William Anaki and Minister for Immigration and Citizenship

[2013] AATA 294

[2013] AATA 294 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/0880
Re	William Anaki
APPLICANT
And	Minister for Immigration and Citizenship
RESPONDENT

DECISION

Tribunal	Hon. Brian Tamberlin, QC, Deputy President
Date	13 May 2013
Place	Sydney

The decision under review is set aside.

................................[sgd]........................................

Hon. Brian Tamberlin, QC, Deputy President

CATCHWORDS

MIGRATION - visa cancellation - character test under s 501(2) Migration Act 1958 - Ministerial Direction 55 - decision under review set aside

LEGISLATION

Migration Act 1958; ss 501, 499

SECONDARY MATERIALS

Ministerial Direction [No.55] – Visa refusal and cancellation under section 501

REASONS FOR DECISION

Hon. Brian Tamberlin, QC, Deputy President

13 May 2013 

1. Mr Anaki is a 35 year old citizen of New Zealand born in 1977 who first arrived in Australia on 14 December 1985 aged eight and has not departed since.

2. A delegate of the Minister decided to cancel Mr Anaki’s Class TY Subclass 444 Special Category (Temporary) visa (visa) on character grounds under s 501(2) of the Migration Act 1958 (the Act).  Mr Anaki has applied to the Tribunal for review of that decision.

   HISTORY

3. It is common ground that Mr Anaki has an extensive criminal history commencing from 1991 when he was aged 14.  The most serious of Mr Anaki’s sentences relate to bank robberies and attempted bank robberies committed in 1998, 1998 and 2003 when he was an adult.

4. Mr Anaki committed the 2003 offences within one month of being released on parole in respect of offences from 1998 and 1999.  This significantly aggravates the seriousness of the 2003 conduct.  The circumstances of the 2003 offences are summarised in the judgment of the New South Wales Court of Appeal, and the effect of his earlier offences are summarised by Judge Tupman in his sentencing remarks.

5. The total amount of the money involved in the robberies carried out by Mr Anaki and his co-offenders in 1998 was $130,000 and in 2003 the amount involved was $45,205.  On two other occasions they did not succeed in obtaining any monies.

6. Mr Anaki’s adult criminal history is as follows:

Court Date	Offence	Offence Date	Penalty
28 February 1996 Balmain Local Court	§ Illegal use of motor vehicle § Possession implement to enter conveyance	On each charge: Convicted and sentenced to fixed term of 2 months’ imprisonment from 28/02/1996 to 27/04/1996.
28 August 1996 Waverley Local Court	§ Take or be carried in conveyance without consent § Steal from person	On each charge: 12 months’ imprisonment 14/08/1996 to 13/08/1997 Non-parole period of 9 months ending 13/05/1997
16 September 1996: Conviction and penalties confirmed on appeal to NSW District Court	§ Drive manner dangerous	Fixed term of 6 months’ imprisonment 14/08/1996 to 13/02/1997
§ Unlicensed driver § Not comply with direction to stop	On each charge: Convicted and fined $200
15 February 1999 Newtown Local Court	§ Larceny § Unlawfully possess etc a prescribed restricted substance (2 charges)	Convicted and fined $500 On each charge: Convicted and fined $100
10 August 2000 Liverpool District Court	§ Robbery in company	25 Sept 1998	Convicted Fixed term of 2 years’ imprisonment 7/4/1999 to 6/4/2001
§ Robbery in company	23 Oct 1998	Convicted Fixed term of 2 years and 6 months’ imprisonment 07/04/1999 to 06/10/2001
§ Robbery in company	30 Oct 1998	Convicted Fixed term of 3 years’ imprisonment 07/04/1999 to 06/04/2002
§ Robbery in company	4 Dec 1998	Convicted Fixed term of 3 years and 6 months’ imprisonment 07/04/1999 to 06/10/2002
§ Robbery in company	31 Dec 1998	Convicted 6 years and 6 months’ imprisonment 07/04/1999 to 06/10/2005 Non-parole period of 4 years ending 06/04/2003
§ Robbery in company	2 Feb 1999	Taken into account when imposing sentences for above 5 offences
26 October 2000 Downing Centre Local Court	§ Larceny	Sentenced to the rising of the court
10 February 2006 NSW District Court	§ Assault with intent to rob	2 May 2003	Convicted 7 years’ imprisonment 02/08/2008 to 01/08/2015 Non parole period of 4 years ending 01/08/2012
10 November 2006: Sentences varied by the NSW Court of Criminal Appeal Sentences shown by this table are as varied on appeal	§ Robbery armed with offensive weapon	13 May 2003	Convicted 6 years’ imprisonment 02/08/2005 to 01/08/2011 Non parole period of 4 years and 6 months ending 01/02/2010
§ Attempted robbery armed with offensive weapon	12 June 2003	Convicted 6 years’ imprisonment 02/02/2007 to 01/02/2013 Non parole period of 4 years and 6 months ending 01/08/2011
§ Be taken in conveyance without consent of owner	13 May 2003	Taken into account when imposing sentence for offence “Assault with intent to rob” of 2 May 2003
§ Armed with intent to commit indictable offence	27 May 2003
§ Take & drive conveyance without consent of owner	27 May 2003
§ Aggravated assault with intent to take/drive motor vehicle – armed with weapon	12 June 2003

1. Mr Anaki’s earlier criminal history, dating from when he was a minor, is as follows:

Court Date	Offence	Offence Date	Penalty
20 August 1991 Royleston Children’s Court	§ Stealing	Without conviction Released on entering recognizance $10 to be of good behaviour for 6 months
23 June 1992 Bidura Children’s Court	§ Steal from Person (2 charges)	On each charge: Without conviction.  Probation 12 months
7 August 1992 Burwood Children’s Court	§ Malicious damage § Custody of offensive implement	On each charge: Without conviction.  Community service order 20 hours
6 November 1992 Bidura Children’s Court	§ Malicious damage § Open door whilst train in motion § Evade fare	On each charge: Without conviction.  Fined $50
22 December 1992 Bidura Children’s Court	§ Stealing	Without conviction.  Probation 12 months
6 May 1993 Bidura Children’s Court	§ Steal from motor vehicle § Assault (3 charges) § Possess prohibited weapon	On each charge: Without conviction. Control order 6 months
30 August 1993 Lidcombe Children’s Court	§ Break, enter and steal	Without conviction.  Probation 12 months
5 December 1994 Bidura Children’s Court	§ Break, enter and steal § Resist police	On each charge: Convicted.  Probation 2 years
18 September 1995 Bidura Children’s Court	§ Stealing § Assault police § Resist police	On each charge: Convicted and fined $100

1. These tables show that Mr Anaki has spent only three years in the community since his 18^th birthday and has been imprisoned for a total period of around 15 years.

2. On 16 April 1997 the Department of Immigration and Citizenship (the Department) sent a letter to Mr Anaki warning him of the consequences of further offending, including cancellation of his visa.  Mr Anaki denies receipt of this.  He says he only saw the letter for the first time in September 2011.  I am satisfied that the letter was sent and that it is probable Mr Anaki received it.  But I do not consider that he appreciated its significance.

3. On 5 September 2011 the Department advised Mr Anaki that his visa was being considered for cancellation and sought a response after setting out details of adverse information.  Mr Anaki sent a written statement in response.

4. On 2 December 2011 a delegate of the Minister of Immigration and Citizenship (the Minister) decided to exercise the discretion to cancel the visa.  In a letter dated 12 December 2011 Mr Anaki was notified of the decision.  This notification was subsequently held by the Federal Court to have been invalid.  The Department provided a new notification of the visa cancellation to Mr Anaki on 14 February 2011 and the matter now comes to the Tribunal for review.

   LEGISLATION

5. Under s 501(2) of the Act the Minister has discretion to cancel a visa that has been granted to a person if the Minister reasonably suspects that the person does not pass the character test. Subsection (6) of that provision states that a person does not pass the character test if the person has a “substantial criminal record”. This latter expression includes a term of imprisonment of 12 months or more; see s 501(7).

6. It is clear that the Minister has the requisite discretion to cancel Mr Anaki’s visa.  The issue is whether that discretion should be exercised to cancel the visa. 

7. Guidelines have been provided under s 499 of the Act which the Minister must take into account when considering the discretion whether to cancel Mr Anaki’s visa.  These guidelines are binding on the Minister and, consequently, on this Tribunal.

8. The Direction provides four primary considerations and refers to a number of other considerations which I will consider below. It provides that the four primary considerations generally be given greater weight.

9. The two relevant primary considerations in this case are:

   (a)The Protection of the Australian community from criminal or other serious conduct; and

   (b)The strength, duration and nature of the person’s ties to Australia.

10. Other primary considerations are the best interests of minor children in Australia and whether Australia has international non-refoulement obligations to Mr Anaki. Neither applies in this case.

11. I now turn to consideration of the primary matters.

    PROTECTION OF THE AUSTRALIAN COMMUNITY

12. The conduct of Mr Anaki can only be described as extremely serious in nature and degree. The guidelines state that crimes of violence and robbery must be viewed very seriously.  There are a series of bank robberies or attempts and of their nature these are violent offences.  There were several instances of these offences.

13. In relation to the 2003 offence, the sentencing judge observed that there was no overt threat of violence in the robberies, although there was some minor violence perpetrated on one of the bank officers at Hurstville.  On the sentence appeal, the NSW Court of Criminal Appeal noted that while it could have been used differently, the sledge hammer was not used to injure anyone.  In fact it appears that the sledge hammer was used to damage property in order to gain better access to monies.

14. There is no evidence that Mr Anaki himself was responsible for injury to any person in any of these offences.

15. However, the fact remains that Mr Anaki used or threatened to use violence in 2003 and has been convicted of assault with attempt to rob and aggravated assault with intent to take or drive a motor vehicle.  One of his co-offenders produced a knife, forced a driver to open a door, and then smashed one of the windows.  The material does not establish that Mr Anaki himself carried out any such act. 

16. It is clear that victims of Mr Anaki’s bank robberies in 1998 and 1999 were put in a state of fear and terror as a result of the robbers’ conduct.  It is said that one offender, whose name is not specified, made a threat requiring staff and persons present to get down and said that they “were professionals” and had a gun.  In fact there was no weapon used or produced and no serious violence or actual violence to any person took place, according to the sentencing judge.

17. Importance must be assigned to the fact that Mr Anaki has a history of violent crimes dating from when he was a minor including assault and resisting arrest.

18. The violent nature of the robberies are adverse to Mr Anaki’s case but is important to take into account that he was not convicted of any physical violence to any person in the course of the robberies.

19. A further relevant factor I have taken into account is that the crimes were committed against vulnerable members of the public, and this aggravates the matter.  This was noted in the Court’s sentencing remarks with respect to the 2003 offence.

20. The sentences imposed on Mr Anaki carried penalties of 20 years imprisonment in respect the 1998/1999 offences and resulted in an overall term of imprisonment of six years and six months.  A non-parole period of four years was imposed.  In respect of the 2003 offences, after appeal, the primary sentence was reduced from 13 years to 10 years’ incarceration.  This was a heavy sentence.  It was also noted that there was a degree of planning involved in the 2003 offence and substantial amounts of money were involved. 

21. Mr Anaki has had a history of relative frequency of offences and they have shown a tendency to increase in seriousness.  Again, these factors weigh against Mr Anaki.  Another important factor which must be taken into account is a warning given in 1997 as to the consequences of further offending in terms of migration status.  Although Mr Anaki denies receipt of this as noted earlier, I think the probability is that he did receive the warning letter, but its significance was not appreciated by him.

    FIRST PRIMARY FACTOR: RISK TO THE AUSTRALIAN COMMUNITY

22. The Tribunal must take into account the conduct and harm that may be caused if the conduct were repeated and also whether it is so serious that any risk, repetition or recidivism is unacceptable.  The greater the seriousness of the potential harm then the less is the community’s tolerance for any risk of future harm.

23. The Minister contends there is a high risk of harm that for the nature of the potential harm the risk is unacceptable, even if it is found to be at the lower end of the scale.  The risk of recidivism can be a real one if it is not far-fetched or fanciful and can include a low or minimal risk.  If Mr Anaki were to repeat his criminal conduct there would be very serious harm to the public.

24. It is also necessary to take into account the information and evidence on the risk of the person re-offending and the evidence of rehabilitation giving weight to time spent in the community since the most recent offence.

25. In assessing the information relating to the risk of re-offending, the Minister points in particular to the fact that the most serious offence was committed whilst on parole, which indicates a lack of respect and appreciation of the significance of the criminal conduct and of the need to obey court orders and this is therefore an important factor in favour of cancellation.  The Minister says that Mr Anaki carries a high risk of re-offending because even when he was aware that adverse consequences will result he re-offended.  The Minister points out that he has been found to have taken drugs and possession of drug implements and some assaults.  However, he has successfully completed a number of rehabilitation programs.  He has been free from drugs over the last 18 months.

26. The Minister notes that since his most recent offence Mr Anaki has not been in the community so he cannot rely on his rehabilitation whilst exposed to normal everyday pressures.

27. At the hearing Mr Anaki gave evidence and was cross-examined and he called a number of witnesses, including his step-mother, his natural mother, his natural sister and his step-sister.  In addition he produced some character references. 

28. Mr Anaki gave evidence, which I accept, that he did not commit any acts of physical violence in any of the bank robberies.  He admits that he did use a sledge hammer to damage property.  I accept that he is strongly remorseful and intensely regretful of the shame that he has brought on his family as to which he has extremely strong ties and a deep attachment.  I found him to be a frank open witness who made no attempt to deny responsibility for his conduct.  He did not seek to blame the influence of drugs or lack of mindfulness for his involvement.  Also, he readily acknowledged that he has used drugs while in prison.  The evidence is that he has been “clean” from drug taking over the past 18 months.  There have been some instances of aggressive conduct whilst in prison, but I give weight to what Mr Anaki says when he states that he was responding to provocation and acted in self-defence.

29. Since his incarceration for the last 10 years he has been regularly visited by members of his family who have provided strong moral support for him over many years.  I consider that he has genuinely come to regret his conduct and its impact on his family as a result of this lengthy imprisonment.

30. I was particularly impressed with the evidence of his step-sister Mrs Lavina Siumaka who has known him since the age of 13.  She was familiar with his record of armed robbery but not in great detail.  She regards him as kind, hard-working and honest and has taken steps to help him get away from bad influences and to stabilise his life.  He went to live with her and her family when he was in his early 20s.

31. His mother and step-mother gave evidence of a very strong loving attachment and willingness to care for him if he remains in the Australian community.  I accept this evidence.

32. The evidence of Mr Anaki satisfies me that he has a number of practical skills.  He has shown a readiness to work and he would not have difficulty in obtaining employment if released into the community.

33. The Minister’s representative submits that the relatives giving evidence were not fully aware of the detailed circumstances of the bank robberies and drug taking.  However, I am satisfied they were aware that he has been convicted of serious crimes.

34. The witnesses indicated that they would help him into employment, counselling and community services to take part in cultural activities of their ethnic community to which they have a deep family attachment.

35. There was also evidence from his sister, Patricia Thompson, and from the Minister of the Carlton-Ramsgate Uniting Church.

36. Having regard to this evidence I am satisfied that given the exceptionally strong family support and the evidence of Mr Anaki in the present case and the impact of his lengthy imprisonment that any risk of re-offending and causing violence to members of the Australian community is not a significant one.

37. In reaching this conclusion, I have taken into account the very positive remarks made by Kay Armstrong, the Probation and Parole Officer at the Junee Parole Unit on 1 September 2011, where she makes the assessment that:

    Mr Anaki has most recently received satisfactory reports in relation to his attitude and behaviour within the custodial environment.  He has completed… targeted programs to address drug and alcohol issues and continued to attend relapse prevention meetings on a regular basis.  The offender has been assessed as suitable for the VOTP program and expressed his intention to participate in same when offered a placement.  He has also completed a number of educational courses.

    Mr Anaki has no family support in New Zealand, with his mother, siblings and extended family members all report to reside in Australia.

    SECOND PRIMARY FACTOR: STRENGTH, DURATION AND NATURE OF MR ANAKI’S TIES TO AUSTRALIA

38. This consideration weighs heavily against the cancellation of Mr Anaki’s visa.

39. He has no significant family or cultural connection with New Zealand.  He has lived in Australia for 27 years since the age of eight years.  He has exceptionally strong cultural and family ties and support here in Australia which is not available elsewhere.

40. It is true that there would be no problems with respect to language if returned but the fact remains that he has no support or contact in the New Zealand community.  His attachment and respect for his family here is strong, enduring and sincere.  They are capable of giving him the essential support he needs.  Whilst it is correct that there is no evidence that Mr Anaki has any strong or long-lasting links to the wider Australian community, deep ties exist with his immediate family.

    BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

41. Since Mr Anaki has no children in Australia it is not a relevant consideration.

    INTERNATIONAL NON-REFOULEMENT OBLIGATIONS

42. Again this is not relevant because no such obligations are enlivened in this case.

    GENERAL MATTERS FOR CONSIDERATION

43. It is necessary to take into account the impact of the visa cancellation on the person’s immediate family.

1. In the present case, I am satisfied that there will be a severe disruption and adverse emotional disturbance on the part of his mother, step-mother and sister and step-sister if Mr Anaki does not remain in Australia.  It is common ground that this consideration weighs heavily in favour of Mr Anaki.

2. There will be no impact on any business interests if the decision under review is affirmed.

3. Mr Anaki’s age and health are not an impediment to being removed from Australia nor are considerations of language or cultural background.  However, I am satisfied that the disruption and loss of contact with his family and the loss of emotional support could have a severe impact on his emotional and mental ability to cope with the pressures of life outside prison.

   CONCLUSION

4. In this matter, having regard to the non-existence of any significant risk of violence to the Australian community of violence, or of repetition of past offences, and also to the strong family support; the length of his stay for 27 years in Australia, and the consequent adverse impact on Mr Anaki and his family, if his visa were to be cancelled, I conclude that the correct and preferable decision is that the decision under review be set aside and in lieu thereof, I substitute the decision that the visa of Mr Anaki should not be cancelled.

I certify that the preceding 54 (fifty four) paragraphs are a true copy of the reasons for the decision herein of the Hon. Brian Tamberlin QC, Deputy President.

......................................[sgd]..................................

Associate

Dated  13 May 2013

Date of hearing	23 April 2013
Applicant	In person
Solicitors for the Respondent	M Kochardy, Department of Immigration and Citizenship