Vainga Veatufunga and Minister for Immigration and Border Protection
[2013] AATA 838
[2013] AATA 838
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/4560
Re
Vainga Veatufunga
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Ms N Bell, Senior Member
Date 25 November 2013 Place Sydney The Tribunal affirms the decision under review.
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Ms N Bell, Senior Member
CATCHWORDS
IMMIGRATION – Visa cancellation – character grounds – substantial criminal record – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 501(2), (6), (7)
SECONDARY MATERIALS
Ministerial Direction No. 55 on Visa Refusal and Cancellation under section 501
REASONS FOR DECISION
Ms N Bell, Senior Member
Vainga Veatufunga, now a man of 26 years, arrived in Australia in October 1991 when he was four years old. He has remained here, as a citizen of New Zealand on a Special Category Temporary visa, ever since.
On 27 August 2013 the Minister decided to cancel his visa on the grounds that he did not satisfy the character test set out in section 501 of the Migration Act 1958.
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”. Section 501(6) of the Act provides that a person does not pass the character test if the person has a “substantial criminal record”. “Substantial criminal record” is defined in section 501(7) of the Act as, among other things, having been sentenced to a term of imprisonment of 12 months or more. There is no dispute that on 21 April 2011, Mr Veatufunga was convicted of robbery while armed with a dangerous weapon and conspiracy to commit offence unspecified and was sentenced to a term of six years imprisonment. It follows that he does not pass the character test.
The discretion of the Minister to cancel Mr Veatufunga’s visa is thus enlivened. In exercising the discretion, the decision maker must apply Ministerial Direction No. 55 on Visa Refusal and Cancellation under section 501 of the Act. This Direction superseded Direction No. 44 and came into effect on 28 July 2012 and varies from the previous direction in that it adds, to a range of primary and “other” considerations in the exercise of the discretion, a set of principles expressed to “provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to cancel or refuse a person's visa under section 501”. The principles are:
6.3 Principles
Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(6)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.
The Direction then contains a number of “primary” and “other” considerations to which the decision maker must have regard when considering whether to exercise the discretion to refuse or cancel a visa.
The primary considerations in the Direction in respect of visa holders are:
Primary considerations – visa holders
(1) In deciding whether to cancel a person's visa, the following are primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The strength, duration and nature of the person's ties to Australia;
(c)The best interests of minor children in Australia;
(d)Whether Australia has international non-refoulement obligations to the person.
These considerations are elaborated on by a range of factors to which regard must be had. The additional “other” considerations contained in the Direction are indicated by the headings that appear below.
PRIMARY CONSIDERATIONS
The primary consideration most relevant to Mr Veatufunga’s circumstances, given his convictions for violent crimes, is the protection of the Australian community. The other primary consideration most relevant to his circumstances is the strength, duration and nature of his ties to Australia.
Protection of the Australian community
The Direction provides further guidance to decision makers in assessing the level of the risk of harm to the community by identifying as factors relevant to that assessment the nature and seriousness of the person’s conduct to date and the risk to the Australian community should the person commit further offences or engage in other serious conduct.
Mr Veatufunga’s first criminal charge was in 2003 when he was 15 years old. He was charged with and later convicted of aggravated robbery. He continued to be charged with robbery related offences and less serious offences such as ‘be carried in a conveyance’ or ‘give false information’ and was dealt with by the Youth or Children’s Courts until 2005 when, no longer a minor, he assaulted and stole from a stranger. He was convicted and sentenced to imprisonment for four years and six months and released on parole in 2008. In 2009, approximately five months after his release, and while still on parole, he was charged with robbery while armed with a dangerous weapon and conspiracy to commit offence unspecified for which he was convicted and sentenced to imprisonment for six years. He remains in prison and will first come up for parole in December 2013. The full details of Mr Veatufunga’s criminal history are attached at Appendix 1.
The Court’s sentencing remarks in relation to each of Mr Veatufunga’s serious convictions are instructive. In July 2006 English J noted the circumstances of the assault and robbery. Mr Veatufunga was walking in the city in the early hours of the morning when he came across a man with his mobile phone in his hand, tried to take the phone from the man, and then punched him in the face, causing him to immediately lose consciousness. His Honour described how Mr Veatufunga had then stepped over the body of the unconscious man and placed the dropped phone in his pocket. Mr Veatufunga and his companions walked away, Mr Veatufunga placing the phone in his underpants. He told arresting police officers he had not taken the phone and was just hiding it for someone. The incident was captured on a street safety camera. Mr Veatufunga was on 12 months probation for robbery and armed robbery offences, orders imposed just three months earlier. Judge English remarked as follows:
This offence cannot be described as a mistake, it is an objectively serious criminal offence attracting a maximum penalty of twenty years imprisonment committed against a background of very similar offences.
…
He is said to express regret for his actions and an understanding of the seriousness of the offence he has committed. Whilst he has been on remand he has been unable to access drug and alcohol counselling, it is recommended that he does so and it is also recommended that he attends the violent offenders program whilst he is in custody. He says his incarceration has been a wake up call. He has made a decision that upon his release from custody he will resume undertaking a trade in bricklaying, he will no longer associate with the friends he formally associated with and will remain close to his home and become more involved in his church activities. The community can only hope he is genuine in that regard. Certainly his past does not enable the Court to have any confidence in his resolve. He has been given ample opportunity in the past to demonstrate a willingness to undertake rehabilitation, to undertaking training to assist him in gaining employment and to deal with his drug and alcohol problems. Whilst he may well have been able to refrain from consuming cannabis following cessation of the program as I have said, it is clear alcohol remains a significant problem for him and so too do antisocial peers. It is clear from the video however that it was not his peers who instigated this robbery but the offender himself, and it was this offender who struck the victim to the face rendering him unconscious and callously stepping over his body as it lay on the footpath and walked away, taking with him the victim’s mobile phone. It is clear from the video and my observations of the offender in Court that he is powerfully built young man, his victim was much smaller in stature. One can only imagine the fear he must have experienced when he was confronted by these youths and was about to be struck by this offender with a closed fist to the face.
Of Mr Veatufunga’s psychological assessment and criminogenic needs, His Honour said:
The offender has been assessed by Peter Ashkar a clinical psychologist. Mr Ashkar was requested to interview the offender with a view to determining whether there were any underlying psychological or psychiatric factors which might explain the recidivous nature of the offences committed. A perusal of the facts of his earlier robbery offences all demonstrate a degree of violence and the theft of insignificant items. There is no relevant medical history which might explain his behaviour. His adolescent conduct is said to satisfy the criteria for a mild conduct disorder, adolescent onset. The various tests performed placed the offender in the average range for intellectual ability. He demonstrated some memory difficulties upon neuropsychological functioning, and on assessment of his working memory, his overall performance is said to have fallen within the extremely low range. He is assessed as having a propensity towards aggressive behaviour, exacerbated by alcohol abuse and the influence of negative peers. His aggressive behaviour is said to be due to social immaturity, distorted notions of masculinity and low self esteem. There is said to be no neurological base for these behaviours. Enhancement of his self esteem, management of his alcohol abuse and disassociation from antisocial peers is essential in minimising his risk of engaging in similar offending behaviour in the future. He is said to possess the psychological resources to benefit from intervention. Specific treatment is recommended targeting his violent offending behaviour and attendance at the violence prevention program is recommended. So too is counselling to address his self esteem, notions of masculinity, alcohol abuse and negative peer influence. Supervision upon his ultimate release is strongly recommended.
After release on parole in 2008, Mr Veatufunga was in the community for only five months before he offended again in 2009.
In sentencing remarks in relation to Mr Veatufunga’s 2009 offences, Wells J described Mr Veatufunga as one of the organisers of the offence, an armed robbery of a jewellery store that yielded goods valued at $172,000 and involved the use of a firearm and a sledgehammer. The offence took place at 11.58 am in a crowded shopping centre during school holidays. Mr Veatufunga was found to have not been present in the jewellery store. Her Honour found that the offence involved considerable planning and that Mr Veatufunga was one of the three out of five offenders involved in that planning. Following the commission of this offence, monitored telephone calls between Mr Veatufunga and one of the five jewellery store robbery co-offenders about obtaining a clean firearm for “the job” founded a charge of conspiracy to commit offence unspecified. The Police Fact Sheet notes that in one call Mr Veatufunga mentioned “big money”. Her Honour also described Mr Veatufunga having travelled to a place to obtain the firearm, a shortened shotgun. She noted that “This is not an isolated offence, the offenders were part of a gang of their own making, a fluid gang, who it seems were keen to make a career, albeit short, of armed robbery.” Her Honour also noted that Mr Veatufunga had expressed an interest that he be part of the violent offender program.
Of the 2005 offence, Mr Veatufunga told the Tribunal he went out one night with some friends to the city, having just finished a youth drug court program, and celebrated by drinking and smoking marijuana. He said he “bumped into some guy and I just hit him and took his mobile phone and continued walking”. He did not remember why he did it. He said he had been drinking the whole day but did not remember how much he consumed.
As to the 2009 offences, he said he knew the people who were committing the armed robbery or were going to commit it, and that they needed assistance from someone keeping a look out, so he agreed to help them in that role because he felt he could not get in trouble for it since he would not be the one committing the robbery. He said he knew the place that was to be robbed but he did not know how the robbery was to be done. He insisted that his role was simply to keep a lookout. He denied that he was an organiser and said he disagreed with the Court and is still upset that he was convicted. He described the conspiracy charge as one he was advised to plead guilty to. He said he was not planning a robbery. He said he did not say the words on the phone that he was accused of having said and that he did not talk about getting a firearm.
In cross examination Mr Veatufunga agreed that he was organising the robbery of a hotel. He maintained he got no share of the proceeds of the jewellery store robbery, although he was offered, but refused, $500. He said it seemed like the right thing to do to help his cousin. Later under cross examination, he agreed that he had been a leader in the 2009 offences and that he had been planning the robbery of a hotel.
Mr Veatufunga spoke a lot about the influence on him of his friends and cousins and his having fallen into trouble again on his release from prison in 2009 because he came into contact with people who influenced him badly. This was at odds with his eventual admission that he was a leader in the criminal enterprises. He also spoke a lot about the influence on him of drugs and alcohol and his professed insight into the necessity of abstaining totally.
Mr Veatufunga significantly played down his role in his offences in most of his evidence to the Tribunal. When pressed to acknowledge his role as an instigator, he resisted and at one stage became angry. He maintained he is still angry at having been convicted, but often professed to take responsibility for his actions. Eventually he agreed that he played an organising role in relation to the 2009 offences.
This is in accordance with the Police Fact Sheet concerning the 2009 conspiracy offence. That document details the conversations that were accessed by the Police and supports the view that Mr Veatufunga played a very active role in the planning of the proposed robbery.
The ‘Immigration Report’ made by the Department of Corrective Services in April 2013 noted that Mr Veatufunga had commenced the Violent Offenders Therapeutic Program and was making satisfactory progress. The report also noted that Mr Veatufunga “spoke positively about what he has learnt from his participation so far and presented as being eager to complete the program.” Mr Veatufunga said as much in his evidence to the Tribunal and spoke of the progress he had made with his psychologist whom he sees four times per week as part of the Program. The report also noted that he had completed the Getting SMART Program in 2009 and had placed his name on the waiting list for the SMART Recovery program. Both programs concern drug and alcohol abuse.
The Immigration Report also noted that Mr Veatufunga is considered by prison staff to be compliant. However, it was noted that he has the following ‘active alerts’: association with a number of other offenders; immigration; and a warning that he may be placed on the Security Threat Group Intervention Program.
The Probation and Parole Pre-release report of September 2008, prepared in the last stages of Mr Veatufunga’s non-parole period for his first custodial sentence, noted that he said his actions had been due to his level of intoxication at the time. He is also reported as saying he took full responsibility for his actions and recognised the nexus between his alcohol use and his offending behaviour. He was noted as having incurred two misconduct reports in 2006 and seven in 2007 and that he had completed the Alcohol Prevention Program and the SMART Program. When asked about these programs, Mr Veatufunga said he could not recall them and said he had only participated because his friends did.
The report was cautiously optimistic about Mr Veatufunga’s rehabilitation and recommended release with additional conditions of supervision.
Mr Veatufunga re-offended five months after his release.
The Pre-release report of September 2013 recommended against release. The description of Mr Veatufunga’s attitude to his offence is telling:
Mr Veatufunga’s version of the events surrounding the offences was consistent with that contained in court documents. Although he acknowledged that he had played a part in some of the planning of the robbery, he minimised his role, claiming that he had only become aware of the offence the day before and he had no knowledge prior to that. He appeared to struggle to accept the seriousness of the offences and repeatedly described the canvassing of the shopping centre as being a “walk with the boys”, he also presented as having some pride at how “brazen” the commission of the robbery itself actually was. Mr Veatufunga was open in acknowledging that he had assisted in being a “lookout” on the day of the robbery and “stupidly” thought that by not participating in the actual robbery itself, that he had “distanced” himself from the offence enough that he would not be able to be charged. Initially, he verbalised an understanding of the fact that although he had not entered the store for the robbery, that he was just as culpable for the events given the active role he played, however toward the end of the interview, he was unable to main this façade and challenged his conviction (and need for completion of VOTP) as he did not feel he had been directly involved in the offences.
The report did note that Mr Veatufunga had some awareness of the impact of the offence on the victims.
The report detailed Mr Veatufunga’s behaviour in custody and noted many instances of failed urine tests, possession of prohibited goods and substances and disobedience. Of most concern to the reporting officer were the repeated positive and diluted urinalysis tests notwithstanding completion of the SMART Program on a previous sentence and his placement into segregation on seven occasions for periods ranging from one to 86 days for offences including possession of a mobile phone, fighting, aggressive behaviour towards staff and the use of chemical agents. His most recent placement in segregation had been in the previous month. The report also noted that he had been warned about possible placement on the Security Threat Group Intervention Program. The report said:
The offender’s history of poor behaviours was discussed with him and he indicated that he was aware that he has a tendency to react in a hostile and violent manner in many situations he is confronted with, either that or resort to drug use. He stated that toward the end of 2012 he came to the realisation that if he did not moderate his behaviours he would not be released from custody and as such has since made a concerted effort to behave more appropriately
The report described Mr Veatufunga’s continued use of illicit substances and his disclosure that through much of his sentence he had been smoking unprescribed Buprenorphine, but had ceased in November 2012, with a lapse in June 2013 when his grandmother died.
The report also described Mr Veatufunga’s participation in offence targeted programs. His participation in the Violent Offenders Therapeutic Program from February 2013 was the subject of comment from his treating psychologist who said in a progress note in August 2013:
Mr Veatufunga has been in the treatment phase of the VOTP since 29/04/2013 and has been present for 34 group sessions. Overall, Mr Veatufunga has at times been inconsistent in terms of his attitude and participation whilst in the VOTP. He was recently spoken to about this and he explained that during times where he is experiencing stress due to issues with his family, he finds it hard to concentrate. At other times when he is learning new information, he reported that he may not contribute to discussion because he is trying to understand the information being conveyed. It was explained to Mr Veatufunga that the main concern surrounding his behaviour is that at times he appears dismissive and uninterested in the course. Since this conversation Mr Veatufunga appears to have improved the level and quality of participation, particularly over the last week.
The Pre-release report also noted that Mr Veatufunga had enrolled in a number of education courses but had been removed from them after failing to attend the lessons. It was also reported that, apart from a period while at Parklea prison and two very short periods of work at Lithgow, Mr Veatufunga has spent the majority of his time in prison unemployed. The report also noted that he was placed on the behaviour intervention program while at John Moroney in mid-2011 due to poor behaviours but was unable to progress through the stages of that program because he was placed into segregation for possessing a contraband mobile phone. He was also referred to the ‘Best Best’ program but was removed after failing to attend lessons and did not progress through the ‘Managing Emotions’ program because he was again placed in segregation. I note Mr Veatufunga’s evidence that he has been attending meetings of Alcoholics Anonymous and Narcotics Anonymous for the last two months.
After noting that Mr Veatufunga would require a level of intervention in the medium to high range, the report said:
His propensity for violence in both the community and custodial environment is a concern and although it is noted that there has been an improvement in this regard over the last nine months, by his own acknowledgement this is as a direct result of attempting to ensure he is released to parole.
Parole was not recommended.
Mr Veatufunga said that on release he would obtain work in concreting through his brother-in-law. Alternatively, he said, he would care for his father who suffers from an unspecified illness and lives in Mildura, some distance from the rest of the family. Mr Veatufunga said he would claim social security benefits in order to do this.
Mr Veatufunga said he has been discussing with his psychologist the various supports and rehabilitation avenues that would be available to him on release. When pressed for specifics, he said he is waiting until he has finished his migration and parole processes before he sets anything “in concrete”.
Mr Veatufunga said that since beginning the Violent Offenders Therapeutic Program in February this year he has gained insight into his past behaviour. He spoke of aspiring to a “pro-social” life and of having made a conscious decision to change and discard his “criminal pride”.
The Tribunal heard evidence from some members of Mr Veatufunga’s family and received statements and letters from many others. Mr Veatufunga has 10 brothers and sisters and numerous cousins and aunties. A list of all statements and letters relied on by Mr Veatufunga is at Appendix 2. They all indicated their support for Mr Veatufunga.
Mr Veatufunga’s older sister Hinemoa Funaki told the Tribunal she had resolved to support Mr Veatufunga on his release, financially and emotionally. She said her husband, who organises labour for concreting jobs, can help him get work. She said that on his last release from prison, Mr Veatufunga was very independent and wanted to find his own work. She said she was living in their parents’ house with them at that time but knew nothing of his activities until the Police arrested him. She said he never seemed drug affected to her and she was completely surprised he was in trouble. She said he told her later that he was not involved in the offence for which he was convicted and she has not spoken to him about it recently. She said she last visited Mr Veatufunga in prison one month ago and cannot remember previous occasions because she was very busy working.
Mr Veatufunga’s older brother, Hakaumotu Veatufunga told the Tribunal he would also be prepared to give his brother financial and emotional support if he was released into the Australian community. However, he said he had not seen his brother since January 2012 because he was busy with work and with his child and did not take his child to visit Mr Veatufunga because “it was very hard”. Nonetheless, he maintained that his brother had matured in the last year and wants to be a part of his family. He said he was also living at his parents’ home when Mr Veatufunga was first released from prison in 2008. He said he has talked to Mr Veatufunga about his conviction and he told him he did not really do anything wrong. Mr Hakaumotu Veatufunga said his brother told him, in relation to his 2005 offence, that he had just got mixed up with the wrong crowd. More recently, Mr Veatufunga told him that he had hurt someone on that occasion.
Mr Hakaumotu Veatufunga said that when Mr Veatufunga was released on parole in 2008 it was a bad period for his family because there were lots of changes with the brothers and sisters finding partners and pursuing their own lives. He said they did not notice what was happening with Mr Veatufunga. He said they also had Mr Veatufunga’s younger brother, Daniel, being released from prison at around the same time. He said he was completely surprised when Mr Veatufunga was arrested in 2009. He said he became very angry with his brother and “laid into him”. He said Mr Veatufunga told him he wasn’t part of anything that had happened and had no knowledge of it. His evidence was tearful and heartfelt.
Lesieli Veatufunga is Mr Veatufunga’s mother. She told the Tribunal that all of her children are working together to support Mr Veatufunga. She said that when Mr Veatufunga was released on parole in 2008 he came to live with her and her husband and some siblings. Now she is separated from her husband and he lives in Mildura. Mrs Veatufunga said she thought her son had been influenced by his friends to do wrong. She said that when he is at home he behaves very well. She thought his earlier conviction was a result of his being drunk. She described an occasion soon after Mr Veatufunga’s release in 2008 when she saw him with an expensive necklace. She said she knew he did not have the money to buy such a thing, but insisted she never suspected it could be stolen. She said her difficulty with her sons has been that they are well behaved at home and she has no basis on which to suspect other behaviour. She said that if Mr Veatufunga is released into the community she will co-operate with the Probation and Parole Office.
Mrs Veatufunga agreed that she has convictions for driving offences and was detained in prison for two weeks awaiting trial for one of them and breached a good behaviour bond in relation to another. She said she is not aware of any offences committed by Mr Veatufunga prior to 2005.
Mr Veatufunga’s younger brother, Daniel Veatufunga, also gave evidence. He said he was convicted of armed robbery on a newsagency committed in 2006 with three co-offenders. The weapons used were knives. He said he had just been released on parole when his brother was arrested for the jewellery store robbery. He was in the car with him when the arrest took place. He maintained he had not heard any of the planning about robbery because at that time he was avoiding any discussions of crime. Daniel Veatufunga told the Tribunal that when he had been released he had the benefit of “hard love” from his family with them checking up on him and asking him questions. He said the main people who did this were his mother and his oldest sister. He expected that his brother would receive the same “hard love”. Mr Daniel Veatufunga is now married with children and is in settled and in continuous employment.
Mr Veatufunga maintained that for the past year he has been drug free, with the exception of one occasion this year following the death of his grandmother. He maintained he has changed and matured. He blames drugs for his poor behaviour in prison. He stated repeatedly that he is a different person now and that he realises how much of his life has been lost to alcohol, drugs and “criminal pride”.
Mr Veatufunga’s crimes have become increasingly serious and violent over the years. It is significant that, while he maintains that the weapons used in the jewellery store robbery were replicas (though the Court made no finding of this), the police facts concerning the conspiracy charge had Mr Veatufunga obtaining a shortened shotgun. This points to an acceleration of violence and seriousness in Mr Veatufunga’s offending. The increase in the length of the custodial sentences imposed on Mr Veatufunga in 2006 and 2011 respectively also points to an increasing seriousness of offending. The nature of the harm to the Australian community should Mr Veatufunga reoffend, given this trend of increasing seriousness and violence, is grave.
The likelihood of Mr Veatufunga reoffending is high, given the assessment of the Probation and Parole Office and its recommendation against release on parole, the limited progress of rehabilitation, Mr Veatufunga’s attitude to his offending, his poor record of behaviour in custody and his family’s past inability to influence his behaviour or even to be well informed about it. I note Mr Veatufunga’s ultimate acceptance of responsibility, in the Tribunal hearing, for his criminal acts and his optimism about the effect on him of the Violent Offenders Therapeutic Program, but as the material shows, he has made promises of reform before and at this point has had only a very short period of compliance.
I conclude that the protection of the Australian community requires that these matters weigh very heavily in favour of cancellation of Mr Veatufunga’s visa.
Strength, duration and nature of the ties to Australia
Mr Veatufunga has lived in Australia since he was four years old. He considers himself an Australian.
He left school at the age of 14, to work and study at TAFE as an apprentice bricklayer. At 15 he commenced to offend. Mr Veatufunga said he had started to drink alcohol and smoke marijuana, lost motivation and began to spend time with friends instead of going to work. He also said he did some work in concreting when he was 17 years old and worked in a factory at the same age. His criminal record shows that from 2003, when he was 15, until the time of his first offence as an adult in 2005, he was charged with offences including robbery, aggravated robbery, assault with intent to rob, robbery in company, resist or hinder police officer in execution of duty and offences concerning stolen vehicles. On his release on probation in 2008 he obtained employment as a labourer. However, he said this suffered after a few months when he commenced to drink, take drugs and associate with old friends again. At the age of 26, only months of his adult life have been spent in the Australian community. It could not be said that Mr Veatufunga has made a positive contribution.
There is no doubt that Mr Veatufunga is a member of a large and tight knit family. His 10 siblings and his parents live in Australia, mostly nearby. Many of his siblings have settled with partners and have started their own families. He has many cousins here and all of his mother’s siblings are in Australia. The many statements and letters from family members filed with the Tribunal express support for Mr Veatufunga and underline his connection with his family.
Mr Veatufunga’s ties to Australia are strong, longstanding and deeply rooted in family. This weighs against cancellation of his visa.
Best Interests of minor children
Mr Veatufunga has a number of nieces and nephews, some of whom have visited him in prison. He described himself as their “big brother/uncle”. He gave no evidence of a parental relationship with any children. His contact with his nieces and nephews has been necessarily minimal, given his incarceration.
This consideration is neutral.
Australia’s non-refoulement obligations
Mr Veatufunga gave no evidence and there was no material that suggested that Australia’s non-refoulement obligations are relevant to a decision about his visa.
OTHER CONSIDERATIONS
Effect on Immediate Family
All of the members of Mr Veatufunga’s family who gave evidence expressed great distress over the prospect of his removal from Australia. I have no reason to doubt their evidence. They all expressed deep concern for his welfare if he were to go back to New Zealand. The letters and statements from other members of his family echoed their distress.
No member of Mr Veatufunga’s family is financially dependent on him. There is no evidence of his having a partner. The only person who might potentially be practically dependent on his presence in Australia is his father, for whom Mr Veatufunga said he might act as a carer if released. However, this did not appear to be a definite arrangement.
The only sibling of Mr Veatufunga’s who travels regularly to New Zealand is his older brother, Hakaumotu Veatufunga, who said he visits New Zealand once or twice each year with his partner to visit her parents. I accept that the remainder of Mr Veatufunga’s family in Australia would find it financially difficult to travel to New Zealand to visit him.
This weighs against cancellation of Mr Veatufunga’s visa.
Australian Business Interests
No Australian business interests were identified by Mr Veatufunga.
Impact of Non-cancellation on Members of the Australian Community
The Tribunal was not provided with any information about the impact of any decision on victims of Mr Veatufunga’s crimes.
Impediments to be Faced on Removal from Australia
I accept that separation from his family would cause Mr Veatufunga great distress. He would be without their support and would be prevented from taking part in the life of his family. I have already accepted that they are a large and tightknit group.
However, the Direction requires me to consider whether there are any impediments to Mr Veatufunga’s establishing himself in New Zealand and maintaining basic living standards there in the context of what is generally available to other New Zealand citizens. Mr Veatufunga is a healthy and fit young man. His predominant language, English, is the predominant language of New Zealand. His other language, Tongan, will be shared by the many other Tongans living in New Zealand. He will have access to the same social security system as all other New Zealand citizens do. He will be able to access the same medical care and the same employment market. He will, however, have little or no personal support in New Zealand.
I accept the evidence of Mr Veatufunga’s mother and siblings that all of his relatives on his mother’s side reside in Australia and that only one sibling of his father’s and that sibling’s children live in New Zealand. I note that Mr Veatufunga’s mother and father and his oldest sister stayed with that cousin when they went to New Zealand for his grandmother’s funeral last year. I also note that Mr Veatufunga’s older brother visits New Zealand once or twice a year to see his partner’s family. I have no evidence as to whether any of those people would provide Mr Veatufunga with support or assistance should he be returned there.
Finally, I note that Mr Veatufunga’s mother told the Tribunal that she would give him financial support in New Zealand if he was returned. It is not clear, however, what resources she has to provide financial assistance to him.
This consideration weighs against cancellation.
BALANCING THE CONSIDERATIONS
I have concluded that Mr Veatufunga poses a high risk of serious harm to the Australian community. On the other hand he has lived here and nowhere else for 22 of his 26 years. Australia is the only home he knows. He will undoubtedly suffer if he is returned to New Zealand and his family will suffer if he is lost to them. Life in New Zealand will be possible for him, perhaps it will ultimately be profitable and successful, but there is no doubt it will be hard.
However, the gravity of Mr Veatufunga’s offending and planned offending and the trajectory of violence, aggression and resistance to rehabilitation he has followed, particularly since his imprisonment for his 2009 offences, present a risk of harm that is unacceptable.
This weighs the balance in favour of cancellation of his visa.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 69 (sixty -nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bell. ........[Sgd]................................................................
Associate
Dated 25 November 2013
Dates of hearing 13 and 14 November 2013 Applicant In person Solicitors for the Respondent Mr L Leerdam, DLA Piper Australia APPENDIX 1
Court
Offence
Date of offence
Date Convicted
Sentence
Sydney District Court
Robbery while armed with a dangerous weapon
15 April 2009
21 April 2011
Imprisonment 6 years
Sydney District Court
Conspiracy to commit offence unspecified
14 May 2009
21 April 2011
Imprisonment 6 years
Cobham Youth Court
Be carried in conveyance taken without consent of owner (2 charges)
Charged on 9 January 2004
23 October 2006
(Call-up) Control order for 1 month
Cobham Youth Court
Be carried in conveyance without consent of owner
Charged on 12 August 2003
23 October 2006
(Call-up) Control order for 1 month
Cobham Youth Court
Resist or hinder police officer in execution of duty
Charged on 1 November 2004
23 October 2006
(Call-up) Control order for 1 month
Cobham Youth Court
Robbery
Charged on 27 February 2003
23 October 2006
(Call-up) Control order for 3 months
Cobham Youth Court
Aggravated robbery
Charged on 27 February 2003
23 October 2006
(Call-up) Control order for 3 months
Sydney District Court
Aggravated robbery
17 December 2005
7 July 2006
Imprisonment 4 years 6 months
Cobham Youth Court
Resist or hinder police officer in execution of duty
Charged 1 November 2004
26 September 2005
Bond 12 months
Cobham Youth Court
Robbery in company
Charged 1 November 2004
26 September 2005
Control order 1 year
Cobham Youth Court
Assault with intent to rob
Charged on 12 July 2005
26 September 2005
Control order 1 year
Cobham Youth Court
Be carried in conveyance without consent of owner (2 charges)
Charged on 9 January 2004
26 September 2005
Bond 12 months
Cobham Youth Court
Be carried in conveyance without consent of owner
Charged on 12 August 2003
26 September 2005
Bond 12 months
Cobham Youth Court
Aggravated robbery
Charged on 27 February 2003
26 September 2005
Probation 12 months
Cobham Youth Court
Robbery
Charged on 27 February 2003
26 September 2005
Probation 12 months
Lidcombe Children’s Court
Fail to pay train fare
Charged on 15 March 2003
25 September 2003
Fine $80
Lidcombe Children’s Court
Give false/misleading information for clause 9 requirement
Charged on 15 March 2003
25 September 2003
Fine $80
APPENDIX 2
Statement of Hinemoa Funaki;
Statement of Simoni Veatufunga Mafi;
Statement of Hakaumotu Veatufunga;
Statement of Lesieli Veatufunga;
Statement of Daniel Veatufunga;
Statement of Cindy Veatufunga ;
Statement of Faa Veatufunga;
Statement of Emeline Veatufunga;
Statement of Akanete Helu; and
Statement of Caroline Vaisima.
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