Tui and Minister for Immigration and Citizenship [2010] AATA 689 (9 September 2010)

Last Updated: 13 September 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 689

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/2476

GENERAL ADMINISTRATIVE DIVISION		)
	Re		Joe Tui

Applicant

And

Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal

Senior Member A K Britton

Date 9 September 2010

Place Sydney

Decision

The decision under review is affirmed.

...................[SGD].................
Senior Member

CATCHWORDS

MIGRATION – visa cancellation – character test – Ministerial Direction – weighing of relevant considerations favours setting aside Minister’s decision to cancel visa.

Migration Act 1958 (Cth) — ss 499, 501

Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313

REASONS FOR DECISION

9 September 2010

Senior Member A K Britton

1. Mr Joe Tui has applied to the Administrative Appeals Tribunal for review of the decision made by a delegate of the Minister for Immigration and Citizenship to cancel his Australian visa. The stated ground for that decision was that Mr Tui did not pass the “character test” and that he poses an “unacceptable risk of harm” to the Australian community.
2. Mr Tui was born in Samoa and is a citizen of New Zealand. He is 35 years of age, and has lived in Australia since 2000. Since his arrival in Australia, he has been convicted of over 20 offences and spent a total of 16 months in imprisonment. He suffers from a mild intellectual disability. His two closest relatives — his sister and grandmother — live in Australia. He has few if any ties to either New Zealand or Samoa.

POWER TO CANCEL MR TUI’S VISA

3. Under s 501 of the Migration Act 1958 (Cth) (“the Act”), the Minister, or the Tribunal acting as substitute decision-maker, may cancel a visa if they “reasonably suspect that the person [who holds the visa] does not pass the character test” and “the person does not satisfy the [decision-maker] that the person passes the character test”. A person does not pass the character test if he or she has a “substantial criminal record”: s 501(6). The Act defines “substantial criminal record” to include having been sentenced to a term of imprisonment of 12 months or more, or having been sentenced to two or more terms of imprisonment where the total of those terms is two years or more: s 501(7). Mr Tui has a “substantial criminal record” as he has been sentenced to two terms of imprisonment of 16 months and 12 months respectively.
4. Mr Tui does not pass the character test. The precondition to the exercise of the power to cancel the visa has therefore been satisfied.

FACTORS RELEVANT TO EXERCISING POWER TO CANCEL MR TUI’S VISA

5. In deciding whether to exercise the discretionary power to cancel Mr Tui’s visa, I am required to have regard to “Direction [no. 41] – Visa refusal and cancellation under s 501” (“the Direction”). The Direction was issued by the Minister for Immigration and Citizenship under s 499 of the Act and commenced on 15 June 2009.
6. The Direction lists a number of “primary” and “other” considerations that the decision-maker must take into account. The Direction provides that generally, “other considerations” should be given less weight than is given to primary considerations: par 11.2.
7. The primary considerations are set out in paragraph 10(1) of the Direction:

(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).

8. A range of factors, to which the decision-maker must have regard, elaborate on these considerations.

PRIMARY CONSIDERATIONS

(A) PROTECTION OF THE AUSTRALIAN COMMUNITY

9. The Direction requires that due consideration be given to the Government’s objectives as set out in paragraph 5 of the Direction. These are in the following terms:

5.1 Objectives

(1) The objective of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens.
(2) In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.
(3) The Government is especially mindful to protect the safety of the community’s more vulnerable members, including minors, the elderly and the disabled.

10. The Direction identifies two factors relevant to assessing the risk of harm to the community of the person’s continued stay in Australia: (i) the seriousness and nature of the relevant conduct; and (ii), the risk that the conduct may be repeated: par 10.1.2.
11. Can the AAT “look behind” the convictions? Before considering the risk of harm presented by Mr Tui to the community, it is necessary to address a preliminary issue — namely, whether it is open to the Tribunal to “look behind” the outcome of Mr Tui’s convictions. The parties agree that an administrative decision-maker, in this case the Tribunal, may, if appropriate, “go behind” the facts found when an applicant in Mr Tui’s situation is convicted and sentenced: Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313. However, they disagree on whether it is appropriate to do so in this case.
12. As Branson J stated in Ali, any conviction and sentence may not be impugned and there is a strong prima facie presumption that the facts found by the court in convicting and sentencing were found correctly. This places a “heavy onus”, as Her Honour put it, on a party seeking to persuade the Tribunal to accept facts other than those on which the convicting court relied: Ali at [43]. The Minister contends that that onus is not discharged this case that.
13. Mr Tui gave evidence in these proceedings about some of the offences for which he was convicted. Except in relation to two incidents, he did not substantially challenge the prosecution’s version of events and merely raised additional subjective material that he claimed was not before the relevant sentencing court. In my view, the Tribunal is entitled to have regard to that evidence to the extent it is not inconsistent with the essential facts necessary to support the elements of the subject charge and is relevant and reliable. I have had regard to that evidence in making my decision.
14. The two incidents where Mr Tui challenged some of the “essential facts” were the 2002 assault occasioning actual bodily harm; and the most recent “recklessly cause grievous bodily harm” and “assault occasioning actual bodily harm” convictions. The police facts sheet for each incident was tendered in these proceedings. The facts sheet in respect of the 2002 assault recorded that Mr Tui punched a work mate in the face with a closed fist while wearing an iron mesh glove; the victim fell to the ground and was unconscious; and X-rays revealed that the victim sustained a broken nose. In these proceedings, Mr Tui claimed that the facts sheet made it appear that it was a one-sided attack, when in fact the victim had also punched him.
15. In respect of the 2009 assault, the police facts sheet recorded that Mr Tui had followed the victim into the men’s toilet of the Ingleburn RSL club and punched him in the forehead, initiating a melee. In these proceedings, Mr Tui denied following the victim into the toilets and throwing the first punch. Mr Tui instead claimed that he had been provoked by the victim urinating on his shoe; he then pushed the victim away and was then punched by him. Mr Tui claimed that the reason he entered a guilty plea was because he thought there was “no point” trying to defend himself due to his criminal history.
16. Mr Tui entered guilty pleas for these offences — and indeed for all offences — for which he was convicted.
17. As Branson J noted in Ali, people may on occasion plead guilty when a defence may have been available to them. It may be, for example, that a person will simply plead guilty to an offence in order to avoid the inconvenience of a trial or summary hearing. In other cases, it may be some people feel guilty although, at law, they have a defence to the charge alleged against them, and therefore accept the court’s punishment.
18. A plea of guilty, at law, is an acknowledgment by the accused person that there is sufficient evidence capable of proving each of the elements of the offence for which they have been charged. It is not necessarily a concession of each particular fact that the prosecution alleges occurred.
19. After a person pleads guilty to an offence, the standard procedure in NSW magistrates’ courts is for the police prosecutor to tender a statement of alleged facts and the accused’s criminal history (if any). The statement of facts may contain references to aggravating and mitigating features of the case. Usually, however, the evidence of mitigating circumstances is presented to the court by the defence. Naturally, the mitigating subjective evidence is usually best known to the defence.
20. It will be obvious that an unrepresented accused may not fully understand the process. More particularly, an unrepresented accused pleading guilty to a charge may not know that he or she is entitled to dispute allegations of fact made by the prosecution except insofar as that constitutes a traversal of the plea of guilty. So, for example, an accused may dispute that he punched someone, and claim instead that the use of force was an unlawful push. If an unrepresented accused does not know of this right to dispute the police statement of facts and does not know that the sentencing court is bound to make findings of fact beyond reasonable doubt before sentencing, the facts found may ultimately be incorrect because they were not challenged or tested before sentence was imposed.
21. In such a case, the Tribunal may be willing to undertake a new fact-finding exercise notwithstanding the obvious difficulties. Those difficulties may include the problem of not hearing or having access to the relevant witnesses or perhaps some of the court records. The corollary, however, is that if an accused was represented by a competent lawyer and had an adequate opportunity to provide instructions before the facts were found by the court and sentence was imposed, the Tribunal would ordinarily view with great caution a claim that the facts found by the sentencing court were incomplete or incorrect; gave undue emphasis to some aspect; or gave insufficient weight to another aspect of the case.
22. It will be recalled that Mr Tui now claims in relation to the 2009 assault that he had been provoked, and that the victim threw the first punch. Mr Tui was legally- represented in those proceedings. His explanation that he did not challenge the police account of the incident because he thought his criminal history made it futile sits uncomfortably with the submission made on his behalf by Legal Aid that the victim had taunted Mr Tui using a racial slur[1]. No mention was made of that claim in the police facts sheet or in these proceedings. That apparent inconsistency, taken together with the fact that Mr Tui was legally represented, leads me to conclude that he has not discharged the “heavy onus” that would entitle me to look behind the facts of that conviction.
23. In relation to the 2003 workplace assault, it is not clear from the little material before me if Mr Tui was represented. In these proceedings, he did not dispute that he had punched the victim twice in the face with a closed fist. Nor does he claim that he was provoked. At its highest, he now claims that it was not a one-sided attack. Even if there was some element of provocation, that is no defence to a charge of assault or a similar charge. Critically, Mr Tui does not claim to have been acting in self-defence (which would traverse the plea of guilty and impugn the conviction). In my view, even if it is assumed that he has discharged the “heavy onus” and the account given in these proceedings is accepted, it would not disturb the view taken by the sentencing court as to the seriousness of that offence, which resulted in Mr Tui receiving a three month (concurrent) sentence.

(I) SERIOUSNESS AND NATURE OF THE CONDUCT

24. The Direction sets out a number of factors to be taken into account in assessing the seriousness and nature of the offending conduct. It states that:

Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community. Those crimes involving violence, particularly against vulnerable persons (such as minors, the elderly and the disabled), are especially abhorrent to the whole community.

25. Paragraph 10.1.1(3) of the Direction provides that the sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community, and due regard must be given to the extent of the offender’s criminal record including:

(i) the number and nature of offences;
(ii) the period between offences; and
(iii) the time elapsed since the most recent offence.

26. Factors to be assessed under paragraph 10.1.1(4) include any judicial comments made about the person, parole assessments, and any relevant mitigating factors.
27. Criminal History: Mr Tui has been convicted of the following offences :

Date of conviction	Offence	Penalty
29 November 2000	Destroy or damage property	12 months good behaviour bond
	Assault officer in execution of duty	12 months good behaviour bond
	Use offensive language in or near public place	$100 plus court costs
11 January 2001	Destroy or damage property	$100 plus court costs
	Behave in offensive manner in/near public place/school	$100 plus court costs
16 February 2001	Intimidate police officer in execution of duty without actual bodily harm	$500 plus court costs
12 June 2002	Use offensive language in/near public place/school	$100
	Assault officer in execution of duty	75 hours community service
	Resist officer in execution of duty	75 hours community service
	Resist officer in execution of duty	75 hours community service
	Penalty imposed — 150 hours community service
15 October 2003	Destroy or damage property	$500
10 September 2004	Malicious wounding	12 months imprisonment (6 months non-parole)
	Assault occasioning actual bodily harm	3 months imprisonment
	Penalty imposed — 12 months imprisonment (6 month non-parole period)
16 August 2006	Destroy or damage property	$150
8 May 2007	Use offensive language in/near public place	$150
	Resist officer in execution of duty	12 months good behaviour bond
19 December 2007	Common assault	7 month suspended sentence
	Destroy or damage property	$100
26 August 2009	Assault officer in the execution of duty	3 months imprisonment
	Common assault	3 months imprisonment
	Maliciously destroy or damage property	3 months imprisonment
	Common assault	6 months imprisonment
	Recklessly cause grievous bodily harm	16 months imprisonment (6 months non-parole)
	Assault occasioning actual bodily harm	16 months imprisonment (8 months non-parole)
	Resisting officer in execution of duty	4 months imprisonment
	Assault officer in execution of duty	4 months imprisonment
	16 months imprisonment (10 month non-parole period)

28. Mr Tui has been incarcerated twice while in Australia — for six months commencing March 2005, and for 10 months commencing August 2009. In June 2010 he was released on parole and immediately transferred to Villawood Immigration Detention Centre. He remains there awaiting the outcome of these proceedings.
29. The Direction categorises a number of offences for which Mr Tui has been convicted as “serious”— assault; malicious wounding; assault occasioning actual bodily harm; and recklessly causing grievous bodily harm. In broad terms, I agree with Mr Tui that the bulk of his convictions relate to relatively minor, alcohol-fuelled behaviour. However, as he concedes, he has also been convicted of four offences that can only be regarded as serious. The details of these are summarised below.
30. Assault of work colleague — August 2002 The details of this offence are summarised above. While undoubtedly serious in nature — especially given that the victim was rendered unconscious and left with a broken nose — I accept Mr Tui’s submission that a three-month concurrent sentence indicates that the sentencing magistrate did not consider the offence to be at the high end of the scale.
31. Malicious wounding — February 2004 Mr Tui was convicted of the offence of “wound with intent to inflict grievous bodily harm” and sentenced to 12 months imprisonment. There is little documentary material relating to this offence. On his account, Mr Tui was approached by two men at a pub. He concedes that he had had too much to drink. He claims that he chased the men and that they cut him with a broken bottle. According to Mr Tui, he later apologised to the victim’s family and was told the injury was not very serious. He was sentenced to 12 months imprisonment.
32. Recklessly cause grievous bodily harm — October 2008 Mr Tui was aboard a train and intoxicated. In these proceedings, he claimed he had been drinking because he had just broken up with his partner and wanted to “make the bad feelings go away”. He was ordered to extinguish a cigarette by transit officers but refused to comply. The officers attempted to restrain Mr Tui after he advanced towards them with a glass bottle, and in the ensuing melee one of the transit officers suffered wounds to his eyes and a significant jaw injury. Mr Tui was removed from the train and held on a platform while police were called. He subsequently assaulted one of the arresting officers by kicking them in the thigh. He was sentenced to a six month non-parole period for the offence of recklessly cause grievous bodily harm. He was also charged with a number of other offences in relation to this incident of which “assault officer in execution of duty” was the most serious. The sentencing magistrate commented:

Mr Tui was out of control when these offences occurred. It is difficult to look at the outcome without feeling some revulsion at the amount of violence that was inflicted on the transit officers in simply doing their job. That there was a real risk of even greater injury is apparent from the facts that a bottle was used in one of the assaults. At the time when [these] offences were still waiting to be dealt with by the courts Mr Tui committed another series of offences...
[Transcript of proceedings, Police v Joe Tui (NSW Local Court, Magistrate Clisdell, 26 August 2010), P-1]

33. Assault occasioning actual bodily harm — May 2009 This offence occurred at Ingleburn RSL club and is detailed above. Mr Tui was on bail in respect of the offences involving the transit officers at the time of this further offence. He was heavily intoxicated. The victim suffered a black eye and a cut to the head approximately two centimetres in length. Mr Tui was sentenced to 16 months imprisonment, with an eight month non-parole period. Mr Tui was also charged with resist arrest and assault officer and sentenced to four months imprisonment.
34. The sentencing magistrate commented:

I have in sentencing have had the benefit of a pre-sentence report from Duffy Robilliard. It is apparent that there are intellectual problems that need to be dealt with in respect of Mr Tui and I take those into account in sentencing him...
There are those factors relating to his intellectual disability, the prospects of rehabilitation, his age and the fact that this is his second fulltime custodial sentence that allow me to find special circumstances in respect of the normal parole period that would otherwise apply.
[Transcript of proceedings, Police v Joe Tui (NSW Local Court, Magistrate Clisdell, 26 August 2010), P-2]

Mitigating factors: Mr Tui nominates the following as mitigating factors.

(a) His abandonment by his parents as a child. Mr Tui and his sister, Ms Haroseta Mati, have not had contact with their parents since being left in the care of their grandparents as very young children. They have not been told the reason they were left by their parents. Mr Tui and his sister believe this partly explains his criminal conduct.
(b) His naivety and lack of understanding of the dangers of alcohol before coming to Australia.
(c) His difficulties in maintaining contact with his son, which he contends has contributed to his further excessive drinking.

(II) RISK THAT CONDUCT MAY BE REPEATED

35. The Direction provides that Mr Tui’s previous general conduct and total criminal history are to be considered highly relevant to assessing any risk of re-offending: par. 10.1.2(1). The following factors are to be considered particularly relevant to that assessment:

(a) a recent history of convictions, which should be considered as indicating an increased risk of re-offending;
(b) evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation. Greater weight should generally be given to evidence from independent and authoritative sources, such as judicial comments, professional psychological reports, pre-sentence reports for the courts, parole assessments, and similar sources of authoritative information or assessment; and
(c) evidence that the person has breached judicial orders, including parole, bail, bonds, suspended sentences and any other relevant undertakings or conditions imposed by the courts.

36. History of recent convictions: Mr Tui’s most recent offence was committed in May 2009 while on bail, and involved the assault of a fellow patron at Ingleburn RSL Club. His second most recent offence and arguably the most serious involved the assault of two transit officers. His most serious offence before that — wound with intent — occurred in February 2004.
37. Evidence of extent of rehabilitation already achieved and the prospect of further rehabilitation: Mr Tui was assessed for the purpose of these proceedings by psychologist Mr John Taylor, who prepared a report and also gave oral evidence.
38. On testing, Mr Taylor found that Mr Tui had inadequate impulse control, an above average predisposition to engage in alcohol abuse and “borderline mild anger pathology”. Mr Taylor thought it relevant that the results on testing revealed that Mr Tui did not have significant antisocial characteristics in his personality adjustment.
39. Mr Taylor said that the results of actuarial testing revealed that Mr Tui had a low to moderate risk of both general and violent recidivism. Taken together with the results of psychometric testing and clinical assessment, he considered the risk of recidivism to be “moderate”. He thought that alcohol abuse had been a major contributory factor to Mr Tui’s criminal history, and that if he were able to resolve that problem and improve his impulse control, his risk of reoffending could be substantially reduced.
40. Mr Taylor was of the opinion that while in the absence of a neurological investigation it was not possible to conclude with certainty that Mr Tui suffered organic brain damage, he thought it to be a “strong possibility”. He based that opinion on Mr Tui’s presentation at interview and the report of neurologist, Dr Susan Pulman. Mr Taylor stated that brain damage would account for, among other things, his demonstrated poor emotional control. According to Mr Taylor, if Mr Tui had brain damage, it may well have been a “very significant factor” in his offending conduct.
41. Mr Taylor noted that Mr Tui had been assessed by Dr Pulman as having an IQ of 64, which meant that he was in the bottom percentile for people in his age group. According to Mr Taylor, this means that Mr Tui suffers from a mild intellectual disability.
42. Mr Taylor was of the opinion that a low IQ was not a factor relevant in the assessment of whether Mr Tui might re-offend or relapse into alcohol use.
43. The report prepared by Ms Pulman, referred to by Mr Taylor, was tendered in these proceedings. In that report, dated 6 August 2009, Ms Pulman noted that neurological assessment revealed that Mr Tui suffered from significant cognitive impairment. She believed that in the absence of medical records, it was not possible to determine whether that impairment was pre-morbid or the result of acquired brain injuries attributable to head injuries he sustained as a young man.
44. In a pre-sentence report prepared in May 2009 by Probation and Parole officer, Mr Gary Bevan, Mr Tui was assessed as unsuitable for a community service order. Mr Bevan commented that while Mr Tui had successfully completed three community service orders, his response to supervision was “borderline”. He thought this partly attributable to Mr Tui’s denial of any alcohol-related issues, poor motivation, and his failure to accept responsibilities for his actions.
45. Mr Tui’s account of alcohol use: Mr Tui testified that he did not drink alcohol before arriving in Australia. He said he started drinking after joining a local rugby league team, and found he did not know how to handle it. He claimed that he only drank once or twice a week, but drank heavily when he did — sometimes up to a case of beer in a single session. This pattern of binge drinking has continued throughout Mr Tui’s stay in Australia except, on his account, for a period following his release from prison in 2005. He said that all but one of his offences — the assault on the work colleague — occurred while he was intoxicated.
46. Mr Tui claimed that while in custody he was offered only one rehabilitation program, which took the form of informal discussions among inmates. He claimed the discussion was not led or assisted by a qualified trainer. He said he had asked prison officers and his parole officers about the availability of other programs, but was told none were available.
47. Proposed rehabilitation: Mr Tui testified that if his application before the Tribunal was successful, he planned to live with his sister and “concentrate on quitting drinking”. He claimed that he wanted to “gain control of my emotions especially my anger and my problems with alcohol”. Mr Tui’s sister, Ms Mati, testified that she would help her brother find a suitable alcohol rehabilitation program. She said she had discussions with a Minister from her church, who has agreed to assist her brother.
48. Mr Taylor noted in his report that Mr Tui had said that he is motivated to resolve his alcohol abuse issues.
49. Conduct in prison and on parole: During his last period in prison, commencing in August 2009, Mr Tui was reprimanded in respect of three incidents. The most serious involved a threat to stab an officer after Mr Tui found his cell had been ransacked following a drug search. In these proceedings, Mr Tui denied using the word “stab”, and claimed he had jokingly said that if it happened again he would “fix them up”. A report prepared by the NSW Probation and Parole Service records that Mr Tui was placed in cells for two days and lost his minimum security rating. He challenges the latter, and claims that while he was moved to another detention centre, his classification rating remained unchanged. Mr Tui was also fined $150 for breaking a window two months after commencing his sentence, and was reprimanded (but not formally punished) for taking milk from the officers’ fridge.
50. A Case Note made by an officer of the Department of Corrective Services on 24 November 2009 stated that:

... [Mr Tui] quiet and hasn’t come to the attention of the regular O/S.

51. Conclusion: Mr Tui has a lengthy and serious criminal history that includes a number of violent offences, a number of which are relatively recent. While some of his offences are, in my opinion, very serious and involve extremely violent conduct, there is no evidence to suggest that any were premeditated. Nor have the victims of his offences been vulnerable members of the community.
52. I agree with Mr Taylor that the risk of reoffending turns largely on whether Mr Tui abstains from alcohol use. Nonetheless, from what is before me, I could not be confident that Mr Tui will not relapse. In reaching that conclusion I note that Mr Tui has now been a heavy binge drinker for over a decade. During that period, he has been in trouble with the law and acted in a violent manner on a number of occasions. His most recent offence, which occurred while remanded on bail, illustrates his lack of impulse control and insight into the correlation between his drinking and propensity to act in a violent manner. It may be that this lack of insight is attributable in part at least to his intellectual disability. It may also be, as he suggests, that it is attributable to the mitigating factors on which he relies — the separation from his parents in his early years and concern about losing contact with his son. But whatever the cause, the evidence makes clear that Mr Tui has little control over his emotions and a propensity to act in a violent manner when under the influence of alcohol.
53. In assessing the likelihood that Mr Tui will re-offend, I accept that he now recognises the need to address his drinking problem. I also accept that Ms Mati is genuinely committed to assisting her brother and will call on members of her church to assist in his rehabilitation. I also accept that living with his sister and her family would assist Mr Tui in tackling his addiction. However in the absence of any detailed information about the type of rehabilitation program Mr Tui might undertake, I can at best speculate as to whether it will be suitable to his particular needs and the likelihood of a relapse. While I accept that if he were to undertake appropriate rehabilitation he might be able to stop drinking, without more I am unable to put it at any higher than a possibility.
54. In my opinion, there is a real and material risk that Mr Tui will re-offend and relapse into alcohol use. Given the long pattern of offending conduct, which includes conduct which is both violent and very serious in nature, in my opinion the protection of the Australian community weighs in favour of the cancellation of his visa.

B. NOT A MINOR WHEN HE BEGAN LIVING IN AUSTRALIA

55. Mr Tui arrived in Australia when he was aged 24. Accordingly, this factor is not relevant to the exercise of the discretionary power to cancel Mr Tui’s visa.

C. LENGTH OF TIME ORDINAERILY RESIDENT IN AUSTRALIA

56. The Direction provides: “More favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character”: par 10.3 (1).
57. Mr Tui has been resident in Australia for over 10 years. Apart from a month he has lived in Australia continuously since his arrival in April 2000. He was resident in Australia for a relatively short period before he commenced offending.
58. The not inconsiderable period of time Mr Tui has been ordinarily resident in Australia weighs in his favour, but not to the extent that it otherwise might, given he commenced offending within months of his arrival.

D. INTERNATIONAL OBLIGATIONS

59. Paragraph 10.4 of the Direction provides:

(1) Reflecting Australia's obligations under the CROC, if there is a child in Australia who is potentially affected by a visa refusal or cancellation decision, decision-makers must have regard to the best interests of the child,
(2) Where relevant, any non-refoulement obligations, including under the Refugees Convention, must be considered.

60. It is agreed that that the cancellation of Mr Tui's visa would not be contrary to Australia's non-refoulement obligations.

BEST INTERESTS OF THE CHILD

61. The Direction provides that under Australian law, it is generally presumed that a child's best interests will be served if the child remains with their parents: par 10.4.1(4). Mr Tui claims to have a nine year old son who is a resident of Australia. He is not named on the child’s birth certificate. A report prepared by the Probation and Parole Service dated 25 March 2010 noted a number of discrepancies in Mr Tui’s account of his family circumstances. It noted that the Service had been unable to make contact with Mr Tui’s “wife” or child; that they had not visited him while in St Helliers; and he had not mentioned them. Contained in the material before me is a letter from the child’s mother dated 7 February 2005 attesting that Mr Tui is the biological father of her child, and that she is willing to submit to DNA testing if requested. According to Ms Mati, the child’s mother initially agreed to give evidence in these proceedings but later refused. Ms Mati testified to her understanding that the child is her brother’s son.
62. While the evidence on this point is somewhat unsatisfactory, I accept that Mr Tui is the father of the child.
63. The Direction lists two factors that may indicate the child’s best interests are served by separation from the person: evidence that the person has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; or any evidence that the child has suffered or experienced any physical or emotional trauma arising from the person's conduct. There is no evidence that either factor applies in this case, and nor is that suggested. To preserve his anonymity, I will not refer to the child by name.
64. Paragraph 10.4.1(5) lists 15 factors to be taken into account in considering the best interests of the child. These are considered below.
65. As a preliminary matter, I note that insofar as the consideration of these issues is required, no evidence has been led on whether Mr Tui’s child is an Australian citizen or any court orders relating to personal access and care arrangements. It also appears on the evidence before me that the child was born and has been raised in Australia.
66. Nature and duration of relationship: The child lives with his mother and has never lived with Mr Tui. To date Mr Tui’s contact with the child has been determined by the relationship with his former partner, which is described as being “on and off” since his arrival in Australia. According to Mr Tui, he had regular contact with the child between 2004 until 2008 when he broke up with his partner over a disagreement over where they were to live. He claimed that after the break-up, he had some contact with the child until he was incarcerated in August 2009; there has been no contact since that time.
67. Mr Tui testified that it is a source of great sadness to him that he is unable to have contact with his son.
68. Likelihood of Mr Tui playing a full parental role up until his son’s 18th birthday: Mr Tui claims that he wishes to play a full role in the life of his son, but acknowledges that it is uncertain whether his former partner will agree.
69. Likely effect of any separation: The child has had no contact with Mr Tui since August 2009 and limited contact in the 12 months preceding that. There is no evidence before me about the likely effects of separation on the child.
70. Other person who fulfils a parental role: It would appear that the only person who plays a parental role in relation to the child is Mr Tui’s former partner.
71. Impact of Mr Tui’s prior conduct on the children: There is nothing to suggest that the child knows of or has been exposed to Mr Tui’s offending conduct.
72. Known wishes of the children: The wishes of the child are unknown.
73. Likelihood of children accompanying Mr Tui to New Zealand: Given the parlous state of the relationship between Mr Tui and his former partner, it seems highly unlikely that she would consider accompanying him if he were to be deported. Given this finding, it is unnecessary to address the factors listed in pars. 10.4.1 (5)(m),(n) and (o) of the Direction.
74. Summary: It could not reasonably be argued that Mr Tui plays or has a full parental role in the life of his son. Nor could it be said with any certainly that he will play any role in the life of the child if he were to remain in Australia. Nonetheless, I believe it would be in the child’s best interests to retain the possibility of a relationship of some type with his father. As the Minister points out, that possibility would not be ruled out if Mr Tui were to be deported. However, in my opinion, the problems of distance would further reduce the possibility of an already tenuous relationship resuming. As such, I am satisfied that the best interests of the child would be served if Mr Tui were to remain in Australia. This factor therefore weighs Mr Tui’s favour, but not to the extent it might had he played a greater role in the life of the child.

OTHER CONSIDERATIONS

75. As noted, the Direction states that other considerations, where relevant, must be taken into account but, generally, should be given less weight than primary considerations.
76. Family ties: In addition to his son, Mr Tui has significant family ties in Australia. His two closest family members — his grandmother and sister — are both long-term residents of Australia. I accept his claim, supported by his sister, that he is close to her children and husband. I have no doubt that it would cause great pain and sorrow to Mr Tui and these family members if he were to be deported.
77. Age and health: Mr Tui’s health weighs against the cancellation of visa. Two psychologists who have examined him are of the opinion that that further testing is required before the possibility that he suffers from brain damage can be excluded. While there is no evidence to suggest that such tests could not be carried out in New Zealand, given his intellectual disability, it is unlikely that he has the capacity to arrange for testing to be undertaken. This factor strongly weighs in Mr Tui’s favour.
78. Links to New Zealand and Samoa: Mr Tui has not lived in Samoa since the mid-1990s and in New Zealand since 2000. He claims to have no remaining relatives in either New Zealand or Samoa. This factor also strongly weighs in Mr Tui’s favour.
79. Hardship likely to be experienced by Mr Tui: I accept that given the lack of support available to him in New Zealand and Samoa, Mr Tui will suffer significant hardship if he is deported. His hardship will be ameliorated to a degree by the support Ms Mati has indicated she will provide in assisting her brother settle in to a new country. His reasonable employment history indicates that he is capable of obtaining and maintaining at least unskilled work. Nonetheless, and taking into account the aforementioned difficulties he may experience in seeking treatment for his intellectual condition, this factor in my opinion weighs against cancelling Mr Tui’s visa.
80. Hardship likely to be experienced by Mr Tui’s family members resident in Australia: Ms Mati has indicated that she and her immediate family may be forced to relocate to New Zealand to assist her brother if he is deported. If she were to do so it would no doubt be at significant cost to herself and her immediate family. She and her husband have good jobs, stable employment and significant community ties in Australian. This factor weighs in favour of Mr Tui retaining his visa.
81. Level of education: Mr Tui suffers from an intellectual disability. While he finished secondary school in Samoa, the details of his academic record are unclear. His sister testified that she understood that Mr Tui had been a poor student who had undertaken subjects that were not academically challenging. In my opinion, his lack of education coupled with intellectual disability means that Mr Tui will have difficulty in handling some commonly-encountered situations without assistance.
82. Notification of possible deportation: The Department wrote to Mr Tui on 8 March 2005 to advise that a decision had been made not to cancel his visa, but that cancellation would be reconsidered if he reoffended. The letter was addressed to Ms Mati’s address in Minto. I accept her claim that she did not receive the letter. I also accept Mr Tui’s claim he did not receive it.
83. Given his intellectual disability, it is plausible that — as he has claimed — Mr Tui never seriously considered the possibility that he might be removed from Australia because of his criminal record.
84. This factor weighs against cancelling Mr Tui’s visa.

DECISION

85. In exercising the discretionary power to cancel Mr Tui’s visa, I must take into account the four primary considerations and any “other” relevant factor listed in the Direction and undertake a balancing exercise. When undertaking that exercise, I must be guided by the overarching general principles set out in the objectives to the Direction — that is, the protection of the Australian community.
86. As noted, two primary factors — the length of time Mr Tui has been resident in Australia and the best interests of his son — together with a number of “other” factors, the most relevant being his intellectual disability, his possible brain damage, his significant family ties in Australia and few (if any) ties to New Zealand and Samoa, weigh in Mr Tui’s favour. It goes without saying that Mr Tui’s intellectual disability means that he will find it especially difficult to settle in a new country. When he originally moved to New Zealand, and when he subsequently migrated to Australia, he had available to him the assistance and support of family and friends, and was apparently able to cope with the transition as a result. If deported, he is deprived of those supports. While Mr Tui has the advantage of a supportive sister to assist him find accommodation and employment and generally settle in, nonetheless, I have no doubt that he would suffer significant hardship and emotional pain if he is deported.
87. As pointed out by his Counsel, Mr Tui came to Australia something of a “clean skin”. Before his arrival, he neither consumed alcohol nor had been in trouble with the law. It was in this country that he was introduced to his “life-destroying addiction” — the genesis of his current problems. While I have great sympathy for the position Mr Tui now finds himself in, I do not accept the argument put on his behalf that because his problems started in this country, the Australia community ought be prepared to accept a greater degree of risk. Nonetheless, the length of time Mr Tui has been in Australia weighs in his favour, although not to the extent it might had he not engaged in criminal activity within months of his arrival.
88. While there are a number of factors which favour Mr Tui retaining his visa, they are outweighed in my opinion by the protection of the Australian community. This is not a case of person who has committed a one-off offence, but one who committed a number of violent crimes and other less serious offences over a period of a decade. While none of the four offences I have identified as being the “most serious” were premeditated or targeted vulnerable members of the community, they were, in my view, extremely serious. Some of his victims have been left with serious — albeit non-life-threatening — injuries. It was extremely fortunate, given that all of these offences involved some kind of head injury, that they were not left with more serious conditions.
89. That Mr Tui has a significant criminal history does not, of course, mean that he necessarily poses a risk to the Australian community. The expert evidence is that if he can stop alcohol use, his risk of re-offending is low. While possible that Mr Tui might be able to beat his alcohol addiction, it is equally possible that he will fail. As such, my opinion is that there is a real risk of continued violent conduct and harm to others if he were remain in Australia. I am of the opinion that the protection of the Australian community strongly outweighs those factors which favour Mr Tui retaining his visa.
90. For this reason, I have decided to affirm the Minister’s decision.
    

I certify that the 90 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton.

Signed: ....................................[SGD]....................................

Associate to Senior Member Britton

Date: of Hearing: 16 August 2010

Date of Decision: 9 September 2010

Counsel for the Applicant: Mr N Poynder

Solicitor for the Respondent: Clayton Utz

---

[1] Transcript of proceedings, Police v Joe Tui (NSW Local Court, Magistrate Clisdell, 26 August 2010), P-1—P-2