Migration Act 1958 (Cth) ss 499, 501

CTNR and Minister for Immigration and Citizenship [2010] AATA 297

Re Oliver and Minister for Immigration and Citizenship [2010] AATA 1049

1. Jason Gordon Kanara is a citizen of New Zealand. He arrived in Australia in October 1994, when he was 23, on a Special Category Visa by virtue of which, as a New Zealand citizen, he was allowed to remain in Australia, subject to the provisions of the Migration Act 1958 (the Act). Other than returning to New Zealand for ten days in 1999, and for eight days in 2002, he has lived here since.
2. Mr Kanara came to Australia with his wife, Michelle May Kanara, and their three year old daughter, Kahutianui. A second daughter, Santana, was born in January 1995.
3. Mr Kanara started work the day after he arrived in Australia. Other than a period of about six months, he was continuously employed in casual and full time jobs in fencing, tree-lopping, warehousing and asphalting, until late 2006, when he lost his driver's licence for traffic offences. He could not continue in his job as an asphalt driver without his licence. He has not been employed since.
4. After losing his job, Mr Kanara started using and selling amphetamines. When police raided his home in September 2007, they found amphetamines and paraphernalia associated with dealing, a large sum of money and a weapon. Mr Kanara was on bail on charges arising out of that raid when a second police raid, in February 2008, found further amphetamines, cannabis, paraphernalia associated with dealing, money and a handgun.
5. At the time of both raids, Mr Kanara was subject to an 18 month probation order and a suspended prison sentence for convictions for drugs and weapons offences.
6. In February 2009, Mr Kanara was sentenced to concurrent terms of imprisonment for a total of 20 offences arising out of the raids and the earlier offences for which he had been given suspended sentences. The longest term was seven years and seven months. He became eligible for parole on 2 January 2011. He is currently in Villawood detention centre pending the outcome of these proceedings.
7. On 21 December 2010, the Minister for Immigration and Citizenship (the Minister) notified Mr Kanara that his visa had been cancelled because of his substantial criminal record. Mr Kanara seeks review of that decision.

1. By s 501(2) of the Migration Act 1958 (the Act), the Minister may cancel a person's visa if:
   • (a) the Minister reasonably suspects that the person does not pass the character test in s 501(6)(a) of the Act; and
   • (b) the person does not satisfy the Minister that she or he passes the character test.
2. A person is taken not to pass the character test if he or she has a substantial criminal record. A person has a substantial criminal record if he or she has been sentenced to a term of 12 months imprisonment or more, or has been sentenced to two or more terms of imprisonment totalling two years or more: ss 501(6)(a) and (7).
3. It is common ground that, by reason of several prison sentences of 12 months or more imposed on Mr Kanara, he does not pass the character test, and the discretion to cancel his visa is thereby enlivened.
4. The discretion in s 501(2) must be exercised in accordance with Direction No. 41 - Visa refusal and cancellation (the Direction) made by the Minister on 3 June 2009. The Direction is made pursuant to s 499 of the Act and is binding on the Tribunal: ss 499(1) and (2a).

5. The Direction requires that due consideration be given to the objectives of the Act to regulate, in the national interest, the coming into and presence in Australia of non-citizens and, in this regard, to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious misconduct by non-citizens: cls 5.1(2) and 10.1.

6. In reaching a decision whether to cancel a visa, a decision-maker needs to consider the nature of any harm the person concerned may cause to the Australian community, and the risk of that harm occurring: cls 5.2 and 10.1.
7. To the extent that they are relevant to the particular case, a decision-maker must take into account four primary considerations:
   1. the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
   2. whether the person was a minor when they began living in Australia;
   3. the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct;
   4. any relevant international law obligations, including but not limited to, the best interests of the child, as described in the United Nations Convention on the Rights of the Child.
8. Other considerations, although not primary, may be relevant and, if so, must be considered. They include the matters set out in cl 11 (3). Generally, however, they should be given less weight than that given to primary considerations: cl 11(1) and (2). The other considerations relevant in this case are:
   1. family ties, the nature and extent of any relationships;
   2. any links to the country to which the person would be removed;
   3. hardship likely to be experienced by the person or their immediate family members lawfully resident in Australia;
   4. whether the person has been formally advised in the past by an officer of the Department of Immigration and Citizenship about conduct that brought the person within the deportation provisions of the Act or the character provision of the Act.

1. A record produced by the New Zealand police on 5 March 2009, which is not in dispute, shows that Mr Kanara incurred the following convictions there:

December 1987: two charges of unlawfully taking a motor cycle - placed under social welfare supervision

April 1988: unlawfully taking a motor vehicle - convicted and placed on what appears to be a good behaviour bond for 1 year

July 1988: being a minor found in a bar - fined $25

March 1989: possessing an offensive weapon, injury with intent to injury, and unlawfully taking a motor vehicle - sentenced to concurrent terms of imprisonment for periods between 3 months and 1 year for

December 1991: unlicensed driving and excess alcohol - sentenced to 3 months non-residential periodic detention and disqualified from driving for 6 months

February 1993: wounding with intent to cause grievous bodily harm - imprisoned for concurrent terms of 11 months and 1 year

1. Records produced by the Queensland Police Service, which are not in dispute, show that Mr Kanara has incurred the following convictions in Australia:

October 1997: disorderly conduct offences and assault or obstruct a police officer in performance of his duty - $75 fine; no conviction recorded

December 2003: possess anything used in the commission of a crime - $250 fine; no conviction recorded

June 2006: possess schedule 1 dangerous drugs exceeding sch 3 but less than sch 4; possess utensils or pipes that had been used; possess property suspected of having been used in connection with the commission of a drug offence; possess tainted property - fines totalling $1320; no convictions recorded

December 2006: receive stolen property (or property fraudulently obtained) firearm or ammunition; produce dangerous drugs; possess dangerous drugs; possess utensils or pipes that had been used; receive stolen property (or property fraudulently obtained); unlawful possess of weapons; offence in relation to unauthorised and prohibited explosives - one penalty imposed: $1200 fine, 12 months probation

January 2007: Contravene direction or requirement - $250 fine; no conviction recorded

January 2007: Possess tainted property; receive stolen property (or property fraudulently obtained); possess shortened forearm; unlawful possess arms or ammunition, clothing, equipment of a member; possess dangerous drugs; possess utensils or pipes that had been used -sentenced 2 months and 4 months imprisonment, suspended for 18 months

1. In February 2009, Mr Kanara was convicted in the Queensland Supreme Court of offences arising out of the raids on his home in 2007 and 2008, and the suspended sentences imposed in January 2007 were activated. The record shows:

Trafficking in dangerous drugs: imprisonment 7 years and 7 months

Two counts of possess dangerous drugs sch 1: imprisonment 4 years on each charge

2 counts of receive or possess property obtained from trafficking or supplying: imprisonment 2 years on each charge

3 counts of possess dangerous drugs: imprisonment 1 year on each charge

2 counts of unlawful supply of dangerous weapons: imprisonment 1 year on each charge

1. The Minister contends, and Mr Kanara does not dispute, that he also committed numerous driving offences between December 1996 and April 2008, resulting in many fines and loss of his licence. No details of these offences are before the Tribunal.

The protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence

1. Clause 10.1.1 of the Direction sets out examples of offences and conduct that are considered serious. They include the production, possession, importation or trafficking of trafficable or commercial quantities of illicit drugs. As a general proposition, crimes of violence or the threat of violence are of special concern to the welfare and safety of the Australian community.
2. The sentence imposed for an offence is considered indicative of the seriousness of the person's conduct against the community. Due regard must be had to the number and nature of offences; the period between offences; and the time elapsed since the most recent offence. Other relevant factors include evidence from independent and authoritative sources, such as judicial comments and professional psychological reports, and any mitigating factors advanced by the person: cl 10.1.1 (3) and (4).
3. Mr Kanara concedes that the drug offences for which he was most recently imprisoned are serious. Without denying the seriousness of his earlier convictions for drug offences, he submits that the fact that he was fined, but no conviction recorded indicates, that those offences were less serious.
4. I accept that submission up to a point but it can only go so far. Mr Kanara's record shows a pattern of increasingly serious drug offending over the period 2006 to 2009.
5. Mr Kanara gave evidence before the Tribunal that he had been using methamphetamine in increasing amounts since 2005 and, by the time he was arrested, he was using every day.
6. Sentencing him in February 2009 in the Supreme Court of Queensland, Justice Byrne referred to Mr Kanara's "substantial criminal history, which includes prior drug offences". He noted that Mr Kanara was subject to an 18-month probation order imposed in December 2006, and to a wholly suspended prison sentence with an operational period of 18 months imposed in January 2007. In respect of his most serious offence, carrying on business of trafficking in methylamphetamine, Justice Byrne noted that Mr Kanara was on bail, on probation, and subject to a suspended sentence at the time.
7. The sentencing remarks show that police conducted raids on Mr Kanara's home in September 2007 and February 2008. In the first, they found amounts of crystallised and powdered amphetamines as well as paraphernalia associated with drug dealing, a substantial amount of money and a weapon. Mr Kanara admitted possession of the drugs and associated items to the police, and said he had been selling drugs since losing his job in 2006; he had 20 to 30 regular customers to whom he would sell amphetamines in various sizes, and he usually made $500 to $1000 a week, and had been supplying drugs on a regular basis for two years. Justice Byrne described this as "a relatively significant operation".
8. The sentencing remarks further show that, in the second raid, police found more amphetamines and cannabis, as well as implements and things acquired through Mr Kanara's trafficking business, money totalling more than $20,000, a large hand gun and paraphernalia associated with dealing.
9. Justice Byrne described methylamphetamine as "a scourge in our community" and noted that, as someone himself addicted, Mr Kanara would have appreciated the potential risk that his operation posed to the community. The sentence of seven years and seven months imposed for trafficking reflects how seriously the Court regarded this particular offence.
10. In his favour, Justice Byrne noted that Mr Kanara had cooperated with police in making admissions and "more significantly" had pleaded guilty early, and a more lenient sentence was appropriate.
11. For Mr Kanara, it is contended that a further mitigating factor is that, although crimes of violence are of special concern, the sentencing remarks show that Justice Byrne asked the prosecution whether a serious violent offence declaration was being sought but one was not; further, that Mr Kanara's wife gave evidence that there had never been violence in their relationship.
12. I do not think that any weight should be given to this part of the sentencing remarks. There is no evidence before the Tribunal about the status or effect of such a declaration. Further, while I accept that Mr Kanara has not had a conviction for a violent offence since 1993, judging by the concurrent terms of 11 months and 1 year imposed at the time, that offence must have been fairly serious. Further, although there is no indication of offences using the various weapons found in his possession during the 2007 and 2008 raids, he nevertheless had them. All things considered, I do not think these particular remarks count positively in his favour.
13. As the Tribunal has noted previously (see, for example, CTNR and Minister for Immigration and Citizenship [2010] AATA 297), methamphetamine causes real and serious harm to the Australian community. To profit from its sale is to live off that harm, with little or no regard for others. There is little that can be said by way of mitigating Mr Kanara's offences, particularly as he resumed selling after being charged, undeterred by being on bail.
14. The Minister contends that the Tribunal should take into account as mitigating factors that Mr Kanara had drug problems and was unemployed at the time of his most recent offences. I agree, but the mitigating effect of either is limited. In particular, there is no evidence that Mr Kanara was looking for work after he lost his job in 2006. To his credit, he did not claim social security benefits, but he did not need to because he had chosen to make his living selling amphetamines.

1. When assessing the risk that conduct may be repeated, a person's general conduct and total criminal history are relevant. Particularly relevant are a recent history of convictions, evidence of rehabilitation and the prospect of further rehabilitation, and evidence of breach of judicial orders: cl 10.1.2.
2. The Minister contends that Mr Kanara's history of offending shows a pattern of increasing seriousness, culminating in his convictions in 2009. Further, that he has not been deterred by previous punishments and his most recent offences were committed in breach of parole, probation, and while on suspended sentences for similar matters, and even while on bail.
3. For Mr Kanara it is conceded that there is always a risk of re-offending but that factors in his case make that risk less than in might otherwise be. First, it is said that he has been free of drugs since his arrest in February 2008, and he has undertaken a number of courses while in gaol that reduce the risk of re-offending.
4. It is true that there is no evidence that Mr Kanara has used drugs in gaol, and prison records show that he has returned clean urine results. A memorandum from the Offender Management Team at Borallon Correctional Centre, where he served his sentence, shows that his behaviour in gaol has always been "appropriate, his interaction with other offenders is acceptable and he is always polite and courteous towards staff." He has not been involved in any breaches of discipline. He started work in the salt packaging industry shortly after arriving and has received positive work reports. He is noted to have completed courses in word processing, first aid, personal wellbeing and work preparation.
5. Mr Kanara gave evidence that he now realises what he has done to his family and that all he wants to do now is get out of gaol and look after them, and he has no intention of using drugs again. However, there is no evidence that he has a plan to ensure he does not start using again, or to minimise the risk of that happening. There is no evidence before the Tribunal about what the personal wellbeing course involved, and it does not appear to deal with drug addictions.
6. Mr Kanara says he wants to work when he is released and I accept that. He has apparently obtained employment in the past without much trouble. However, he has no present plan for employment. Mr Kanara says he has had offers of employment but there is no evidence before the Tribunal to that effect. Given that he started selling drugs when he was unemployed, and in that time was using increasing amounts of drugs, the risk that he will do so again if he does not have employment is real.
7. I accept the submission for Mr Kanara that his admissions to the police when they raided his home should count in his favour. Further, that his early plea of guilty weighs in his favour as evidence of an acceptance of responsibility and contrition (see: Re Oliver and Minister for Immigration and Citizenship [2010] AATA 1049).
8. Nevertheless, Mr Kanara has a history of increasingly serious offending over many years and his most serious offences were in breach of bail, probation and suspended sentences. Especially without any clear plan to obtain employment or undertake rehabilitation, the risk that he will commit further serious offences is real.
9. In a petition to the Minister, 36 family members and friends says that Mr Kanara is remorseful and they will support him with employment strategies, positive role modelling, intervention to promote lawful actions, social support and counselling. I accept their good intentions but there is nothing to show how they will provide the support and counselling they are offering or who would provide them.
10. Clause 5.2(4) provides that, in some circumstances it may be appropriate for the Australian community to accept more risk where the person concerned has, in effect, become part of the Australia community owing to their having spent their formative years, or a major portion of their life, in Australia. For Mr Kanara it is submitted that he has been here since he was 23 - he is now 39 - and has spent a major portion of his life here. However, I do not think that he has spent such a major part of his life here that any special consideration should be given to this factor.
11. Taking into account all of the evidence about the seriousness of Mr Kanara's offending and the risk that he will re-offend, I find this consideration weighs strongly in favour of cancelling his visa.

Whether the person was a minor when they began living in Australia

1. Mr Kanara was 23 when he first arrived in Australia. Nothing about this consideration weighs for or against cancellation.

The length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct

1. Clause 10.3 of the Direction provides that more favourable consideration is to be given the longer a person has ordinarily been resident in Australia before engaging in criminal activity or activity that bears negatively on their character. By way of example, it is stated, "a period of more than 10 years residence prior to a person engaging in criminal activity or activity which bears negatively on the person's character would be an important consideration."
2. Mr Kanara had been in Australia for approximately three years when he was convicted in October 1997 of a disorderly conduct offence and assaulting and/or obstructing a police office in the performance of his duty. He was fined $75 and no conviction was recorded. He gave evidence before the Tribunal that these charges arose out of an incident outside a club when he and others were out on a bucks' night. The sentence imposed suggests that it was not regarded as serious by the Court.
3. Mr Kanara's next offence occurred in February 2003. Police records show that, in December 2003, he was fined $250, without a conviction being recorded, for Possessing Anything Used in Commission of a Crime. There is no evidence before the Tribunal about the details of this offence but the sentence imposed suggests that it was not regarded as particularly serious by the Court.
4. It was submitted for Mr Kanara that clause 10.3 of the Direction should be read as requiring the decision-maker to have regard only to those offences which bear negatively on a person's character because they are of sufficient seriousness as to warrant removal. Read that way, it was submitted, Mr Kanara did not engage in serious misconduct for some 12 years after he arrived in Australia.
5. I do not agree. The Note to clause 10.3 refers to a period of more than 10 years residence prior to a person engaging in criminal activity or activity which bears negatively on the person's character. "Criminal activity" is not qualified.
6. Nothing about this consideration can be said to weigh positively in Mr Kanara's favour. Having said that, his first offence, three years after arriving in Australia, was relatively minor, and his second offence occurred around nine years after he arrived. I do not think this consideration weighs heavily against him.

Any relevant international law obligations, including but not limited to, the best interests of the child, as described in the Convention on the Rights of the Child

1. The factors to be taken into account when considering the best interests of a child affected by a decision are set out in clause 10.4.1(5). They include the child's age, the nature of the relationship between the child and the person concerned, the likely effect of separation, the time that she child has spent in Australia, the child's wishes, and whether the child is likely to accompany the person overseas if removed.
2. There are two children whose interests would be affected by Mr Kanara's removal from Australia. The first is his 16-year old daughter, Santana. The other is Exodus, the six-month old son of his elder daughter, Kahu.
3. Santana is in year 11 at high school. She gave evidence before the Tribunal. By all accounts, she was doing well at school until her father went to gaol. She had just started at high school and her grades dropped, and she started cutting herself. She has now moved school and is doing well again. She wants to finish school and become a dancer.
4. Santana describes her relationship with her father as close and it was clear, from her evidence at the hearing, that she finds the thought of him leaving extremely distressing. She conceded it was possible that she could fit into a new school in New Zealand but says she was born here and all her friends are here, and she wants to finish school in Australia.
5. The picture is complicated by the fact that it is not entirely clear what Mr Kanara's wife, Michelle, plans to do if he is returned to New Zealand. In his evidence he said he believed, and hoped, that she would go with him, but he could not be sure. Michelle Kanara gave evidence that she would "definitely" go back to New Zealand "at some stage" but she also said that she wasn't 100% sure and that she would have to make sure her daughters were all right first. She said she knew that Kahu would not leave Australia but that Santana might go to New Zealand, although she did not want to force her.
6. Whereas, in a letter to the Minister, Santana said she and her mother would go to New Zealand if her father was deported, she now says she would not go; she would stay here and, if her mother returns to New Zealand, she would be cared for by her uncle and aunt and her older sister. Letters from her uncle and aunt confirming that this is so are before the Tribunal. Neither her aunt or uncle gave oral evidence but I have no reason to doubt their offer of care. Kahu gave evidence and agreed that she would be responsible for Santana if their parents go to New Zealand.
7. I accept that it is in Santana's best interests to be close to her father and that her interests would be adversely affected if he is returned to New Zealand. However, her education will not necessarily be interrupted. Her mother may stay here for a time and, if she leaves, Santana would be in the care of her sister and uncle and aunt. I accept she would find it very difficult to stay here without her parents but it is not clear that would in fact happen. I accept that she would find it very difficult to move to New Zealand when she has spent all her life here. However, I do not think this factor outweighs the protection of the Australian community.
8. Kahu is a single mother. She has suffered from depression since her father went into gaol and it was evident that she, too, finds the prospect of him returning to New Zealand extremely distressing. The father of her son lives in New Zealand. She conceded that there would be no impediment to her moving to New Zealand, but she does not intend doing so.
9. I accept that it would be in Exodus' best interests to be near to his grandparents but children quite commonly live in different cities or countries from grandparents and this is not a factor that I place any real weight on.

Family ties, the nature and extent of any relationships

1. It is clear from the evidence, and from seeing them together at the Tribunal hearing, that Mr Kanara is close to his wife and daughters. His wife visits him in gaol every week, and his daughters every two or three weeks. He speaks to them at least once a day by telephone.
2. Depending on what Michelle Kanara decides, Mr Kanara could be separated from her for some time. It appears, from her evidence, likely that she would join him before long, if not immediately but any separation would be difficult, as would separation from his younger daughter.
3. If Mr Kanara is returned to New Zealand, he would be separated from his elder daughter, Kahu. I accept that this would cause them both a great deal of sadness. I accept that he would also feel the loss of his grandson. If deported, he cannot expect ever to return to Australia but she would be free to travel to New Zealand as she did in 2007 when she visited her grandparents.
4. Mr Kanara's has many friends and a large extended family in Australia. Thirty-six family and friends have signed a petition to the Minister asking that he be allowed to stay.
5. The Minister contends that this consideration weighs slightly in Mr Kanara's favour. I think it weighs more strongly than that but it is outweighed by the interests of the Australian community in protection.

Any links to the country to which the person would be removed

1. Clause 11 (3)(d) provides that, where a person has no significant familial ties or support in the country to which they would be removed, this may be considered in their favour. There is a deal of overlap between this consideration and consideration of any hardship the person might suffer (see below).
2. Mr Kanara submits that he has no family support network, no employment or employment opportunities, and no accommodation in New Zealand and would face hardship as a result.
3. Mr Kanara's parents and three sisters live in New Zealand. He says he has limited contact with them but I note that Kahu gave evidence that she stayed with both sets of grandparents when she visited there in 2007, and Santana gave evidence she has been back once to stay with her Nana and Poppy. I accept that Mr Kanara may have little, if any, contact with his sisters. However, his wife's mother and step-father are there, and her brother and two sisters. She says she is in contact with her mother but less so her sisters. Her mother has written in support of Mr Kanara's application and says she has kept in touch with him throughout the past years.
4. Mr Kanara has returned to New Zealand twice since coming to Australia, albeit briefly. Australia has been his home for 16 years. He has retained connections to New Zealand but they would have inevitably weakened over time. I do not find this consideration weighs strongly either for or against cancellation.

Hardship likely to be experienced by the person or their immediate family members lawfully resident in Australia

1. I accept it would cause hardship for Mr Kanara and his immediate family if he is removed. Some of this is has already been referred to. He would likely have some difficulty finding employment and accommodation, at least for a time. He would be dependent on his family who may not be in a position to offer a lot of help.
2. The Minister contends that Mr Kanara and any of his immediate family who accompany him would be entitled to social security and health benefits in New Zealand but there is no doubt they would find life hard.
3. The Minister concedes that this consideration weighs in Mr Kanara's favour and I agree.

Whether the person has been formally advised in the past by an officer of the Department of Immigration and Citizenship about conduct that brought the person within the deportation provisions of the Act or the character provision of the Act.

1. Mr Kanara has not been formally advised in the past that he is at risk of removal from Australia on account of his criminal conduct.
2. It is not known whether Mr Kanara disclosed his convictions when he first arrived in Australia. There are no relevant documents before the Tribunal, and he was not asked about this in evidence. However, immigration documents show that, when he returned from a brief visit to New Zealand in 2002, he disclosed only that he had a drink driving conviction ten years previously, for which he was fined. Mr Kanara says he was returning from visiting his father who had suffered a stroke, and he was under stress and grieving. He conceded in evidence that he knew that his record would not be viewed favourably by the Australian authorities.
3. The Minister submits that the Tribunal should take into account that Mr Kanara was aware when arrived in 2002 that his criminal record might affect him but that he nevertheless offended repeatedly. However, the Direction is quite specific about the nature of a relevant warning. While it might not reflect well on Mr Kanara that he was not forthright about his past when he arrived in 2002, it is one thing to realise that convictions would not be regarded favourably and another to have a formal warning conveyed in the manner set out in the Direction.
4. I find the consideration weights slightly more in Mr Kanara's favour than against.

1. Taking into account all of the matters that I am required to consider, I am not satisfied that the discretion not to cancel Mr Kanara's visa should be exercised in his favour. He has a long history of offending in New Zealand and Australia. His decision to resume dealing in amphetamines while on bail, probation and a suspended sentence, weighs very heavily against him. The seriousness of his offending and the risk that he will re-offend meant that he poses an unacceptable risk of harm to the Australian community which outweighs other considerations including the best interests of his daughter and grandson.

Signed: ..............................[sgd].................................................

Solicitor for the Applicant Mr L Giampietro, Legal and Company

Solicitor for the Respondent: Ms J Cumming, Clayton Utz