Temo and Minister for Immigration and Citizenship [2012] AATA 782 (12 November 2012)

Last Updated: 13 November 2012

[2012] AATA 782

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/3641
Re	Jikoivavalagi  Temo
	APPLICANT
And	Minister for Immigration and Citizenship
	RESPONDENT

DECISION

Decision Summary

The decision under review is set aside and a decision substituted that the Minister’s discretion under s 501(2) of the Migration Act 1958 should not be exercised to cancel Mr  Temo ’s visa.

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

Deputy President R P Handley

CATCHWORDS

IMMIGRATION – visa cancellation – Ministerial discretion under s 501 of the Migration Act 1958 – Direction 55 – Applicant has substantial criminal record – Applicant in Australia since being a young child – Decision under review set aside and decision substituted that the Minister’s discretion under s 501 not be exercised

LEGISLATION

Migration Act 1958 (Cth)

SECONDARY MATERIALS

Direction [no. 55] - Visa refusal and cancellation under s 501

REASONS FOR DECISION

Deputy President R P Handley

Deputy President R Deutsch

1. Mr  Temo  has applied to the Tribunal for the review of a decision of a delegate of the Minister for Immigration and Citizenship (the Minister) to cancel his visa on the ground that he does not pass the character test because of his substantial criminal record.

BACKGROUND

2. Mr  Temo  was born in Fiji in April 1983 and is now aged 29. In 1987, when he was four years old, he moved from Fiji to Australia with his family. He is a Fijian citizen. On his arrival in 1987 he was granted a 12 month visitor visa. He overstayed this visa, and was granted a Bridging Visa E on 21 May 1997. He was subsequently granted a Class BF Subclass 154 Transitional (Permanent Resident Return) visa on 28 January 1998. Apart from a visit to Fiji between 17 December 1998 and 13 January 1999, Mr  Temo  has not otherwise departed Australia.
3. On 24 September 2002, when Mr  Temo  was 19 years old, he was found guilty of the offences ‘Resist or Hinder Police Officer In The Execution of Duty’, for which he was fined $300, and ‘Destroy or Damage Property’, for which he was ordered to pay $1,995 compensation and sentenced to a two year good behaviour bond.
4. Thereafter, Mr  Temo ’s criminal history is as follows:
   • On 28 February 2003, he was convicted of the offence ‘Be Carried in Conveyance Taken Without Consent Of Owner’, committed on 19 January 2003 (this was taken into account on a form 1).
   • On 24 April 2003, he was convicted of:
     • Aggravated Robbery With Wounding/Grievous Bodily Harm, committed on 22 December 2001 (sentenced to 3 years and 9 months imprisonment);
     • Use Offensive Weapon To Prevent Lawful Detention, committed on 19 January 2003 (sentenced to 3 years and 3 months imprisonment); and
     • Robbery Armed With Offensive Weapon, committed on 19 January 2003 (sentenced to 4 years and 9 months imprisonment).

The total sentence for these offences was six years with a non-parole period of three years and six months.

• On 19 May 2003, he was convicted of:
  • Two counts of Common Assault (sentenced to 3 months imprisonment in respect of each count); and
  • Destroy Or Damage Property (fined $300).
• On 31 July 2003, he was convicted of Common Assault (sentenced to 6 months imprisonment).
• On 8 December 2006, he was convicted of:
  • Destroy Or Damage Property (fined $500); and
  • Enter Inclosed (sic) Land Not Prescribed Premises Without Lawful Excuse (fined $300).
• On 28 August 2008, he was convicted of Robbery In Company, committed on 12 May 2007 (sentenced to 4 years imprisonment with a non-parole period of two years).
• On 20 April 2012, he was convicted of the following offences committed on 29 January 2012:
  • Assault Occasioning Actual Bodily Harm (sentenced to 10 months imprisonment with a non-parole period of six months); and
  • Resist Officer In Execution of Duty (sentenced to 6 months imprisonment).

5. In the last ten years, Mr  Temo  has spent the following periods in custody/prison, totalling seven years and ten and a half months: 23 November 2002 to 9 January 2003, 20 January 2003 to 18 July 2006, 12 May 2007 to 24 January 2011, 29 January 2012 to 26 August 2012. Mr  Temo  was released on parole on 26 August 2012, but immediately taken into immigration detention at Villawood Detention Centre. His parole from his most recent sentence expires on 26 December 2012.
6. Mr  Temo  was first notified of the possibility of his visa being cancelled by letter dated 7 November 2006, when he received notice that the Minister for Immigration and Multicultural Affairs intended to examine whether there were grounds to cancel his visa. He was subsequently notified by letter dated 9 May 2007 that the Minister had decided not to cancel his visa. That letter also warned Mr  Temo  that any further criminal convictions or other conduct falling within the scope of s 501(6) of the Migration Act 1958 (Cth) could result in the Minister reconsidering the cancellation of his visa. Mr  Temo  acknowledged receipt of this warning.
7. Mr  Temo  received a second notification about the possibility of his visa being cancelled by letter dated 14 May 2010, when the Department of Immigration and Citizenship (the Department) notified him that his visa could be liable for cancellation under s 501 of the Migration Act on character grounds. Again, he was subsequently notified by letter dated 18 November 2010 that a delegate of the Minister had decided not to cancel his visa, but with the following warning:

Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered. (Original emphasis)

Mr  Temo  acknowledged receipt of this warning on 24 November 2011.

8. In relation to the current matter, the Department sent Mr  Temo  a ‘Notice of Intention to Consider Cancellation’ of his visa on 16 May 2012, inviting him to respond. On 23 May 2012, Mr  Temo  acknowledged receipt of the Notice and subsequently made a number of written submissions. By letter dated 21 August 2012, a delegate of the Minister advised Mr  Temo  that his visa had been cancelled and provided him with a Statement of Reasons for the cancellation of his visa under s 501(2) of the Migration Act together with a Departmental Submission relating to his visa cancellation.
9. On 22 August 2012, Mr  Temo  applied to the Tribunal for a review of this decision.

RELEVANT LAW AND POLICY

10. Section 501(2) of the Migration Act provides that the Minister may cancel a visa if “the Minister reasonably suspects that the person does not pass the character test” and “the person does not satisfy the Minister that the person passes the character test”. Section 501(6)(a) provides that a person does not pass the character test if the person has a substantial criminal record. ‘Substantial criminal record’ is defined in s 501(7) as, among other things, having been sentenced to a term of imprisonment of 12 months or more, or to two or more terms of imprisonment where the total of those terms is two years or more.
11. Mr  Temo  has been sentenced to terms of imprisonment of 12 months or more on four occasions. Thus, he does not pass the character test. It was therefore open to the Minister to cancel Mr  Temo ’s visa. In exercising this discretion, the decision-maker must apply Direction [no. 55] - Visa refusal and cancellation under s 501 of the Act (Direction 55). Direction 55 sets out a number of principles that provide a framework for decision-makers in approaching their task. These include the following:

6.3(1) ...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.

(2) 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.

(3) ...

(4) ... Australia may afford a higher level of tolerance of criminal or other serious misconduct 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) ...

(6) The length of time a non-citizen has been making a positive contribution to 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.

12. Paragraph 7(1) of Direction 55 states that informed by the principles in paragraph 6.3, a decision-maker:

(a) ...

(b) is required to determine whether the risk of future harm by a non-citizen is unacceptable. This requires a balancing exercise, involving a consideration of the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community.

13. Paragraphs 9 and 10 set out 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 are set out in paragraph 9(1):

9. 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.

14. Subparagraphs 8(4) and (5) state:

(4) Primary considerations should generally be given greater weight than the other considerations.

(5) One or more primary considerations may outweigh other primary considerations.

The relevant primary and other considerations are discussed below.

PRIMARY CONSIDERATIONS

15. The ‘primary’ considerations relevant in Mr  Temo ’s case are the protection of the Australian community from criminal or other serious conduct; the strength, duration and nature of his ties to Australia; and the best interests of any minor children he has or is in contact with in Australia. Australia does not appear to have any international non-refoulement obligations to Mr  Temo . The relevant primary considerations are addressed below.

PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT

Protection of the Australian community

16. Paragraph 9.1 of Direction 55 states:
    • (1) When considering the protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

(2) Decision-makers should also give consideration to:

(a) The nature and seriousness of the person’s conduct to date; and

(b) The risk to the Australian community should the person commit further offences or engage in other serious conduct.

The nature and seriousness of the conduct

17. Paragraph 9.1.1(1) of Direction 55 states:
    • (1) In considering the nature and seriousness of the person’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
      1. The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
      2. The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
      100. Where the person is in Australia, that a crime committed while the person was in immigration detention; during an escape from immigration detention; or after the person escaped from immigration detention, but before the person was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
      4. The principle that any conduct that forms the basis for a finding that a person does not pass the character test under s 501(6)(b) or (d), or is not of good character under s 501(6)(c), is considered to be serious;
      5. The sentence imposed by the courts for a crime or crimes;
      6. The frequency of the person’s offending and whether there is any trend of increasing seriousness;
      7. The cumulative effect of repeated offending;
      8. Whether the person has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
      9. Whether the person has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the person’s migration status (noting that the absence of a warning should not be considered to be in the person’s favour);
      10. Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
18. As is evident from Mr  Temo ’s criminal history, he has committed, and been convicted of, a number of serious crimes involving violence. On 22 December 2001, he participated with others in the physical assault of a man and stealing his mobile phone and wallet. On the same night, he also maliciously wounded another man by striking him over the right eye with a bottle. In his sentencing remarks on 24 April 2003 in relation to the charge of malicious wounding, Keleman J, said that Mr  Temo ’s striking his victim with a bottle “caused a wound to open up above [the victim’s] right eyebrow that subsequently resulted in [the victim] requiring eleven stitches to that injury”. In oral evidence at the hearing, Mr  Temo  said he did not disagree with the stated facts in relation to the incidents on 22 December 2001, but he cannot really remember what happened because he was very intoxicated at the time.
19. In the incident on 19 January 2003, which involved breaking into and stealing a car with two co-offenders, and then afterwards getting into a taxi which took them to Seven Hills railway station, Mr  Temo  pulled out a screw driver with which he threatened to kill the taxi driver if he did not hand over his money. He also later used a screwdriver to threaten a police officer who had arrived at the scene. In oral evidence at the hearing, Mr  Temo  said, he was heavily intoxicated at the time and can only remember bits and pieces of what happened.
20. On 12 May 2007, while on parole for the armed robbery with an offensive weapon committed on 19 January 2003, and under the influence of alcohol and cocaine, Mr  Temo , in company with another, robbed a man of his mobile phone and wallet. In his sentencing remarks, Tupman J said the victim:

... was at the Courthouse Hotel in Taylor Square, Darlinghurst with friends. He had been there for about an hour. He went downstairs to use the toilets and went into a cubicle which unfortunately did not have a lock. He pushed the door closed to use the toilet. As he went to leave, this offender, and, according to the facts, the co-offender ... forced their way into the cubicle.

... [Mr  Temo ’s co-offender grabbed the victim by the throat, punched him with a closed fist and demanded money. After the victim, had handed over everything he had in his pockets, the co-offender hit him another six or seven times in the face. At this stage, Mr  Temo  said to his co-offender:]

“Let’s go”, and I accept that was because he wanted to stop him continually hitting the victim.

[The co-offender then threatened to kill the victim if he called the police or reported the offence.]

This offender [Mr  Temo ] also threatened the victim verbally by telling him that if he called the police he would kill him. He then said [to his co-offender], “Let’s go”, and the two left.

21. In oral evidence at the hearing, Mr  Temo  said he tried to stop his co-offender from carrying on hitting the victim. He had not known that his co-offender was going to do this – he had not known his co-offender before this incident. Moreover, it was just his co-offender who threatened to kill the victim. Notwithstanding this, Mr  Temo  acknowledged that he was guilty of the offence of robbery in company because he had taken some of the victim’s possessions. He was on parole at the time.
22. Tupman J goes on to relate Mr  Temo ’s criminal history as it was in 2008, stating:

He comes to court with, unfortunately, a criminal record for similar offences including a conviction in 2003 for aggravated robbery with wounding. That was committed when he was eighteen. That gave rise to a term of imprisonment. He has other entries on his record for resisting police, destroying and damaging property, common assault, larceny motor vehicle type offences and the offence for which he was on parole at the time, armed robbery committed in January 2003 for which he received a prison term of four years and nine months with a two year and three months non-parole period. ... He, at the same time apparently, committed an offence of using an offensive weapon to prevent lawful detention ... and for that he received a term of imprisonment of three years and three months with a non-parole period of one year and nine months ... Thus he was on parole at the time he committed this offence for in fact a very similar if not identical sort of matter.

23. Mr  Temo ’s most recent offence, committed on 29 January 2012, also involved violence. According to the Police Fact Sheet, Mr  Temo  assaulted a security guard who was on duty outside the Beauchamp Hotel in Oxford Street, Darlinghurst. At 2.30am,

... the accused person has swung his left fist at the victim which has connected with the victim’s left eye. This has caused the victim to fall to the ground. The accused has then punched the victim once more to the face, connecting with his left eye. This has caused the victim to have immediate swelling and bruising to his left eye. The accused has then kicked the victim once to the torso area, causing immediate pain and tenderness, before leaning on the victim with his knee. Due to the initial punch, the victim sustained a cut to the inside of his lip.

Mr  Temo  subsequently resisted arrest by Police who tasered him twice before he complied.

24. Mr  Temo  was convicted in Central Local Court of ‘assault occasioning actual bodily harm’ and ‘resist an officer in execution of duty’, and was sentenced to 10 months (with a non-parole period of six months) and six months imprisonment respectively. In her sentencing remarks, Magistrate Farnan said that the level of violence used by Mr  Temo  was “completely unacceptable and clearly could have led to far more serious injuries than in fact eventuated”: the ‘assault occasioning actual bodily harm’ was a “very serious matter”. Magistrate Farnan noted that Mr  Temo  had pleaded guilty, and also that he was on parole at the time and “up until this particular incident, the pre-sentence report certainly suggests that you were doing quite well”. However, on this occasion Mr  Temo  was “extremely intoxicated”.
25. Mr  Temo  said he does not fully agree with the Police Fact Sheet. The incident arose out of an argument between him and a security guard outside the Beauchamp Hotel when the security guard refused to let him go into the night club and tried to throw him out. Contrary to what the Magistrate said, Mr  Temo  said he had had a few drinks – mixed drinks with vodka, but was not drunk. When the security guard put his hands on Mr  Temo  to throw him out, Mr  Temo  became angry and hit the guard. As the guard fell, he grabbed Mr  Temo ’s leg and Mr  Temo  shook his leg to try and throw him off. Mr  Temo  said he did not hit the guard a second time nor did he kick the guard when he was on the ground, although the guard may have been accidentally hit by Mr  Temo ’s leg as he struggled to free his leg from the guard’s grip. He is sorry for what happened and acknowledges that the guard was just trying to do his job.
26. Mr  Temo  was also asked about some documents produced under summons by the NSW Police. These include a series of incident reports referring to Mr  Temo . On 29 September 2006, Mr  Temo  was arrested after running away from the Police in Darlinghurst following an incident in which another person was assaulted. Mr  Temo  was questioned by Police and took part in an identity parade after which he was released. Mr  Temo  said he ran away from Police because he was on parole at the time and was not supposed to be out drinking. He did not punch the victim of the assault and when he took part in the identification parade, the victim said he was not the person who had hit him. Mr  Temo  said he was released and nothing more came of it.
27. In an incident on 8 December 2006, Mr  Temo  is reported to have forced his way into a house, damaging the front door and telling the occupant of the house, whom he did not know, “Someone’s trying to get me, someone’s chasing me.” After a few minutes, Mr  Temo  left the premises and was arrested a short time later by the Police who found him lying on the ground “extremely intoxicated”. Mr  Temo  told the Tribunal that he had seen a few old acquaintances who were out to get him; he knocked on someone’s door to get help. He agreed that he broke the lock on the door, split the door, and that the occupants were distressed and frightened. We note that this appears to be the incident in respect of which Mr  Temo  was convicted of the offences of “destroy or damage property” and “enter inclosed [sic] land not prescribed premises without lawful excuse” in respect of which he was fined $500 for each offence. Mr  Temo  said he was also ordered to pay compensation for the damage to the door.
28. The third incident Mr  Temo  was asked about took place on 15 December 2011. Police at Central Railway Station were patrolling with a drug detection dog. When Mr  Temo  saw them, he turned and quickly walked away. The Police stopped and questioned him and checked on his identity. Having discovered that Mr  Temo  had a history of drug and property related offences, the Police asked him about his drug use and he is reported to have stated that he is “an occasional user of cannabis”. He was searched and nothing was found. Mr  Temo  told us that he had used drugs, including cannabis, when he was young, but in December 2011 he was not an occasional user of cannabis.
29. It is clear that Mr  Temo  has a history of violent crime, albeit it under the influence of alcohol or drugs. The seriousness of a number of the offences he has committed is reflected in the lengthy prison sentences imposed: on four occasions of more than three years, the longest sentence being of four years and nine months. As noted above, Mr  Temo  has spent a total of seven years and ten and a half months in prison in the last ten years.
30. Mr  Temo  has been warned on two previous occasions – on 9 May 2007 and on 18 November 2010 – that any further offending or misconduct would lead to the cancellation of his visa being reconsidered. He committed the offence of ‘robbery in company’ on 12 May 2007, 3 days after the date of the first warning letter, but it is possible that he did not receive the letter until after his arrest on 12 May 2007 since his undated acknowledgment of having received the warning letter appears to have been faxed on 20 June 2007. Mr  Temo  has two convictions after the second warning letter – those in respect of the incident on 29 January 2012.
31. We are not satisfied that there is any particular trend in Mr  Temo ’s offending. However, the evidence is clear that his offending behaviour is associated with his consumption of alcohol. Mr  Temo  told us that he now realises that he cannot drink at all: when he is drinking, he does not think, he drinks too much and “acts stupid”.

The risk to the Australian community should the person commit further offences or engage in other serious conduct

32. Paragraph 9.1.2(1) states that, in considering whether a person represents an unacceptable risk of harm:

... decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. In making this assessment, decision-makers must have regard to, cumulatively:

1. The nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and
2. The likelihood of the person engaging in further criminal or other serious conduct, taking into account:
   1. information and evidence on the risk of the person re-offending; and
   2. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

33. The Tribunal notes that after Mr  Temo ’s first conviction, his other offences have all been committed in breach of judicial orders: in 2003, of a good behaviour bond and, in relation to his other offences, in breach of parole. His oral evidence at the hearing indicates that alcohol consumption has continued to be his principal problem. However, until he developed depression in late 2011, it appears Mr  Temo  was compliant with the conditions of his parole. We note that included in the Department of Corrective Services documents produced under summons is a Parole Service case note for 7 December 2011, which refers to Mr  Temo  feeling depressed and it being agreed that a referral for psychological counselling would be beneficial.
34. In his sentencing remarks on 28 August 2008 at p 7, Judge Tupman acknowledged of Mr  Temo :

... that all of his criminal history amounts to offences he has committed whilst he has been under the influence of alcohol and/or other drugs. I accept also that he is prone to anger and some violence when he is drunk or under the influence of alcohol and drugs. To that extent I accept that his prospects of rehabilitation can only be regarded as guarded unless he is able to remain free of alcohol and other drugs. ...

I accept that he is genuinely sorry for having committed this offence and has, in his evidence, indicated some genuine remorse and contrition.

35. We note that Mr  Temo  has completed various programs and training courses while in prison. He successfully completed the ‘Getting Smart’ AOD (alcohol and other drug) program in March 2010 and, according to the Immigration Report dated 15 September 2010, prepared by the Probation and Parole Service, his response to the program was deemed “satisfactory”. He also undertook and completed “the more intense Ngara Nura AOD program” in October 2010. Further, Mr  Temo  attended several sessions of a ‘Personal Effectiveness Program’ and successfully completed the ‘Hey Dad’ parenting program in January 2010.
36. The Immigration Report dated 21 June 2012 states that (in the period since being in custody from 29 January 2012) Mr  Temo  had also self-referred to alcohol and other drug (AOD) programs, but at that time had not been placed in a program. This later report noted that Mr  Temo  reported that he was suffering from depression in late 2011 and early 2012 and he commenced anti-depressant medication on being remanded in custody in late January 2012. The Report states that Mr  Temo  had had two sessions with a custodial psychologist, but would benefit from further psychological assistance which was not available in custody. Mr  Temo  had also indicated his willingness to be referred to AOD and violence prevention programs when released on parole.
37. With regard to depression, Mr  Temo  told the Tribunal that in late 2011, everything was going wrong and he felt useless. After being remanded in custody, he commenced a course of medication – Avensis – which he took for six months. He is no longer taking medication and believes he is better, and that if he becomes depressed in the future, he knows what to do.
38. Mr  Temo  has also undertaken training programs while in custody. The Immigration Report dated 15 September 2010 states that he attended classes in the Certificate 1 Adult Education and Employment Training Course and TAFE studies in Horticulture/Agriculture, completed tickets in Asbestos Removal and Occupational Health and Safety, and obtained a First Aid certificate. In addition, the Immigration Report dated 21 June 2012 states that Mr  Temo  completed the Pathways to Employment Education and Training (PEET) TAFE program in June 2011.
39. Mr  Temo  incurred six institutional charges while in prison between 2003 and 2006 but has incurred no charges since. The Immigration Report dated 15 September 2010 notes that Mr  Temo  had been subject to urinalysis testing on 13 occasions and had returned negative results to all substances tested. This Report states that Mr  Temo  is a compliant prisoner who does not cause management problems. Documents produced under summons by the NSW Department of Corrective Services indicate that while in custody he was polite and a willing worker.
40. Mr  Temo  told the Tribunal that he realises that he must tackle his alcohol problem and that he must not drink at all. He has contacted the Haymarket Foundation in East Sydney, which provides an alcohol and other drugs counselling service and runs a Centre with accommodation for those with complex problems including alcohol. Mr  Temo  is hoping for a place on the Foundation’s counselling program if he is released into the community and he phones every Thursday to enquire about availability. Mr  Temo  said he recognises that he has a problem and needs help. He realises that if he drinks alcohol, there is a risk that he could commit another violent crime.
41. Mr  Temo  gave evidence about his relationship with his daughter, who is aged five, and his partner. The Tribunal is satisfied from the evidence that these are close relationships. We note that the Immigration Report dated 21 June 2012 states: “The offender appeared quite distressed when he considered that he may be separated from his child”. Mr  Temo  told us that he wants to be a proper father to his daughter and wants to develop closer family bonds. He also said he believes that his partner can help him stay out of trouble in the future. She will help him with a referral to appropriate counselling. His daughter is the main reason he wants to change – he wants to spend more time with her, see her grow up and start school so that they can build a closer relationship in the future.
42. The Tribunal notes Mr  Temo ’s partner’s evidence that she is studying for a double diploma in counselling and community service. She told the Tribunal that she will work with Mr  Temo  to prevent him committing further offences. They will live together as a family and she will accompany him when he goes out socially. They have had a relationship for about six years and he has never been violent around her or his family, with whom she has also lived for some years. She believes Mr  Temo  is a good man at heart and that he has grown a lot and is very different from five years ago.
43. The Tribunal notes NSW Department of Corrective Services records which indicate that Mr  Temo ’s parents, his partner and their daughter, his sister and his partner’s sisters were all regular visitors while Mr  Temo  was in prison in recent years. Written statements from family members and their evidence at the hearing indicate that while, like most families, it has its ups and downs, it is nevertheless a close family.
44. With regard to employment, Mr  Temo  told the Tribunal that he has spoken with his cousin who works for a labour hire and recruitment service. His cousin says Mr  Temo  could work as a member of the same labouring team doing construction work. Mr  Temo  said he worked with his cousin in early 2011 for about three months doing demolition work. Mr  Temo  said he would like to do a four month scaffolding course. He has phoned about doing this. Enrolments for the next course are in November with the course starting in February 2013. Mr  Temo ’s father also told the Tribunal that he would help try and get his son a job.
45. The Tribunal’s assessment is that Mr  Temo  only poses a risk to the Australian community if he is under the influence of alcohol. The evidence indicates that he has now developed greater insight into his problem with alcohol and is committed to addressing it. He recognises the need for help in doing so, both professional help and help from his partner. In the Tribunal’s opinion, Mr  Temo ’s prospects for rehabilitation and for his reintegration in the community are reasonably good. We accept, nevertheless, that given Mr  Temo ’s history of violent crime, this first primary consideration favours the cancellation of his visa.

STRENGTH, DURATION AND NATURE OF THE PERSON’S TIES TO AUSTRLIA

46. With regard to the strength, duration, and nature of Mr  Temo ’s ties to Australia, paragraph 9.2(1) states that decision-makers must have regard to:
    1. How long the person has resided in Australia, including whether the person arrived as a young child, nothing that:
       1. Less weight should be given where the person began offending soon after arriving in Australia; and
       2. More weight should be given to time the person has spent contributing positively to the Australian community.
    2. The strength, duration and nature of any family, social and/or employment links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
47. Mr  Temo  first arrived in Australia with his family in 1987 when he was aged four. Apart from a holiday in Fiji of about four weeks in December 1998/January 1999, when he was aged 15, he has resided in Australia since. Mr  Temo ’s immediate family – his parents, two brothers and one sister – together with extended family members, all live in Sydney, as does his partner and their daughter. It appears that all Mr  Temo ’s family members and his partner and their daughter are Australian citizens. Mr  Temo ’s parents, his sister, his cousin, his partner and his partner’s two sisters have all provided statements in support of Mr  Temo  attesting to their strong family ties.
48. Thus, the Tribunal is satisfied that Mr  Temo  has strong ties to the Australian community of long duration and that this consideration favours his visa not being cancelled.

BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

49. This consideration only applies where the child is, or will be, under 18 years old at the time the decision to cancel Mr  Temo ’s visa is expected to be made. Where there is more than one child under 18 years old, paragraph 9.3(3) states, “If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ”.
50. Direction 55 sets out a number of factors that must be considered (where relevant) in ascertaining the best interests of the child. These include: the nature and duration of the relationship between the child and the person; the extent to which the person is likely to play a positive parental role in the future, taking into account the length of time remaining until the child turns 18, and any Court orders relating to parental access and care arrangements; the impact of the person’s prior conduct and any likely future conduct, and whether that has, or will have, a negative impact on the child; the likely effect that any separation from the person would have on the child; whether there are other persons who already fulfil a parental role in relation to the child; any known views of the child; evidence that the person has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and evidence that the child has suffered or experienced any physical or emotional trauma arising from the person’s conduct.
51. Mr  Temo  has a daughter, aged five, who was born approximately six weeks after he was detained in May 2007. Mr  Temo  has only lived in the same household as his daughter during the period he was in the community between 24 January 2011 and 29 January 2012. However, documents produced under summons from the NSW Department of Corrective Services include a list of visitors for Mr  Temo  while he was in prison. This list shows regular visits by Mr  Temo ’s partner and their daughter during his imprisonment. This accords with Mr  Temo ’s partner’s evidence of their visits.
52. Mr  Temo  spoke of his close relationship with his daughter, of her visits to him in custody, and of his strong feelings for her. He said he wants to be a good father to her. Mr  Temo ’s partner wrote of his relationship with their daughter in her statement filed with the Tribunal on 22 October 2012:

14. [Our daughter] and Jiko have a good relationship. When [our daughter] sees Jiko in prison on weekends, based on my observations, she is happy to see him. On other occasions [our daughter] tells me that she misses Jiko. If Jiko is deported to Fiji, [our daughter] would be left without a father who she loves.

15. I have mentioned to [our daughter] that Jiko may have to go back to Fiji. This made her very upset. I have had a number of reports from her day care that she has been upset. She wants her father to be in Australia with her.

53. Mr  Temo ’s partner’s evidence is that if Mr  Temo  is released into the community, they will immediately commence living together as a family.
54. The Tribunal is satisfied that the best interests of Mr  Temo ’s daughter favour his visa not being cancelled.

OTHER CONSIDERATIONS

55. As noted above, paragraph 10 of Direction 55 states that ‘other’ considerations, where relevant, must be taken into account but primary considerations should generally be given greater weight. Relevant ‘other’ considerations in Mr  Temo ’s case specifically referred to in the Direction are the effect on his immediate family in Australia; any impact on any business interests he may have in Australia; the impact of a decision not to cancel a visa on the Australian community, including victims of the person’s criminal behaviour and their family, where that information is available and the person has been afforded procedural fairness; and the extent of any impediments the person may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account the person’s age and health, any substantial language or cultural barriers, and any social, medical and/or economic support available to them in that country.
56. All Mr  Temo ’s immediate family are Australian citizens living in Australia. The evidence of his parents, his sister and his partner indicates that they are a close knit family and would be very upset if he were deported to Fiji. His parents gave evidence that they have few remaining relatives in Fiji. Mr  Temo ’s mother goes to Fiji occasionally to visit her mother, who is very elderly, most recently in August 2011. His mother has travelled to Fiji four times in the past 25 years. His father only has distant cousins in Fiji, and has travelled to Fiji three times over the past 25 years. Their immediate and most of their extended family are in Australia. They said they have little money and would find it difficult to visit their son in Fiji if he has to return there.
57. In her statement, Mr  Temo ’s partner said all her family are in Australia and she has no connections with Fiji. She doubts that she would move to Fiji to be with Mr  Temo  and thinks it is in their daughter’s interests to grow up in Australia. Moreover, she does not have much money which would enable her to visit him there.
58. Mr  Temo  is aged 29 and generally in good health, although as noted above, he has recently suffered from depression. The official language of Fiji is English so he should not have significant communication problems there and, because of his background, should be able to establish himself in the community over time. However, the evidence indicates that he would be without family support and the Tribunal is satisfied that if Mr  Temo  is returned to Fiji he will face significant hardship.
59. The Tribunal is satisfied that these other considerations favour Mr  Temo ’s visa not being cancelled.

CONCLUSION

60. Paragraph 6.3(4) of Direction 55 (see paragraph 11, above) provides that a higher level of tolerance of criminal misconduct may be afforded to a non-citizen who has lived in Australia for most of their life. However, paragraph 7(1) requires the decision-maker to determine whether the risk of future harm is unacceptable. This requires a balancing exercise, involving a consideration of the likelihood of future harm and the extent to which, if at all, any risk should be tolerated by the community.
61. The Tribunal has conducted such a balancing exercise. In this case, it has been difficult. We recognise the need to protect the Australian community from the sort of violent conduct of which Mr  Temo  has been guilty in the past and over an extended period. However, the evidence indicates that Mr  Temo  poses a risk to the community only when under the influence of alcohol and, as stated above, we are satisfied that his prospects for rehabilitation and re-integration into the Australian community are reasonably good. He has already taken positive steps towards his rehabilitation while in prison, has a good institutional record, and is actively seeking professional help to address his alcohol problems if he is released into the community. In pursuing further rehabilitation, he will have the support of his partner and family with whom, we accept, he has a close relationship.
62. In terms of other primary considerations, Mr  Temo  has strong ties to the Australian community, having lived here with his family continuously since the age of four, and he has a young daughter to whom he is close and towards whom, the evidence suggests, he wants to be a good and loving father. These other primary considerations and the ‘other’ considerations, which we recognise have less weight in this case, favour his visa not being cancelled.
63. The Tribunal has therefore concluded that the decision should favour Mr  Temo ’s visa not being cancelled. Thus, the Minister’s discretion should not be exercised to cancel Mr  Temo ’s visa.
64. However, Mr  Temo  will, of course, be aware that any future misconduct is now very likely to lead to his visa being cancelled with the consequence that he will be returned to Fiji.

DECISION

65. The decision under review is set aside and a decision substituted that the Minister’s discretion under s 501(2) of the Migration Act 1958 should not be exercised to cancel Mr  Temo ’s visa.

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

Associate

Dated 12 November 2012