would be in the best interests of his daughter for Mr Tuitaalili to maintain contact with her over the next six years before she becomes an adult. Much will depend on whether Mr Tuitaalili is able to rehabilitate himself and keep out of prison, which is also relevant to the first primary consideration of protection of the Australian community. On balance, this consideration is favourable to Mr Tuitaalili but in the circumstances of this case does not outweigh protection of the Australian community.
OTHER CONSIDERATIONS
59. The other considerations relevant to Mr Tuitaalili are: family ties and the extent of disruption to Mr Tuitaalili’s family; Mr Tuitaalili’s health; his links to New Zealand; hardship likely to be experienced by Mr Tuitaalili or his family living in Australia, and prior warnings given to Mr Tuitaalili.
60. There is evidence Mr Tuitaalili has strong ties with his mother and son and few familial ties in New Zealand. There is evidence that Mr Tuitaalili’s mother is unwell and she has come to rely on him since he returned home. There is also evidence that she is now in difficult financial circumstances because she cannot pay the increased rent, there is a long waiting list to for re-entry to public housing accommodation and she cannot afford to repay the loan for the car. Mrs Tuitaalili has relied on Mr Tuitaalili’s income and his support around the house. She is elderly and unwell but not bedridden and still very active for someone of her age. She is waiting for an operation on her kidneys. If Mr Tuitaalili returned to New Zealand she said she would not be able to visit him as she is on a pension.
61. Tui Tuitaalili, while no longer a child, would also be affected if Mr Tuitaalili’s visa is cancelled. He gave evidence he has established a good bond with his father and he would miss this. He would probably be unable to afford to travel to New Zealand to visit his father. It would also be difficult for him to look after his grandmother by himself if his father has to leave Australia. Tui Tuitaalili has increased his hours at work and pays most of his earnings for the rent and the repayments on the loan. He told the Tribunal he assisted his grandmother when she was unwell and these pressures were “very stressful at the moment”.
62. While Mr Tuitaalili has only recently been reunited with his mother and son, I accept the evidence of all three that they have become a close family unit. Because of the changed circumstances, Mrs Tuitaalili moved out of her public housing accommodation into a larger property, which is now imposing a heavy financial burden on both her and Mr Tuitaaili’s son. Mr Tuitaalili took out a loan with his mother so she could have a car. This was no doubt done with good intentions. However, this has added to her financial burden and she has limited means to repay the loan. Mr Tuitaalili’s mother and his son have relied on his income since June 2010. Mr Tuitaalili told the Tribunal he would find it difficult to assist if he returned to New Zealand as he would have to find a job and pay his own expenses. While there is evidence Mrs Tuitaalili has friends and family in Brisbane and has looked after herself for many years, I accept there are now additional burdens, including health concerns that will impact adversely on Mr Tuitaalili’s mother and son if his visa is cancelled. As Mrs Tuitaalili gets older she may need more care and assistance than Tui Tuitaalili, who is still young, will be able to provide. These considerations weigh in favour of not cancelling Mr Tuitaalili’s visa.
63. Mr Tuitaalili has some family in New Zealand and spent most of his formative years there. He therefore still has substantial links with New Zealand and there is no reason why he could not obtain employment and resettle there. He told the Tribunal he is very concerned about the gangs that he was involved with years ago, but there is no evidence of any risk, contact or threat and this concern is speculative. This factor does not weigh against cancellation.
64. Mr Tuitaalili will be able to get the appropriate treatment for his mental illness in New Zealand but the key issue is that he will not have the support of his immediate family, especially his mother. There is evidence that emotional strain impacts negatively on his mental condition and there is some evidence, although no expert medical evidence, that the support of his family may assist with his rehabilitation and mental health. Against this, Mr Tuitaalili spent some time living with his mother a few years ago and still struggled. The difficulty is that there has been insufficient time since Mr Tuitaalili was released from prison in April 2010 and returned home to live with his family to assess the long term impact of this. On balance, this counts against cancellation.
65. A further consideration is the previous warnings given to Mr Tuitaalili in 2007 and 2009. It is relevant that Mr Tuitaalili was involved in the commission of another offence only seven months after being released from prison and within six months of the formal written warning. Mr Tuitaalili gave evidence to explain the context of these convictions but the explanations were incomplete and implausible. Mr Tuitaalili was not taking his medication at the time of the offences and there is evidence he was in a very confused state when he first appeared in Court. Mr Tuitaalili gave evidence that he knew the consequences of the warning but the fact that he still offended is the core of the problem. His mental illness is exacerbated by illicit drugs and needs to be regulated by medication. If not, Mr Tuitaalili has little control. Mr Tuitaalili did not wilfully breach but he nonetheless did so and this counts against him.
66. These considerations are all relevant: two weigh in favour of cancellation and two against. The most significant are Mr Tuitaalili’s family ties and the impact cancellation will inevitably have on his mother and son. There may also be a negative impact on his mental health and wellbeing, but this is less certain. It is not simply a question of undertaking a mathematical calculation to assess where the merits lie. In the present case, the evidence of prejudice to Mr Tuitaalili’s family in Australia if his visa is cancelled is identifiable and significant. I therefore give this matter considerable weight but accept it must be balanced against the primary considerations.
CONCLUSIONS
67. The balancing exercise in this case is particularly difficult. The protection of the Australian community weighs heavily in favour of cancellation but the considerations in relation to his daughter, the likely negative impact on his mother and son and the possible affect on his mental health are all factors that weigh against cancellation. The question is – do they outweigh the protection of the Australian community in this case?
68. This first primary consideration must necessarily be considered a significant factor. A substantial majority of Mr Tuitaalili’s offences are at the lower end of the scale in seriousness but it is the frequency and persistent nature of the breaches that are the key concern. Mr Tuitaalili’s mental illness has contributed to his criminal history and he is likely to reoffend if he does not remain compliant with his medication. Mr Tuitaalili says he has been compliant for the past eleven months, although there is no independent evidence to support this. There is evidence from his mother and son that Mr Tuitaalili has changed, which suggests his condition is stable and he is taking his medication, but it is too early to say whether this will be lasting. He is not receiving any regular treatment and counselling because he does not consider he needs it. Given the seriousness of Mr Tuitaalili’s illness, this is of concern.
69. Mrs Tuitaalili has asked that her son be given a second chance. Because of the two previous warnings, the Tribunal is in fact being asked to give a third chance. If Mr Tuitaalili reoffends and commits similar dangerous driving offences to those previously committed, there could be serious and tragic consequences for innocent bystanders. There is a high risk Mr Tuitaalili will reoffend if he does not take his medication and/ or takes illicit drugs. This has been his history since he was at least 16 years old. His condition was not diagnosed until some years later, but Mr Tuitaalili has been aware of his illness and the potential impact of his failure to take medication and “self medicate” since at least April 2006. He nonetheless continued to be non compliant and further offend. I am not satisfied on the evidence before me that Mr Tuitaalili has resolved those issues or has sufficient insight to appreciate the importance of treatment and medication.
70. Having taken into account the primary and other considerations, it is my view that the discretion should not be exercised in Mr Tuitaalili’s favour and I affirm the decision of the Minister.
I certify that the 70 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J L Redfern, Senior Member.
Signed: ..........................[SGD]....................................................
N. Olson, AssociateDates of Hearing 9 February 2011, 14 February 2011
Date of Decision 3 March 2011Solicitor for the Applicant H. Murdoch, Parish Patience Immigration Lawyers
Solicitor for the Respondent G. Johnson, DLA Phillips Fox
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