Tupe and Minister for Immigration and Citizenship
[2011] AATA 100
•15 February 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 100
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/5248
GENERAL ADMINISTRATIVE DIVISION ) Re JOSHUA TUPE Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Ms J L Redfern, Senior Member Date15 February 2011
PlaceSydney
Decision The decision under review is affirmed.
………………sgd………………… Ms J L Redfern
Senior Member
CATCHWORDS
JURISDICTION – service of notification for cancellation of visa – visa cancellation – substantial criminal record – deemed receipt – postal box – time living in Australia
Administrative Appeals Tribunal Act (Cth) 1975
Migration Act (Cth) 1958
Migration Regulations (Cth) 1994
Direction [No. 41] - Visa Refusal and Cancellation under section 501
Acts Interpretation Act (Cth) 1901
Re Tran and Minister for Immigration and Citizenship [2011] AATA 21
Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198
Re Stone and Minister for Immigration & Ethnic Affairs (1981) 3 ALN 81
REASONS FOR DECISION
15 February 2011 Ms J L Redfern, Senior Member BACKGROUND
1. Mr Tupe is a New Zealand citizen who moved to Australia with his father on a Subclass 444 (Special Category (Temporary) Visa) when he was 12 years old. He has lived continuously in Australia since March 2002.
2. Mr Tupe has had a troubled youth with an extensive criminal history, commencing in 2002 when he was 13 years old. He spent considerable time in juvenile detention during his teenage years and on 7 November 2008, was convicted of robbery with an offensive weapon and intent to influence a witness. He was 18 years old at the time of the offence. Mr Tupe was sentenced to imprisonment for five years, with a non-parole period of three years. His term of imprisonment will end on 30 October 2012 but he may be released earlier on parole, although this has been refused to date. Mr Tupe has spent most of his youth and early adult life in correctional institutions and completed his high school education while in juvenile detention.
3. Mr Tupe is 22 years old.
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 18 October 2010, a delegate of the Minister decided to cancel Mr Tupe’s visa and he was sent a letter by the Department of Immigration and Citizenship (the Department) dated 20 October 2010, notifying him of the decision. For reasons that are unclear, Mr Tupe did not receive notification of the decision until 26 November 2010.
5. Mr Tupe lodged an application for review of the decision on 3 December 2010. The Minister argues the Tribunal has no jurisdiction to hear the application because it was lodged out of time. As there are time limits on hearing and determining these applications, the jurisdiction argument and substantive application were heard together.
ISSUES FOR DETERMINATION
6. There are strict limits on the period of time in which a person in a case such as this must lodge an application for review. This Tribunal cannot extend time if those time limits have been breached, regardless of the circumstances. There also are strict rules about notification of the cancellation and service of documents.
7. In the present case, the Minister contends the notification of the visa cancellation was sent to Mr Tupe by registered post on 20 October 2010 and, according to the relevant legislative provisions on service of documents, Mr Tupe was deemed to have received the notification by at least 29 October 2010. He was therefore required to lodge any application for review with this Tribunal within nine days of that date, which he did not do. The Minister submits the Tribunal does not have jurisdiction to hear this matter as it is out time. If service was not effective, it is common ground Mr Tupe actually received notification of the decision on 26 November 2010 and as the application for review was lodged within seven working days of this date, the Tribunal would have jurisdiction. Even if jurisdiction is established, the Minister has a discretion to cancel Mr Tupe’s visa and he contends the Tribunal should affirm the decision of the delegate on the basis that the “primary consideration of protection of the Australian community weighs heavily in favour of cancelling the Applicant’s visa”.
8. Mr Tupe objects to the Minister raising the jurisdictional issue and says he lodged his application with this Tribunal within the time allowed after receiving notification. It was not his fault there was delay and he should not lose the right to seek a review. Mr Tupe agrees his criminal history is serious but says he is ashamed of his past and wants to make a new start with the support of his family and friends in Australia and community services. He has spent nearly half his life in Australia and submits the discretion should be exercised in his favour.
9. The issues for determination are: whether the Tribunal has jurisdiction to hear the application and, if so, how should the discretion under the Act be exercised?
LEGISLATIVE AND POLICY FRAMEWORK
10. 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.
11. Section 501G(1) requires the Minister to give written notice of a decision to cancel a visa setting out the decision, reasons for the decision and the person’s right to have the decision reviewed by the Tribunal. Section 501G(2) requires that the notice must be accompanied by two copies of every relevant document in the delegate’s possession or under the delegate’s control and “must be given in the prescribed manner” (s 501G(3)). The “prescribed manner” is set out in the Migration Regulations (Cth) 1994 (the Regulations).
12. Regulation 2.55(4) provides that where a person has held a visa for at least one year when the document is to be given, the Department “must try to find the person” and “the Minister must give the document in one of the ways mentioned in subregulation (3)”. Subregulation (3) specifies the ways in which the Minister must give the document:
(3) …
(a) by handing it to the person personally,
(b) by handing it to another person who:
(i) is at the person’s last residential or business address known to the Minister; and
(ii) appears to live there (in the case of a residential address) or work there (in the case of a business address); and
(iii) appears to be at least 16 years of age;
(c) by dating it, and then dispatching it:
(i) within 3 working days (in place of dispatch) of the date of the document; and
(ii) by prepaid post or other prepaid means;
to the person’s last residential address, business address or post box address known to the Minister;
(d) by transmitting the document by:
(i) fax; or
(ii) e-mail; or
(ii) other electronic means;
to the last fax number, e-mail address or other electronic address known to the Minister.
13. In the case of a document given to a person pursuant to subregulation (3)(c), regulation 2.55(7) provides:
(7) If the Minister gives a document to a person by dispatching it by prepaid post or by other prepaid means, the person is taken to have received the document:
(a) if the document was dispatched from a place in Australia to an address in Australia -- 7 working days (in the place of that address) after the date of the document; or
(b) in any other case -- 21 days after the date of the document.
14. Subregulation 2.55(9) deals the situation where there is irregularity in service and provides:
(9) If:
(a) the Minister purports to give a document to a person by a method specified in this regulation but makes an error in doing so; and
(b) the person nonetheless receives the document or a copy of the document;
the Minister is taken to have given the document to the person and the person is taken to have received the document:
(c) at the time specified by this regulation for that method; or
(d) if the person can show that he or she received the document at a later time -- at that later time.
15. Section 500(1) of the Act provides for applications to be made to the Tribunal for the review of decisions, such as a decision to cancel a visa made under s 501(2). Relevantly, s 500(6B) provides:
If a decision under section 501 of this Act relates to a person in the migration zone, an application to the Tribunal for a review of the decision must be lodged with the Tribunal within 9 days after the day on which the person was notified of the decision in accordance with subsection 501G(1). Accordingly, paragraph 29(1)(d) and subsections 29(7), (8), (9) and (10) of the Administrative Appeals Tribunal Act 1975 do not apply to the application.
16. Subsections 29(7) to 29(10) of the Administrative Appeals Tribunal Act 1975 provide for the Tribunal to extend the time for lodging applications for review but section 500(6B) of the Act precludes these subsections from applying in the case of decisions under s 501. As such, the Tribunal has no power to grant an extension of time for the lodging of such an application.
17. If the Tribunal has jurisdiction to hear this application for review, the issue for determination is whether or not Mr Tupe’s visa should be cancelled.
18. It is not disputed that Mr Tupe does not satisfy the character test because of his criminal history and it is open for the Minister to cancel his visa. 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).
19. 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.
20. 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).
21. 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(1), they should be given less weight than the primary considerations.
JURISDICTION
22. The Minister submits there is evidence the notification letter was given to Mr Tupe on 20 October 2010 in accordance with regulation 2.55(3)(c) of the Regulations. The letter was sent by registered post on 20 October 2010 to Mr Tupe's last residential address known to the Minister, which was the Bathurst Correctional Centre. It was addressed to the post office box for the Bathurst Correctional Centre.
23. Under Regulation 2.55(7) (a), if the Minister “gives” a document to a person by prepaid post or other prepaid means, which was the case here, “the person is taken to have received the document” within seven working days. As the letter was said to have been dispatched on 20 October 2010, the notification was taken to be received by Mr Tupe on 29 October 2010. The time for Mr Tupe to lodge the application for review under s 500 (6B) was therefore 7 November 2010 but because this was a Sunday, he was able to lodge the application on the following day: s 36 (2) Acts Interpretation Act (Cth) 1901. Mr Tupe did not receive the notification until after this date and it is not clear why there was such delay. As the Tribunal has no power to extend time, service of the notification is crucial to the issue of whether the Tribunal has jurisdiction.
24. There are two critical questions that arise in respect this issue:
(a)Is there evidence the notification letter was dispatched on 20 October 2010?
(b)If so, is dispatching the notification letter to the post office box of the Bathurst Correctional Centre sufficient to comply with regulation 2.55(3)(a)?
25. There was evidence from the solicitor representing the Minister, Mr William Sharpe, that the letter of 20 October 2010 was sent by registered post number 56656450015. His evidence was that he had attended on the Canberra office of Australia Post and requested an electronic record relating to this item of registered mail. The printout was not otherwise identified as a document from Australia Post but is a table which records on the first row of the table that “Article ID: 56656450015” arrived at the “Bathurst DC” at “Actual Date/Time: 22.10.2010 05:05:52 AUSNSW”.
26. There was no evidence about how the printout was generated or its accuracy. Even if the printout is accepted based on the evidence of Mr Sharpe, it provides evidence the letter was received in the Bathurst Mail Centre of Australia Post on 22 October 2010 but not when it was dispatched or whether the Minister had otherwise complied with the provisions of regulation 2.55(3)(c) of the Regulations or s 501G of the Act.
27. While the Tribunal is not bound by the rules of evidence, because the issue of whether notification is critical to the case, I formed the view it was appropriate to insist that these facts be established with some precision. In this case, there was insufficient evidence for the Tribunal to find the notification had been given in accordance with regulation 2.55(3)(c) on 20 October 2010. The Minister sought leave to adduce evidence from Department witnesses about the dispatch of the notification and attempts made to ascertain the “last address known to the Minister” for Mr Tupe. It was argued leave should be given as Mr Tupe would not be prejudiced. He would have the opportunity to cross-examine the witnesses and give evidence about the circumstances around notification. The rule in s 500(6H) of the Act, which limits evidence that can be relied by an applicant to evidence served two working days before the hearing, only applied to the substantive application not the jurisdictional question. I accepted this submission. Mr Tupe did not object, provided he could cross examine and give evidence on these matters. Leave was therefore given and there was evidence on these matters from Mr Tupe and Mr Roman Miotla and Mr Paul Popek, officers based in Melbourne with the National Character Consideration Centre of the Department.
28. Mr Miotla told the Tribunal he was the case officer who prepared the submission for the delegate of the Minister. He spoke to Mr Tupe on 12 October 2010 to ask him if he had any further submissions to make on the cancellation of his visa. He also explained the appeal process and confirmed that Mr Tupe was still at the Bathurst Correctional Centre. Mr Miotla told the Tribunal that once a letter of notification was completed and signed it was dispatched from the Mail Centre, which was located on the second floor of the Melbourne office. The Mail Centre was known as Outsourced Services Australia (OSA), which he understood to be a contractor of Australia Post. OSA maintains a register of mail dispatched and he obtained a copy of the extract of the register for 20 October 2010 which records details of letters sent from the Department by registered post on that day. The extract showed that a letter identified as registered post number “AP 566556450015” was sent to Mr Tupe at “P. O. Box Bathurst 166 NSW 2795” on 20 October 2010. This registered post number is the same number endorsed on the Department’s copy of the notification letter.
29. Mr Miotla gave evidence that he was not involved in the dispatch of the later as he was on leave in the week commencing 18 October 2010 when the decision was made. However, he could recall speaking to Mr Tupe on the telephone after the decision was made and while he cannot recall the exact terms of the conversation, believes Mr Tupe may have called him about the decision and asked how he could appeal. Mr Miotla said he telephoned the Administrative Appeals Tribunal and then provided some information to Mr Tupe. He cannot now recall whether Mr Tupe told him he had not received notification but agrees this may have been the case.
30. Mr Popek told the Tribunal he took over the conduct of Mr Tupe's case when Mr Miotla was on leave. The decision to cancel Mr Tupe’s visa was made on 18 October 2010 and he was designated with the task of notifying Mr Tupe of the decision. It was his usual practice to look at the file to ascertain the last known address for the review applicant. If the person was in a correctional facility, he would telephone the Records Section to confirm the applicant was still at the facility. Mr Popek would confirm the postal address for the facility and address the letter to the applicant at a postal address for the facility. He would then immediately place the letter, with two copies of the relevant documents, in the out tray in his section for collection by OSA. The letter would be collected by OSA during the course of the day. Mr Popek said he could not specifically recall the dispatch of the notification letter to Mr Tupe but gave evidence this was his usual practice and he does not believe he would have done anything different in this case. He had no information at the time of dispatch that Mr Tupe was to be moved from the Bathurst Correctional Centre.
31. Mr Tupe told the Tribunal he was shown a document, which was headed “Direction 41”, by a welfare officer on 1 November 2010. He was not given any other documents and did not follow this up as he was moved from the Bathurst Correctional Centre and transferred to Parramatta the following day. He was told the reason he was being moved was because the Department wanted to interview him. This is supported by a letter from the Department dated 28 October 2010 addressed to the Deputy Governor of the Bathurst Correctional Centre which states:
…
RE: Joshua TUPE (b.24/4/1989) MIN 425940
Dear Deputy Governor,
The above inmate is an unlawful non-citizen in Australia. He is liable for mandatory detention and removal from Australia in accordance with sections 189 and 198 of the Migration Act 1958 (“the Act”) respectively upon completion of his sentence.
I would appreciate your arranging for the above inmate (currently at Bathurst CC) to be transferred to a Sydney based prison no later than Thursday 28 October 2010 to enable us to conduct initial interviews and arrange his removal from Australia.
It will be highly appreciated if the above inmate remains in Sydney which will assist us to complete the necessary interviews and paper work on time.
Thank you for you assistance to this matter.
…
32. Mr Tupe said he telephoned Mr Roman Miotla on 8 November 2010 to ask what was happening with his visa. Mr Miotla told him his visa had been cancelled and he should have received a notification letter. Mr Tupe said he had not received the notification letter but wanted to appeal. Mr Miotla told him he had nine days to appeal once he received the notification letter and the appeal needed to be sent to the Administrative Appeals Tribunal.
33. Mr Tupe was not interviewed by the Department and was returned to Bathurst Correctional Centre on 9 November 2010. He told the Tribunal he did not receive the notification letter until 26 November 2010 when he found it sitting on the mail bench in his wing. The envelope was half open and looked battered. He then spoke to his welfare officer and obtained the relevant form to lodge an application for review with the Tribunal. There is no dispute this was lodged on 3 December 2010.
34. I am satisfied from the evidence that the notification letter, together with two copies of the relevant documents, was dispatched to the post office box for the Bathurst Correctional Centre by at least 21 October 2010, which is within three days of the date of the notification letter. There is evidence that a copy of one of the documents that would have been attached to the notification letter, being Direction 41, was received on 1 November 2010 but there is no evidence about this document or how it was dispatched. Mr Tupe did not bring the document to the hearing but there was some suggestion at an earlier directions hearing that it was received by facsimile.
35. I accept that Mr Tupe did not actually receive the notification letter, with all the attachments, until 26 November 2010. It is possible the letter was either lost or misdirected within the Bathurst Correctional Centre or redirected to Parramatta when Mr Tupe was transferred there for seven days in early November 2010. While there is no evidence about this, it is also possible the transfer to Parramatta delayed receipt of the notification letter by Mr Tupe. As the notification letter was dispatched by registered post within three days of its date, the Minister says Mr Tupe is “taken” to have received the document within seven working days and, unless it is argued there was an administrative error, it does not matter when he actually received the document.
36. The question is whether the Minister has complied with regulation 2.55(3)(a) by sending the notification letter to the post office box for the Bathurst Correctional Centre.
37. This matter has been considered by the Tribunal in Re Tran and Minister for Immigration and Citizenship [2011] AATA 21. In that case, Deputy President Handley at para [41] found that sending the notification to the post office box for the Bathurst Correctional Centre did not comply with subregulation (3) as this was not Mr Tran’s “last residential address, business address or post box address known to the Minister”.
38. The Minister submits the decision in Tran was wrongly decided. The Minister had argued that subregulations (3)(c) and (7) were designed to put the risk of postal delays on the review applicant. Deputy President Handley, distinguished those risks from the risks of sending notification to a person in a prison by delivering it to the post office box for a Correctional Centre at para [46] as follows:
However, Mr Tran’s matter is not about postal delays. It is about a person in prison who is without any effective control over gaining access to his mail once delivered to the post office box of the correctional centre where he was being held. As noted above, in Mr Tran’s case the effect of the Minister’s submissions as to the application of regulation 2.55, if accepted, would be that Mr Tran would be deprived of a statutory right of review in circumstances over which he had no control. In my view, this is not the correct interpretation of the way in which regulation 2.55 applies.
39. The Minister submits that the question of control is irrelevant as other methods for service prescribed in regulation 2.55 also contain a risk that the review applicant will not have control of the document. It was contemplated that review applicants may be in detention at the time notice is served but no special rules for service have been prescribed. This is in contrast to regulation 5.02, which specifically provides for personal service of documents on persons in immigration detention. It is submitted that if control limits the method of service under regulation 2.55, the only form of service that could be effective when the review applicant is in a correctional facility would be personal service and this must not have been intended as this would be time consuming and inconvenient for the Minister.
40. I do not accept this contention. The Minister may refuse to grant or may cancel visas in respect of a wide range of persons, not all of whom will be in detention. Regulation 2.55 provides different mechanisms for the Minister to effect service of those decisions. The Minister must choose the method of service that is most appropriate and which satisfies the regulation in the circumstances of the case.
41. The issue of control was raised by Deputy President Handley to illustrate the problem but the real issue is that the Minister did not serve the notification in accordance with the requirements of subregulation (3)(c)(iii). In this case, as in Tran, the notification was not dispatched to Mr Tupe's last post box address known to the Minister, which is what the regulation requires. It was dispatched to him care of the post office box for the Bathurst Correctional Centre. I agree with Deputy President Handley at para [47]:
Because an important statutory right is at stake, the regulation should be strictly construed.
42. I find the notification by the Minister was not served in accordance with regulation 2.55(3)(c) but I accept there was notification as there was an “error” as described in subregulation (9). I am satisfied Mr Tupe received the notification document on 26 November 2010 and as such he is taken to have received those documents on that date: subregulation (9)(a).
43. I am therefore satisfied the application for review has been lodged within time and the Tribunal has jurisdiction to determine the substantive application.
HOW SHOULD THE DISCRETION BE EXERCISED
44. There are three primary considerations under Direction No 41 that are relevant to Mr Tupe and must be taken into account when exercising discretion under s 501(2) of the Act. They appear at para [10] and are:
(1) …
(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; and
(c) The length of time the person has been ordinarily resident in Australia prior to engaging in the criminal activity or other relevant conduct.
…
45. The other primary considerations identified are not relevant to Mr Tupe.
46. There are also a number of other considerations which are relevant to Mr Tupe 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 and hardship likely to be experienced by the person.
PROTECTION OF THE AUSTRALIAN COMMUNITY
47. 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.
48. Mr Tupe was convicted of armed robbery and with doing an act with intent to influence a witness. These were serious crimes and the nature and extent of the robbery offence is described by Judge Goldring of the District Court of New South Wales in his sentencing decision on 7 November 2008 as follows,
This offender and a co-offender … went into the store, where the victim, an 18-year-old man, was working alone. This offender and his co-offender went around the counter, the offender grabbed a victim by the back of his shirt and with his right hand produce what happened to be a 25 cm knife and held it to the victim’s throat, demanding cash. He said to the victim, “Open the till”. Both offenders then made the victim remove a number of coin bags from the till and put them in a backpack was being carried by the co-offender … The offender then placed the knife closer to the victim's face and said, “Where are the 50s”. The victim indicated they were in a safe and pointed at the cash tin that he said had the $50 notes in it. The co-offender grabbed the cash tin and put them in a backpack.....Before leaving the store [Mr Tupe] said to the victim. “If you call the cops, will come back and kill you”.
49. Mr Tupe does not agree he said the last sentence, but otherwise agrees with this account.
50. Mr Tupe wrote a letter to the Court expressing his remorse and regret and the Judge took this letter into account in his sentencing remarks:
He says that in his past he has made a lot of wrong choices and he is not proud of himself. He used to blame his drug and alcohol problem, but he now realises he cannot do that because he caused the problems himself and he acknowledges it was him that made the choice to rob the video store and he is sorry for it. He says that his attitude has changed ...
I have no problem in finding the change in attitude is something that in a person who is still a young man suggests that there are prospects for rehabilitation, but I need to say that in my view that is just the first step. Mr Tupe has convinced me to the standard that I have to be satisfied of that he has changed his life, but he is going to have to spend more time in custody because of the seriousness of this offence, and when he gets out of gaol he is going to need help and support from his family, but also professional support. He acknowledges that he has had a problem with drugs and alcohol, and that is the first step of dealing with that problem ...
51. Mr Tupe was sentenced to five years imprisonment, with a non-parole period of three years. His sentence commenced on 31 October 2007, being the time he first went into custody, and his non-parole period expired on 31 October 2010.
52. Prior to this conviction, Mr Tupe had a history of convictions from the age of 13. His evidence was that he was in juvenile detention for six months of every year from 2002 until 2006 and was sentenced to juvenile detention in 2007 for nine months for robbery. As a juvenile, his previous offences include robbery with an offensive weapon and assault occasioning bodily harm in 2002, breaking and entering and breaching bail in 2003, breaching bail, larceny, assault and resisting arrest in 2005 and assault with intent to rob, demand property with menaces and breach of bail in 2006. Many of these crimes involve violence or threats of violence. He was convicted or sentenced in relation to no less than 45 offences, some relating to the same incident and some less serious than others but nonetheless it shows that Mr Tupe has a serious criminal history over a period of six years. The offences were committed with frequency and often soon after he was released from juvenile detention. He has breached bail on several occasions.
53. Mr Tupe agrees his criminal record is poor and is ashamed of his previous actions. He was young, mixed with a bad crowd and had little guidance. He says he was abused by his mother’s former partner when he lived in New Zealand. He found his time in juvenile detention to be structured and supportive and completed years seven, eight and nine of his secondary schooling there. He was supported with sporting activities. However, when he left juvenile detention and did not have the support, Mr Tupe told the Tribunal he would end up in trouble. He lived with his older brother from the age of 14 and began seriously drinking from the age of 15. He acknowledges he has drug and alcohol problems. His brother spent time in prison in Australia and was recently sent back to New Zealand, where he is now in prison. Mr Tupe said he was concerned this would happen to him if he returned to New Zealand.
54. When he is released from prison, Mr Tupe wants to stay in Australia so he can have the support of his father and sister and the parole system to ensure he does not reoffend, like his brother. Mr Tupe has a history of reoffending but told the Tribunal he has grown up and has learned from his most recent experiences in adult prison. He has undertaken TAFE courses while at the Bathurst Correctional Centre and completed several “Access to work and training” certificates during 2009.
55. According to an Immigration Report from the Probate And Parole Office dated 6 September 2010:
Since being in custody Mr Tupe has completed educational courses and is currently employed at the Bathurst Correctional Centre Industries complex. Positive comments had been made with regards to Mr Tupe both by educational and industrial officer though his general behaviour has not elicited similar comments from custodial officers.
Mr Tupe has recently been the subject of a Departmental Pre-release Report, which recommended against release to parole pending his participation in programs addressing his offending behaviour.
Mr Tupe has self referred for programs and is currently on the waiting list for relevant offence targeted programs.
Should Mr Tupe be released into the community, he appears to have continued support from his father, sister and her family.
56. Mr Tupe was eligible for parole on 31 October 2010 but was refused by the State Parole Authority in its Decision to Refuse Parole dated 17 September 2010 for the following reasons:
Needs to address offending behaviour (General) [needs to participate in programs to address violence e.g. Anger Management etc and needs to participate in the program (s) to address alcohol and other drugs problems e.g. GETTING SMART, Think First, SMART Recovery etc] and poor prison performance [numerous offences in custody and regression in classification].
57. Mr Tupe told the Tribunal that since this report he had substantially completed the courses recommended and believed he would satisfy the conditions for parole. He was not able to attend the final sessions for these courses as they conflicted with the date of the hearing before the Tribunal but said he had been told this would not affect his status for completion purposes.
58. The Minister contends Mr Tupe is a “high-risk offender”, as this was how he was assessed in the Pre-release Report from the Probation and Parole Service dated 31 August 2010, which did not recommend release at that stage. The Report states:
… given that the offence, of a violent nature, was carried out whilst Mr Tupe was under the influence of alcohol and cannabis, the main areas of concern appear to be his failure to complete alcohol/drug related programs and programs addressing his violence whilst in custody.
59. The Minister also relies on the Immigration Reports of 1 September 2009 and 3 September 2010, which refer to a total of 15 “institutional misconducts” during the course of Mr Tupe's imprisonment. An “institutional misconduct” is misconduct by a prisoner which may be found to be established after a formal process of investigation is undertaken. A key concern is that Mr Tupe failed to submit to drug testing on seven occasions and the only time he complied with testing was on 9 July 2009 when he returned a suspect sample.
60. Mr Tupe contends the institutional misconducts were minor infringements and seven related to his failure to supply urine samples for drug testing. He told the Tribunal he was not able to comply because he finds it difficult to provide samples in the presence of a prison officer.
61. Examination of the unrelated drug testing misconduct charges reveals that all, except for two, were infringements for smoking or failing to follow directions or facility routines. The punishments were generally between 2 to 14 days, being confined to his cell or limited on privileges. One infringement involved a fight with another inmate and the other related to possession of a screw driver, which is not allowed. While Mr Tupe's behaviour in prison could not be described as “unblemished”, the Immigration Reports suggest he has not been involved in any major incidents and has responded well to educational opportunities provided. On the other hand, there is no evidence Mr Tupe has overcome drug and alcohol problems and his repeated failure to attend drug testing suggests otherwise. He was not able to explain the suspect test, which was found to contain pure nicotine rather than urine. His failure to follow directions and comply with facility policy also suggests he has difficulty in accepting authority.
62. Mr Tupe told the Tribunal he will not reoffend if he stays in Australia because of the support he has here. He has contact with his sister and has re-established his relationship with his father over the last 18 months. His father, sister and her children visited him at Bathurst on three occasions between March and August 2010 and his father advised the Probation and Parole Service he would assist Mr Tupe in securing employment if he is released to parole. Mr Tupe gave evidence that if he returns to New Zealand, where there is less support and family conflict is an issue, there is a chance he will reoffend and return to prison.
63. Mr Tupe was young when he commenced his history of criminal activity and was influenced by peers, alcohol and drugs, possibly his elder brother and a lack of parental guidance. On his own admission, he was “wild”. His crimes were serious, repeated and violent, culminating in the robbery at knifepoint in November 2007.
64. I accept Mr Tupe’s evidence he is ashamed of his past and he is genuine in his desire to be rehabilitated. I also accept that his unsettled and difficult early years may have contributed to his offending. He has support from some of his immediate family and, if released, will be closely supervised by parole officers. Nevertheless there is a real risk Mr Tupe will reoffend. This is his history to date and his apparent failure to deal with his drug and alcohol problems raise doubts about whether he will be able to keep out of trouble when he leaves prison. A “real” risk of recidivism is one which is not far-fetched or fanciful and can include a low or minimal risk: Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198.
65. Given these matters, the consideration of the protection of the Australian community weighs heavily in favour of cancelling Mr Tupe’s visa.
AGE AND LENGTH OF TIME LIVING IN AUSTRALIA
66. Mr Tupe first arrived in Australia in 1998 and stayed for short periods of time until January 2001, when he remained in Australia for 9 months. He was 11 years old at that time. On 16 March 2002 he arrived back in Australia and was granted the visa which is the subject of this review. He was 12 years old and went to school in Australia but left early, completing his schooling up to year 9 while in juvenile detention. Mr Tupe has lived in Australia for about 10 years and has spent much of his formative years here. He has not been back to New Zealand since moving here and said he has a close connection with Australia – his first job, first girlfriend and secondary schooling were all in Australia.
67. The Minister acknowledges some weight should be given to this consideration but contends less weight should be afforded than might otherwise be given because most of this time was spent in juvenile detention. Direction No 41 focuses on “increased likelihood of establishment of ties and linkages to the Australian community” as an important factor to consider. In this case, Mr Tupe has spent about half of this time in juvenile detention which has hampered his ability to form ties in the Australian community.
68. The Minister contends there are similar concerns when considering the length of time Mr Tupe has lived in Australia. Even though he has lived here for 10 years, Mr Tupe first became engaged in criminal activity in August 2002, which was about 18 months after his first lengthy stay but only five months after his permanent residence under his visa. 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 … character”.
69. I accept that weight should be given to the fact Mr Tupe came to Australia when he was 11 years old, lived here for his teenage years and has established real connections with the Australian community. The length of residence is negated by the short period he lived here before he commenced his criminal activity but the fact he was a minor for most of those years is an important consideration. On balance, these considerations weigh against cancelling Mr Tupe’s visa.
OTHER CONSIDERATIONS
70. There is evidence Mr Tupe has ties with his sister, her family and his father, who all reside in New South Wales. The rest of Mr Tupe’s immediate family live in New Zealand but Mr Tupe gave evidence that apart from his older brother, who was deported, he has had no contact with his mother or other brothers and sisters for 10 years. He feels no connection to them and many of his extended family live in Australia. If Mr Tupe is allowed to stay in Australia when he leaves prison, he will live with his sister, her family and his father. If he is deported, Mr Tupe said he will be homeless because his mother will not be able to take him in - she has other children to look after. His main concern is that he will have no support in New Zealand to assist his continued rehabilitation once he leaves prison. There is family conflict in New Zealand and he will not have the support of parole officers, which he believes will be important to help him get a job and keep on track. He does not want to reoffend and believes he could have a “bright future” in Australia.
71. There is no doubt Mr Tupe has closer family connections in Australia than in New Zealand. He is still young and the evidence suggests he will need the support and structure provided by family and supervised parole in the event he is released from prison early. Early release is not guaranteed but is possible. There are cultural, linguistic and societal similarities between Australia and New Zealand and Mr Tupe should be able to re-establish himself in New Zealand but I accept it may be difficult for him to adjust and to resist peer pressure and the drug and alcohol problems that have plagued his youth. These are relevant considerations that weigh against the cancellation of Mr Tupe’s visa but they must be balanced against the primary considerations.
CONCLUSIONS
72. This is a difficult matter because Mr Tupe is still young, he has spent most of his youth in Australia and he has expressed remorse for his past criminal behaviour and a genuine desire, which I accept, to be rehabilitated. Returning to New Zealand may present some hardship, not only because he does not have the same family links and support there but he will not have the benefit of the New South Wales parole system, which would have provided some monitoring and support. Against this, Mr Tupe’s crimes are serious and many have involved violence or the threat of violence. He has not caused serious injury but has threatened to do so, and on the last occasion committed a crime with a dangerous weapon held at the throat of a victim. There is a real risk he will reoffend and if this does occur, there is a risk he will cause great harm. In this regard, I agree with the comments of Davies J in Re Stone and Minister for Immigration & Ethnic Affairs (1981) 3 ALN 81 at p 133:
The likelihood of recidivism is a strong factor in favour of deportation when the Tribunal is not satisfied that the criminal is unlikely to offend again ... and even if the risk of recidivism is not high, the risk will strongly support deportation when recidivism, if it does occur, may cause great harm.
73. Mr Tupe still has family in New Zealand and spent his first 11 years in that country. New Zealand is likely to have many support services to assist him in obtaining employment and he will still be able to keep in contact with his sister and father over the telephone. Re-establishing himself when he is released from prison may be more difficult in New Zealand than if he was in Australia but not insuperable.
74. Having taken into account the primary and other considerations, it is my view that the discretion should not be exercised in Mr Tupe’s favour and I affirm the decision of the Minister.
I certify that the 74 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J L Redfern, Senior Member.
Signed: .........SGD.......................................................................
AssociateDate/s of Hearing 31 January 2011 and 1 February 2011
Date of Decision 15 February 2011
Counsel for the Applicant -
Solicitor for the Applicant Self-Represented (Joshua Tupe)
Counsel for the Respondent -
Solicitor for the Respondent Will Sharpe, Clayton Utz
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