Tumai and Minister for Immigration and Citizenship
[2012] AATA 53
•1 February 2012
[2012] AATA 53
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/4891
Re
Daniel Tumai
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 1 February 2012 Place Brisbane The Tribunal substitutes a decision that the visa not be cancelled.
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Senior Member
VISA CANCELLATION ─ character grounds ─ primary considerations ─ protection of the Australian community ─ best interests of the child ̶ decision under review substituted
Migration Act 1958 ss 499, 500(6L), 501
REASONS FOR DECISION
1 February 2012 Senior Member Bernard J McCabe
Mr Daniel Tumai is a New Zealand citizen who has resided in Australia since 1992. He has a lengthy criminal record. On 28 October 2011, the Minister for Immigration and Citizenship decided to cancel Mr Tumai’s visa on character grounds under s 501 of the Migration Act 1958. The applicant has asked the Tribunal to reconsider that decision. I note the review of this decision must be completed within 84 days after the applicant was notified of the decision in accordance with the Act: s 500(6L). The respondent has confirmed that today is the last day within that 84 day period.
There is no dispute that the discretion to cancel the applicant’s visa in s501(2) has been enlivened because Mr Tumai has failed the character test imposed by s 501. Specifically, the Minister is entitled to assume the applicant is unable to satisfy the character test because he has a substantial criminal record within the meaning of s 501(7). The applicant has a substantial criminal record because has been sentenced to at least one term of imprisonment of at least 12 months. In fact, the applicant has been sentenced to prison terms of at least 12 months on more than one occasion.
The case before me focuses on whether the Minister should exercise the discretion to cancel the applicant’s visa in all the circumstances. In reaching a decision, I am required to follow the guidance provided by Direction No 41 – Visa Refusal and Cancellation under s 501, which is published by the Minister, and which is binding on the Tribunal pursuant to s 499. The Direction identifies four primary considerations which must be taken into account. It also refers to other relevant considerations, although it contemplates the primary considerations will carry the greatest weight. I will deal with each of the primary considerations first.
PRIMARY CONSIDERATION ONE: PROTECTION OF THE AUSTRALIAN COMMUNITY
The Direction emphasises the importance which is attached to the objective of protecting the Australian community from unacceptable risks of harm at the hands of those who have come to this country and committed crimes. In order to assess the extent of the risk posed by an individual, the Direction requires that I look to (a) the nature and seriousness of the conduct in question and (b) the risk of that harm occurring. I will deal with each limb of the inquiry in turn.
The applicant’s criminal record was tendered at the hearing. It is lengthy. His offending began soon after he arrived in this country as a juvenile and continued once he became a resident. The record includes a number of assaults, some property offences and vehicle offences (such as drink-driving and driving while disqualified). There are also a number of obviously minor offences, including offensive language, and a number of convictions for breaching supervision orders. I was not provided with a great deal of evidence about the circumstances of most of the offences referred to in the record apart from the most recent matters.
I note that the record includes a number of crimes involving violence, and that offences involving violence are properly regarded as being serious matters. I also note the applicant has a poor track record of complying with supervision arrangements and orders.
I was provided with information about the applicant’s convictions in October 2010 for assault. The two assaults arose out of a domestic confrontation with the applicant’s former de facto partner and her friend on 1 May 2010. The applicant explained he and his former partner had been together for nearly 11 years. He said they loved each other but acknowledged they had a volatile relationship which led to domestic violence and disputation. On the night in question, Mr Tumai had been baby-sitting at his former partner’s residence while she was having a night out. He was there at her invitation even though he was subject to a domestic violence order that required him to stay away from his former partner. The applicant and his former partner had both consumed alcohol. When his former partner returned from her night out, an argument ensued and the former partner was injured. A friend who came to her aid was also injured: her wrist was broken. There was some dispute on the evidence over whether the friend’s wrist was accidentally broken in a scuffle, or whether the applicant had actively tried to injure her when she intervened. At the sentencing hearing before the Redcliffe Magistrates’ Court on 1 October 2010, the police prosecutor suggested the friend’s injury occurred as a result of an attack by the applicant, but Mr Tumai says that is not correct. Given Mr Tumai’s lawyer did not offer a challenge to the police account at the sentencing hearing, I think I should accept that version of the facts. The former partner was left bleeding and bruised. Mr Tumai was arrested and charged with two counts of assault.
The magistrate spoke sternly to Mr Tumai at the sentencing hearing. His Honour referred to the applicant’s extensive criminal record and the serious nature of the injuries sustained by the two women. He decided the only appropriate sentence was imprisonment in respect of the two assaults. But his Honour directed that the applicant be given immediate parole, so that he was released from custody on that day. The fact that two prison sentences of 12 months were imposed suggests the assaults should be regarded as being serious. But the sentences and his Honour’s remarks should be read in light of the fact the magistrate saw fit to release the applicant immediately.
I note the sentencing magistrate warned the applicant he could expect to be in serious trouble and might be deported if he were to re-offend. That warning comes on top of earlier written warnings sent to the applicant by the Department of Immigration and Citizenship in 2005 and 2007: see exhibit one at pp 117-122. The applicant was clearly on notice that further trouble might result in visa cancellation.
The applicant did not take the magistrate’s warning seriously. While on parole, he continued to smoke marijuana. Traces of cannabis were detected during the regular drug tests he was required to undertake as one of the conditions of his parole. But that was not the problem. He also took amphetamines on at least one occasion. Traces of the drug were detected in his urine sample. The parole authorities reacted to the amphetamine use in particular, as well they might: the applicant has a history of amphetamine abuse which he acknowledged made him paranoid and aggressive. Amphetamine and alcohol abuse were obviously important contributors to the applicant’s bad behaviour in the past. News that the applicant had used amphetamines was particularly worrying in the circumstances. His parole was revoked and he was returned to prison.
Mr Tumai was also convicted of driving while disqualified during the period following his conviction in October 2010 before his parole was revoked. After completing his sentence, he was transferred to immigration detention. He said at the hearing that there were extenuating circumstances, but he regretted doing what he had done.
I have already acknowledged that a number of the applicant’s offences – most obviously the two assaults for which he was sentenced to gaol in 2010 – are serious. The balance of his record features, for the most part, less serious conduct. His record suggests he may be a risk to anyone with whom he has a domestic relationship, and perhaps a danger on the road given his predilection for driving whilst disqualified following drink-driving offences ten year ago. He is also a pest to the police and the parole and probation authorities.
The applicant’s offending does not appear to be increasing in severity. After being a prolific offender in his earlier years, his bad behaviour has moderated. That is not altogether unexpected as he matures. There is a gap of several years between his convictions in 2006 and the offences in 2010, although he has since been convicted of driving whilst disqualified. But important contributors to his offending remain. He continues to drink (he admits he is a binge drinker) and he has taken amphetamines in recent times – even though he knows he was subject to drug screening. I was told about a history of sexual abuse that might have led to anger management issues, but it is unclear whether that history has been dealt with.
I note the applicant’s evidence that he had sought professional counselling following his convictions in 2010. He said he attended about seven sessions with a counsellor before he was taken back into custody after failing the urine test. He was seeking help in relation to his substance abuse issues, his relationship problems and other matters. I was not provided with a report from the counsellor, or from any other expert. I accept the applicant was seeking help, which is encouraging.
The established pattern of offending and the ongoing presence of alcohol and perhaps other drugs in the applicant’s environment are especially problematic. He has been warned previously of the consequences of re-offending, but he has not taken those warnings to heart – even where he knew that re-offending (eg, drug-taking) would be detected in drug analysis.
The applicant appears to be genuinely remorseful for his bad behaviour in the past. He says he has a renewed commitment to living a useful life because his children need him. I accept his evidence on this point was given honestly. He unreservedly accepted responsibility for his actions in the past. Importantly, he appreciates he cannot reside with his former de facto partner, who was present at the hearing. As the sentencing magistrate observed in his remarks, that reduces the likelihood of further domestic offences. I note he already has accommodation available and good prospects of employment upon his release if he is able to remain in this country.
In all the circumstances, I think there is a significant risk that the applicant will re-offend, although it is unclear whether that re-offending is likely to be especially serious. I am satisfied the first primary consideration weighs against the applicant remaining in this country.
PRIMARY CONSIDERATION TWO: WHETHER THE PERSON WAS A MINOR WHEN THEY BEGAN LIVING IN AUSTRALIA
The applicant first came to Australia when he was a minor in 1986. His family had broken down and his mother, step-father and father had all moved here. He followed them after being raised in New Zealand by relatives. He lived with his mother at first, although he also spent time with this father. He committed offences while a minor and returned to New Zealand twice before finally coming to live here in 1992. He was an adult person by that time. I am satisfied that this primary consideration does not assist the applicant in the circumstances.
PRIMARY CONSIDERATION THREE: THE LENGTH OF TIME THAT THE APPLICANT WAS A RESIDENT IN AUSTRALIA BEFORE ENGAGING IN CRIMINAL CONDUCT
Mr Tumai began offending soon after he arrived in Australia to live here. His first conviction after coming to live here as an adult was for offensive language in March 1993. He was convicted of further offences in November 1993. While I acknowledge the applicant has lived for a comparatively long time in Australia – he says, and I accept, that he regards Australia as his home – he was only here for a short time before he began to offend.
I accept the applicant has established links in the community, most obviously with his family members who reside here. He has been employed in this country in the past, and one of his former employers was present at the hearing. While those links might suggest a better chance of rehabilitation if he stayed and greater hardship if the applicant were removed after having been here for so long, the Direction refers to the length of time the applicant is here “prior to engaging in criminal activity…”. In this case, the applicant started offending soon after he arrived here. In those circumstances, I do not think this consideration can be said to assist the applicant. Indeed, it actually counts against him.
PRIMARY CONSIDERATION FOUR: INTERNATIONAL OBLIGATIONS – ESPECIALLY THE RIGHTS OF THE CHILD
The Direction requires that I consider whether cancelling the applicant’s visa will contravene any of Australia’s human rights obligations under various international treaties. The only international obligations that might arise in this case are those which are owed in respect of the applicant’s five children. The Tribunal is required to consider the best interests of those children.
Mr Tumai has regular contact with his five children, all of whom are under 18. I accept they did not regularly visit him in prison, although I do not read anything into that. He said prison was no place for a child.
The applicant lived with the younger four children and their mother before his relationship with the mother broke down. I note there is evidence that the children were present in the house when at least one of the incidents of domestic violence (the one which resulted in the assault charges in 2010) occurred. That does Mr Tumai no credit. The volatile relationship between Mr Tumai and his former partner is unlikely to have provided a healthy environment for the children. Even so, I would not say the children are better off without regular access to Mr Tumai. I accept from his evidence that he wishes to play a positive role in the upbringing of the children. While he acknowledged difficulties in the relationship with his former partner that made it impossible for them to continue living together, I note she was present in the hearing room during the course of the hearing. She had brought all of the children with her. Mr Tumai’s ambition to be a better father appears to have some substance.
In all the circumstances, I think the best interests of the younger four children who reside with their mother are served by continuing to have access to their father, albeit that he will not live with them. I note the applicant plans to reside in an area not far from where the family live so he has ready access to them. Those children have had ongoing relationships with their father, even though the relationships have been interrupted by the applicant’s time in prison. I think it is in their best interests that the applicant be allowed to stay.
The interests of the applicant’s eldest daughter need to be considered separately from the other children because her circumstances are different. She previously resided with her mother, who was a former partner of the applicant. The daughter, a teenager, came to live with the applicant before he was sent to prison most recently. I was not given a comprehensive or independent account of the circumstances that caused her to leave the care of her mother and move in with her father. The applicant alluded in his evidence to the girl’s mother having personal problems and a poor relationship with her daughter. Importantly, I note the applicant’s daughter now resides with the applicant’s former de facto and his other children. Mr Tumai said his eldest daughter will come to live with him as soon as practicable.
I did not have the opportunity to question the applicant’s eldest daughter because she had not provided a statement within the required time, which engaged the two-day rule in s 500(6J). But the evidence that she now lives with the applicant’s former partner in anticipation of his release from custody suggests his relationship with her assumes particular importance. He will play a parental role in relation to that child; in his absence, it is unclear who would be in a position to look after her. I understood from the evidence there is no suggestion of her returning to live with her own mother. I am satisfied the evidence establishes the best interests of the applicant’s teenage daughter from an earlier relationship strongly favour allowing the applicant to remain in this country.
OTHER CONSIDERATIONS
The Direction requires that I consider a number of other matters that may be relevant, although those matters do not carry the same weight in my deliberations as the primary considerations: clause 11(2).
I have already noted the applicant has established family ties in this country. His mother, step-father and father reside here. His mother travelled to the hearing from Perth. She said she had not seen her son in a year but remains close to him. She took out a loan from Centrelink so she could travel to be at his side. She has experienced serious health problems in recent times and says she needs her son’s support.
The applicant’s mother is obviously committed to her son, although there is no suggestion he would move to Perth, or that she would move to Queensland. It may not make much difference if he were living in New Zealand while she remains alive and well: he can be reached by phone in New Zealand almost as readily as he can be contacted in Queensland. Even so, the applicant would be unable to travel to Perth from New Zealand in the event of an emergency if he did not have a visa. I accept that cancelling the applicant’s visa may result in hardship for the applicant’s mother.
Mr Tumai’s relationship with his former de facto remains close, according to his evidence, although he acknowledges they will not live together again. I have already noted she was present at the hearing, and that she raises their children as well as his eldest daughter. He also appears to have a relatively close ongoing relationship with all of the children. The relationship with his eldest daughter is of particular importance for present purposes. I understand all of the children are Australian citizens. There is no suggestion they would return to New Zealand with their father. The relationships would be disrupted if their father’s visa were to be cancelled.
I am not aware of any other business or employment ties or other relationships that would be disrupted if the applicant were not permitted to stay in Australia.
Mr Tumai is 37 years of age. He appears to be in good health. He also appears to be intelligent, albeit uneducated. He possesses skills and work experience that will help him get work in New Zealand if he is required to return there – although his skills would also be in demand in Australia. He has family and other links to New Zealand, and he speaks the language. He would not be returning to a place he did not recognise.
I am satisfied Mr Tumai was able to present his case competently and act as an advocate in his own cause.
The applicant’s immediate family is not in a position to visit the applicant in New Zealand on a regular basis if he were required to return there. While his children could presumably maintain telephone or internet contact and visit their father on holidays, they would be deprived of regular personal interaction with him. I have already concluded that is not in their best interests. His absence would be a hardship for all of his children, but especially for his eldest daughter who no longer resides with her mother. The vulnerability of her position is a particular worry.
The last matter that remains to be considered is whether the applicant has previously been warned of the possibility his visa might be cancelled. He has been warned several times, in fact: by the Department of Immigration and Citizenship in 2005 and 2007, and again by the sentencing magistrate in the course of his remarks in 2010. The applicant failed to heed those warnings. That must count against him.
WEIGHING UP THE COMPETING CONSIDERATIONS
The applicant has a long record which includes several serious offences. I have already observed there is a real risk the applicant will commit further offences, albeit it is unclear whether the offences are likely to be especially serious. One of the risk factors is the applicant’s involvement in a domestic relationship with his former partner, but that risk is reduced by the fact the two are no longer together. The applicant’s ongoing consumption of alcohol and perhaps illicit drugs continue to be a problem. I accept the applicant is no longer a regular user of amphetamines, although he has given into the temptation to use the drug on at least one occasion in recent times.
Mr Maclaren, for the respondent, pointed out the Direction is particularly concerned with protecting the Australian community from risk. He is right; that much is obvious from the objectives identified in the Direction itself. The community is entitled to be cautious about the risk of an applicant committing further offences, especially where the consequences of that offending are serious. But the community can be expected to be more tolerant where the consequences of offending are less serious. In Mr Tumai’s case, the consequences of his offending may be less serious provided stays out of his former partner’s household.
Even so, repeat I am satisfied the first primary consideration weighs reasonably heavily against the applicant. The second and third primary considerations do not assist him (indeed, the third consideration weighs against him). But the last primary consideration – relevantly, the best interests of his children – weighs in favour of the applicant being permitted to stay in this country. The best interests of his eldest daughter in particular suggest the applicant should be permitted to stay so he can fulfil his parental responsibilities. It is a finely balanced question at this point.
The other considerations point in both directions. The fact the applicant has been warned repeatedly of the consequences of his actions does not help him, although it was suggested the fact he had managed to stay out of trouble between 2006 and 2010 was because he had taken the warning seriously. I do not doubt the applicant genuinely regrets his behaviour and knows he was foolish to ignore the advice he received, but it may be he cannot help himself. On the other hand, the applicant’s family relationships will be severely disrupted if he is required to leave. His children will suffer, which would be unfortunate. The result may also be harsh for his mother.
After weighing all of these matters together, but giving special weight to the primary considerations, I am satisfied the applicant’s visa should not be cancelled. While I am worried about the applicant’s record and his seeming inability to take control of his life up until this point, I am particularly concerned for the welfare of his children, especially his oldest daughter. I reach that view with some hesitation given the applicant has already been warned several times that he would not receive any further chances. I worry that he might interpret this decision to mean that the warnings were of no moment, when in reality he has prevailed because his oldest daughter in particular needs him.
In those circumstances I would substitute a decision that the visa not be cancelled.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe
Signed: .................................................................................
Associate
Date of Hearing 18 January 2012
Date of Decision 1 February 2012
Applicant Self-represented
Solicitor for the Respondent Mr D McLaren, Sparke Helmore
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