respondent. The Tribunal affirmed the delegate's decision to cancel Mr Muliaga's visa under s 501(2) of the Migration Act 1958, concluding that the protection of the Australian community required cancellation...
Key principles
The Tribunal found that the applicant, Mr Muliaga, did not pass the character test because he had a substantial criminal record (multiple sentences of imprisonment including a...
In applying Direction No. 41 the Tribunal treated the protection of the Australian community from serious criminal or other harmful conduct (especially violent offences such as...
The Tribunal held that evidence of ongoing institutional misconduct, prior breaches of judicial orders, incomplete or absent participation in violence-specific rehabilitation,...
Issues before the court
Whether the applicant passes the character test under s 501 of the Migration Act 1958, in particular whether he has a substantial criminal record.
How Direction No. 41's primary and other considerations should be balanced in deciding whether to exercise the discretion to cancel a visa.
Whether the applicant's ties to Australia (minor on arrival, length of residence, family support) or the best interests of his children outweigh the...
Plain English Summary
The Tribunal reviewed the Minister's cancellation under s 501 after finding the applicant had a substantial criminal record (including a six year prison sentence). Applying Direction No. 41, the Tribunal concluded the protection of the Australian community from serious violent offending and a significant risk of repetition outweighed the applicant's strong family ties in Australia and the limited evidence about the children's need for paternal access. The Tribunal affirmed the cancellation.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
1,726 words · generated 19/06/2026
What happened
This is an Administrative Appeals Tribunal review of a delegate's decision to cancel the visa of Mr Ian Muliaga under s 501(2) of the Migration Act 1958 (Cth). Mr Muliaga is a New Zealand citizen of Samoan background who arrived in Australia in July 1995 at age 11 and remained here for about 15 years. He has an extensive criminal history with juvenile and adult convictions, including multiple robbery offences and a conviction for 'robbery with an offensive weapon' for which he was sentenced to six years' imprisonment (non-parole three years and nine months) (see Background and sentencing remarks summarised in the Tribunal reasons).
What evidentiary matters indicate a risk of repetition under Direction No. 41 (parole history, institutional behaviour, participation in...
Cited legislation
No linked legislation citations have been extracted yet.
The Department warned him by letter in May 2005 that further convictions might trigger cancellation. The Department later commenced cancellation procedures in 2009 and a delegate cancelled his visa on 19 October 2010. Mr Muliaga sought review in the Tribunal. The Tribunal (Deputy President R P Handley) heard evidence, including family letters and oral evidence, considered an Immigration Report from Probation and Parole recording institutional misconduct and limited rehabilitation program engagement, and reviewed sentencing remarks. After applying Direction No. 41, the Tribunal concluded that the protection of the Australian community required cancellation and therefore affirmed the delegate's decision (decision and reasons dated 21 December 2010).
Why the court decided this way
The Tribunal's reasoning follows the statutory framework and Direction No. 41. The legal starting point is that s 501(2) allows cancellation where the Minister reasonably suspects the person does not pass the character test and the person cannot satisfy the Minister that they do. The statutory definition of 'substantial criminal record' in s 501(7) covers sentences of imprisonment of 12 months or more or multiple terms totalling two years or more. The Tribunal found that Mr Muliaga had three sentences of 12 months or more, including the six year term, and therefore did not pass the character test (threshold legal finding).
That finding made cancellation "open" to the Minister, but the exercise of the discretion had to follow Direction No. 41. Direction No. 41 requires consideration of enumerated primary considerations and a suite of other considerations. The Tribunal analysed the case against the primary considerations most relevant here: (1) protection of the Australian community from serious criminal or other harmful conduct (notably crimes involving violence), (2) whether the person was a minor when they began living in Australia, (3) the length of ordinary residence prior to offending, and (4) the best interests of any children.
Protection of the community was the decisive factor. The Tribunal emphasised the seriousness of the offences (multiple robberies; final offence involved an offensive weapon and a substantial custodial sentence) and relied upon sentencing remarks and the applicant's pattern of breaching judicial orders as indicia of seriousness and poor prospects of supervision (the Direction flags the sentence imposed, number and nature of offences, period between offences and judicial comments as relevant). The Tribunal also gave weight to material indicating a real risk of repetition: an Immigration Report from Probation and Parole that recorded 17 institutional misconduct charges while in custody, refusal of parole at the end of the non-parole period, and lack of completion of violence-specific treatment programs. Although Mr Muliaga expressed remorse and stated intentions to undertake rehabilitation, the Tribunal found the objective record (breaches of orders, institutional misconduct, limited program completion) insufficient to give confidence he would not re-offend. On these grounds, community protection favoured cancellation.
By contrast, the Tribunal accepted that Mr Muliaga arrived as a minor and had lived in Australia for many years, with strong immediate family ties and community support. Direction No. 41 treats these as favourable factors. The Tribunal nevertheless concluded that these factors were outweighed by the community protection imperative in the circumstances of repeated serious violent offending and demonstrated risk indicators. The best interests of the children were recognised as a primary consideration. Mr Muliaga had three children in Australia (twins aged six and a daughter aged four with cerebral palsy). However, the Tribunal noted the paucity of evidence about the current parental relationship (limited contact for some time, extended periods of imprisonment) and concluded the child's interests, while generally favouring parental presence, were not sufficiently weighty to outweigh the risk to community safety.
The Tribunal therefore exercised its discretion against the applicant and affirmed the delegate's cancellation decision.
Before and after state of the law
Before this decision, the legal structure applicable here is well established: s 501 of the Migration Act gives the Minister power to cancel on character grounds; Direction No. 41 provides the decision-making framework for balancing community protection against countervailing personal and family circumstances. The Tribunal applied those pre-existing provisions and guidance.
This decision does not change the law. It is a fact-based application of longstanding principles: (a) a substantial criminal record under s 501(7) establishes the statutory threshold, (b) Direction No. 41's framework governs the exercise of discretion, and (c) the protection of the Australian community may, in some cases, outweigh strong family ties or being minor on arrival. The decision reinforces established practice rather than creating novel doctrine: where the offending is serious, repeated, and accompanied by indicators of risk of repetition (breaches of orders, institutional misconduct, refusal of parole), community protection can prevail (see Tribunal reasoning and conclusion).
Practitioners should view this decision as an example of how the Tribunal will weigh objective indicators of risk and recidivism history heavily against favourable personal circumstances. It illustrates that evidence of remorse and support from community members, while relevant, will not necessarily be decisive absent demonstrable rehabilitation and compliance with corrective orders.
Key passages with plain-English translation
"Thus, he does not pass the character test." (Tribunal's legal finding), Plain English: Under the Migration Act test, the applicant's criminal record meets the statutory definition of 'substantial criminal record', so he fails the character test and cancellation is legally permissible.
"There can be no question that Mr Muliaga has committed a number of very serious offences ... culminating in his being sentenced to six years' imprisonment.", Plain English: The Tribunal summarises the seriousness of the offences. Serious violent offending and lengthy custody are strong indicators for cancelling a visa.
The Tribunal's account of the Immigration Report noting 17 institutional misconduct charges and poor engagement with violence-specific programs, Plain English: While the applicant had done some programs, the official record shows repeated disciplinary problems and no clear completion of therapy for violent behaviour, which increases the risk he may re-offend.
"The protection of the Australian community requires that the discretion ... should not be exercised in Mr Muliaga's favour and that his visa should be cancelled.", Plain English: After balancing all factors, the Tribunal chose public safety over the applicant's personal/family ties and refused to set aside the cancellation.
What fact patterns trigger this precedent
This decision is directly instructive where:
The non-citizen has a 'substantial criminal record' within s 501(7), including multiple custodial sentences or a single substantial custodial sentence; and
The offending involves violence or the threat of violence (e.g. robbery, armed robbery) and is repeated over a period of years; and
There is evidence of an ongoing risk of repetition: breaches of parole or other judicial orders, institutional misconduct while in custody, refusal of parole or lack of demonstrable rehabilitation completion; and
The person has family ties in Australia or arrived as a minor, but the record shows a relatively short interval between arrival and onset of offending, or the evidence of parental attachment is weak (lengthy separations due to imprisonment).
Where these factors combine, this decision supports cancellation even if there are significant family ties, community offers of support, or expressions of remorse and intent to rehabilitate.
How later courts have treated it
This Decision is an AAT decision and thus persuasive precedent within AAT and tribunal practice. It applies Direction No. 41 consistently with other administrative decisions. The Tribunal cited Re Puafisi [2009] AATA 689 (see reasons), treating that authority as relevant to assessing the weight of the length-of-residence factor. The decision reinforces the established approach that community protection can outweigh ties arising from formative years in Australia. Practitioners should therefore anticipate that tribunals and administrative decision-makers will follow this balancing approach where the facts are similar.
(As this is an AAT decision, superior courts remain the authoritative source for points of law. This decision is a useful demonstration of factual application of Direction No. 41 rather than an innovation in legal principle.)
Still-open questions
Degree of evidence required on the best interests of children: The Tribunal noted the general presumption that a child's best interests favour remaining with parents, but it found the evidence here insufficiently detailed to give that factor decisive weight. Unresolved is the precise quantum and quality of evidence about parent-child relationship and likely effect of separation required to outweigh a serious risk to community protection in similar cases.
Rehabilitation evidence and timing: The applicant pointed to participation in some programs and a place on a waiting list for a violence program. The Tribunal placed weight on completion and ongoing engagement. The decision leaves open how much demonstrable completion of targeted violence/anger-management programs, or demonstrable sustained behaviour change post-release, would be sufficient to tip the balance in marginal cases.
Interaction between parole decisions and s 501 assessment: The Tribunal noted the parole authority refused parole and stood over later review. While the Tribunal treated parole refusal as a relevant indicator, it did not set out a fixed rule about deference to parole decisions. The precise degree of weight to be accorded to parole refusals remains context-dependent.
Weight to give community offers of support: The Tribunal accepted offers of community mentoring and family support but found them insufficient without rehabilitation evidence. How substantial and formalised such support must be (e.g. programmatic commitments from community organisations) to materially alter the balancing remains an open factual question.
Conclusion: Muliaga is a clear example of Direction No. 41 being applied to prioritise community protection where the offending is violent, repeated and accompanied by objective indicators of ongoing risk despite strong Australian ties. For practitioners, the decision underlines the importance of assembling robust evidence of rehabilitation, demonstrable parental ties (where relied on), and detailed material about the likely effects of removal on children and family to counterbalance the protection imperative.
Judgment (29 paragraphs)
[1]
Muliaga and Minister for Immigration and Citizenship [2010] AATA 1034 (21 December 2010)
IMMIGRATION - visa cancellation - character test - Direction 41 - substantial criminal record - primary considerations - protection of the Australian community - seriousness and nature of the conduct - risk that the conduct may be repeated - whether a minor when person began living in Australia - length of time ordinarily resident in Australia prior to engaging in criminal activity - best interests of the child - other considerations - family ties, the nature and extent of any relationships - person's age and health - links to the country to which they would be removed - hardship likely to be experienced by the person or their immediate family members - level of education - whether the person has been formally advised in the past of conduct that brought the person within deportation provisions
Re Puafisi and Minister for Immigration and Citizenship[2009] AATA 689
[7]
Direction [no. 41] - Visa Refusal and Cancellation under section 501
[8]
Mr Muliaga 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 Mr Muliaga's visa on the ground that he does not pass the character test.
[9]
Mr Muliaga was born in New Zealand in January 1984 and is a New Zealand citizen of Samoan background. He first arrived in Australia on 13 July 1995, aged 11, with his mother and younger brother and was granted a Class TY subclass 444 Special Category (Temporary) visa, which permits residence in Australia indefinitely, and he has since remained in Australia.
Mr Muliaga's criminal history include offences committed while a juvenile: 'robbery in company' in November 2000, of which he was convicted in February 2001 and sentenced to a 12-month control order; 'steal from the person' and 'assault with intent to rob whilst armed' in January 2001, and 'robbery in company' in October 2001, of which he was convicted and sentenced to a control order of 15 months.
Offences committed as an adult include: 'robbery in company' committed on 30 April 2002, of which he was convicted on 1 November 2002 and sentenced to two years' imprisonment with a non-parole period of one year; 'steal from the person' and 'resist police officer in the execution of his/her duty' of which he was convicted on 19 November 2004 and sentenced to 12 months' (non-parole nine months) and six months' imprisonment respectively; 'behave in an offensive manner' of which he was convicted on 21 June 2006 and placed on a six-month good behaviour bond; 'destroy or damage property', 'contravene apprehended violence order' and 'common assault' of which he was convicted on 26 October 2006 and placed on further good behaviour bonds; and 'robbery with an offensive weapon', committed on 23 November 2006, of which he was convicted on 20 November 2007 and sentenced to six years' imprisonment (non-parole three years and nine months), a sentence confirmed on appeal to the NSW Court of Criminal Appeal on 28 October 2008.
Mr Muliaga was the victim of a serious assault in 2003 as a result of which he was in a coma for three days and which Acting Judge Christie, of the District Court of NSW, in sentencing Mr Muliaga on 20 November 2007, accepted had resulted in "a form of brain injury". It also appears that he has had a problem with alcohol and other drugs.
An Immigration Report prepared for the Department of Immigration and Citizenship by the Probation and Parole Service, Wellington District Office, on 19 August 2010, recommended that he not be released on parole. The report noted that Mr Muliaga had been the subject of 17 disciplinary charges while in custody, including 'fail urine test', 'intimidation' and 'stealing'. The report states: "Records indicated an ongoing history of aggressive and abusive actions towards officers".
[10]
Section 501(2) of the Migration Act1958 (Cth) (the 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) 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.
Mr Muliaga has been sentenced to three terms of imprisonment of 12 months or more, including his most recent sentence of six years' imprisonment. Thus, he does not pass the character test. It was therefore open to the Minister to cancel Mr Muliaga's visa. In exercising this discretion, the decision-maker must apply Direction [no. 41] - Visa Refusal and Cancellation under section 501 of the Act (Direction No 41). Direction No 41 contains a number of 'primary' and 'other' considerations to which the decision-maker must have regard when considering whether to exercise the discretion to refuse or cancel a visa.
The primaryconsiderations in Direction No 41 are set out in paragraph 10(1):
The primary considerations
[11]
These considerations are elaborated on by a range of factors to which regard must be had. There are also a number of 'other' considerations that, where relevant, must be taken into account but, generally, in accordance with Direction No 41 paragraph 11(2), they should be given less weight than the 'primary' considerations. Those 'other' considerations are discussed below.
[12]
The 'primary' considerations relevant in Mr Muliaga's case are the protection of the Australian community, the fact that he was a minor when he began living in Australia, the length of time that he was ordinarily resident in Australia prior to engaging in criminal activity, and the best interests of his children. These considerations are addressed below.
[13]
Direction No 41 identifies two factors relevant to this consideration: the seriousness and nature of the relevant conduct, and the risk that the conduct may be repeated.
[14]
With regard to the seriousness of Mr Muliaga's conduct, the Tribunal notes that paragraph 10.1.1(1) states:
[15]
Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community.
[16]
Among the examples of offences and conduct that are considered serious listed in paragraph 10.1.1(2) are robbery. Mr Muliaga has four convictions for robbery.
[17]
Paragraph 10.1.1(3) states that "The sentence imposed for an offence is considered indicative of the seriousness of the offender's conduct against the community", and regard must be had to the number and nature of offences, the period between offences and the time elapsed since the most recent offence. Among the factors to be considered pursuant to paragraph 10.1.1(4) are any judicial comments made about the person, parole assessments and any relevant mitigating factors.
The Tribunal has been provided with a copy of the transcript of Judge Robison's remarks on sentencing Mr Muliaga for the offence of 'robbery in company' on 1 November 2002. The Judge noted that Mr Muliaga was 18 years old at that time and "It is unfortunate that he has a serious criminal history at such a young age." The offence was committed in breach of two probation orders and a control order relating to previous convictions. Mr Muliaga was considered "unlikely to benefit from supervision from the Probation and Parole Service due to resistance to abide by the requirements of that service", and "unsuitable for a community service and periodic detention orders [sic] due to his lack of motivation to comply with any court imposed orders". The Judge said: "All of this, frankly is very depressing, when one considers his youth and whatever prospects there may be for rehabilitation in the future."
The Tribunal has also been provided with a copy of the transcript of Acting Judge Christie's remarks on sentencing Mr Muliaga for the offence of 'robbery armed with an offensive weapon' on 20 November 2007. The Judge noted Mr Muliaga's history of breaching judicial orders, including a six-month good behaviour bond imposed in respect of his conviction for offensive behaviour in June 2006, and further good behaviour bonds imposed in October 2006. The pre-sentence report provided to the Judge "indicates that Mr Muliaga's response to supervision was generally poor with him failing to attend interviews with Probation and Parole and failing to attend group programs." He was arrested and charged with 'robbery armed with an offensive weapon' on 24 November 2006.
Acting Judge Christie said Mr Muliaga's history was "a matter of grave concern to the court". He noted that Mr Muliaga had drunk vodka before committing the offence. He had not himself perpetrated any of the actual violence although "he was present and the common purpose of those events is perfectly clear."
[18]
With regard to the risk that the conduct may be repeated, paragraph 10.1.2 of Direction No 41 requires that consideration be given to Mr Muliaga's previous general conduct and total criminal history and, in particular, to any recent history of convictions, evidence of rehabilitation and evidence as to whether he has breached any judicial orders including bail and parole orders.
The Probation and Parole Service 'Immigration Report' for Mr Muliaga shows that he has been the subject of 17 institutional misconduct charges while in custody including 'fail urine test', 'intimidation' and 'stealing'. The Report states: "Records indicated an ongoing history of aggressive and abusive actions towards officers which have resulted in cautions." With regard to rehabilitation programs, the Report states:
[19]
Records indicated that the inmate has completed the Alcohol and other Drug relapse prevention program SMART (Self Management and Recovery Training) and the twelve session program Getting SMART. Case notes indicated that the inmate was advised to attend Narcotics Anonymous but there are no records of him attending either Narcotics or Alcoholics Anonymous. The inmate disputes this stating that he attending [sic] Narcotics Anonymous when at Parklea Correctional Centre.
[20]
The Report notes that after an initial contact with 'Psychological Services', Mr Muliaga "failed to attend a follow up appointment and there have been no record [sic] of any ongoing or meaningful psychological interventions". Mr Muliaga informed staff that he had completed an assessment for the Violent Offenders Therapeutic Program (VOTP) but apparently staff had no record of this. However, I note Mr Muliaga's evidence at the hearing, confirmed by a letter dated 7 December 2010 from the Parklea Correctional Centre, that he has been found eligible for the VOTP "Medium-High intensity programme" and his name has been added to the waiting list for that program. Mr Muliaga said he had tried to get into the VOTP program in 2009.
The Immigration Report also records that Mr Muliaga has completed various basic education courses while at Wellington Correctional Centre and has maintained employment. Mr Muliaga told me that he works in the 'Industries' section at Wellington and is currently packing dog food.
The Report concluded that Mr Muliaga's imprisonment "has been punctuated by abusive and aggressive actions towards Corrections employees and a failure to abide by correctional centre routine." Concern was expressed that he had not yet completed any violence-related program. Parole was not recommended until Mr Muliaga had demonstrated an ability to abide by correctional centre routine and had completed an anger management program.
Mr Muliaga told me that he wants to do another rehabilitation program and intends to "go drug and alcohol free" on his release from prison, although he recognises that this will be hard. He said that after more than four years in prison he is a changed man. He has learned a lot from other inmates in prison. I note the evidence of Mr Muliaga's witnesses who said they have noticed a change in his attitude lately and that he is more mature. Mr Muliaga said he wants to become involved in church activities - going to church, attending camps and bible study. Mr Muliaga intends "to be there for my family", to look after his kids - "the most precious things in my life" - and to help people in the community. He also said he is very sorry for the harm caused to the victims of the offences he committed and is "truly remorseful" for what he has done.
I note that Mr Muliaga has a history of breaching judicial orders - control orders, parole conditions and good behaviour bonds - referred to in the sentencing remarks of Judge Robison and Acting Judge Christie quoted above.
[21]
WHETHER A MINOR ON BEGINNING TO LIVE IN AUSTRALIA
[22]
The second primary consideration relevant in Mr Muliaga's case relates to his being a minor when he first commenced residence in Australia. Direction No 41, paragraph 10.2(1) states:
[23]
If the person was a minor when they began living in Australia and spent their formative years in Australia, thereby increasing the likelihood of establishment of greater ties and linkages to the Australian community, this is to be given favourable consideration.
[24]
Mr Muliaga arrived with his mother and brother and began living in Australia in July 1995, when he was aged 11 years and 6 months. He has not returned to New Zealand since and has now lived in Australia for 15 years. I accept his evidence and that of the family members who were witnesses at the hearing that all his close family are in Australia. Their evidence indicates strong family ties and a good level of support for him in the Samoan community in the area where his mother lives.
Thus, I am satisfied that Mr Muliaga has close ties to the Australian community as a result of his having lived here for more than 15 years and because of the presence of his immediate family here. This primary consideration therefore weighs against cancellation of Mr Muliaga's visa.
[25]
The third primary consideration relevant in Mr Muliaga's case - the length of time he has been ordinarily resident in Australia - is further explained in paragraph 10.3(1) of Direction No 41. This states that "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".
Mr Muliaga first offended as a juvenile in November 2000 after he had been resident in Australia for nearly five and a half years, and he was charged with a series of offences in the period following, culminating in the conviction for robbery with an offensive weapon on 20 November 2007 for which he was sentenced to six years' imprisonment. However, I also note Mr Muliaga's evidence at the hearing that he was expelled from Macquarie Boys High School in year 8 after an incident in which he hit the Principal, and that he was also expelled from Liverpool Boys High School in year 9 after being involved in a fight.
Because of the relatively short period before Mr Muliaga began 'getting into trouble' after arriving in Australia, this consideration should not be treated as a consideration in his favour. Rather it should be regarded as a neutral factor: Re Puafisi and Minister for Immigration and Citizenship[2009] AATA 689, at [39] to [41].
[26]
Direction No 41, paragraph 10.4.1(4) states: "Under Australian law, it is generally presumed that a child's best interests will be served if the child remains with its parents".
The Direction sets out a number of factors to be considered in ascertaining the best interests of the child. These include, relevantly, the nature of the relationship between the child and the person; the duration of the relationship including the number and length of any separations and the reasons for those separations; the extent to which the person is likely to play a full parental role in relation to the child; the child's age, citizenship and relationships with others in a parental role; the likely effect that any separation from the person would have on the child; the impact of the person's prior conduct on the child; any known wishes expressed by the child; and the circumstances of the probable country of future residence and any language and cultural barriers there for the child.
Mr Muliaga has three children in Australia - twins aged six and a daughter aged four who suffers from cerebral palsy. Mr Muliaga told me that he and the children's mother lived together for about two years in Campbelltown and the children and their mother used to visit him regularly in prison. However, he has not seen them for the last 16 months and does not know where they are living or how to contact them. He misses his children very much and had hoped to be able to renew his relationship with the children's mother on his release from prison, her having told him that she would be "there for him" on his release. Mr Muliaga said about 16 months ago, his brother went to see the children at the children's mother's house. She had a boyfriend there at the time and Mr Muliaga's brother and the boyfriend were involved "in an incident". After this, the children's mother left the area with the children and has not told Mr Muliaga's family where they have gone.
I note that Mr Muliaga's youngest daughter was born approximately 11 weeks before he was arrested on 24 November 2006. He has been in prison since and, given the circumstances and the lack of any contact for the past 16 months, it seems unlikely that a strong parental bond will have been established. With regard to the twins, I note Mr Muliaga was sentenced to 12 months' imprisonment with a non-parole period of nine months a short time after their birth in 2004. Mr Muliaga has spent nearly five of their six years in prison. Apart from Mr Muliaga's evidence of how precious his children are to him, I have no other evidence as to his relationship with his children and it is therefore difficult to know how the children now perceive him, what the nature of their relationship is, and what effect his separation from them has had and what effect it might have in the future.
[27]
As noted above, Direction No 41 states that 'other' considerations, where relevant, must be taken into account but, generally, should be given less weight than 'primary' considerations. Relevant 'other' considerations in Mr Muliaga's case specifically referred to in the Direction are his family ties and the nature and extent of his relationships with those in the Australian community, his age, his health, his links with New Zealand, the hardship that may be experienced by both Mr Muliaga and his immediate family members in Australia, his level of education, and whether he has been formally warned in the past that his visa might be cancelled because of his criminal conduct.
The oral evidence at the hearing and the letters of support from Mr Muliaga's family members clearly shows that he has strong family ties in Australia. His parents have been separated since Ms Paala moved to Australia with her children, and Mr Muliaga said he has had no recent contact with his father. His father came to visit in 2006 and, according to Ms Paala, stayed about two weeks in her house. She said she was against his staying at her house but her sons persuaded her to let him stay. Mr Muliaga said his father's visit left him sad and disappointed and there has been no contact since. The 2006 visit is the only contact Mr Muliaga has had with his father since they left New Zealand in 1995. Ms Paala said her ex-husband has now remarried and has another family. She doubted that he would provide any support for their son if he has to return to New Zealand. Mr Muliaga said he does not know where his father lives or how to contact him.
Ms Paala said she came to Australia with her sons with a view to the future. All her immediate family are in Australia and she has no contact with her ex-husband or his family. She said she loves her son very much and because of her disability - she has difficulty walking - she needs his help. Ms Paala's sister, who also lives in Sydney, said it would be very hard for Ms Paala, as well as the rest of the family, if Mr Muliaga has to return to New Zealand.
Mr Muliaga's younger brother Lee said he has always had a close relationship with his older brother. Lee looks up to his older brother and, in the absence of their father, Mr Muliaga has been a father figure for him. It would be very hard if his brother has to go back to New Zealand. Lee lives with his mother in Campbelltown and is her carer. Lee's partner is the daughter of Mrs Ngati, a near neighbour who also gave evidence at the hearing. Lee has one child, aged two, with Mrs Ngati's daughter. Mrs Ngati said Ms Paala needs Mr Muliaga to help care for her and to be a father figure for his younger brother.
[28]
I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President
[29]
Respondent representative: Mr J Pinder, DLA Phillips Fox
AI Analysis
Outcomerespondent
Disposition:
The Tribunal affirmed the delegate's decision to cancel Mr Muliaga's visa under s 501(2) of the Migration Act 1958, concluding that the protection of the Australian community required cancellation despite the applicant's ties to Australia and family circumstances.
Mr Muliaga has three children from a former de facto relationship of four years: twins aged 6 and a daughter aged 4 who suffers from cerebral palsy.
On 24 May 2005, the Department of Immigration and Citizenship (the Department) wrote to Mr Muliaga warning him that any further criminal convictions could result in consideration being given to the cancellation of his visa. Mr Muliaga acknowledged receipt of this letter on 25 May 2005.
By letter dated 14 July 2009, the Department notified Mr Muliaga of its intention to consider cancellation of his visa and inviting him to respond. (Mr Muliaga acknowledged receipt of this on 22 September 2009.) On 28 June 2010, the Department sent Mr Muliaga a 'Personal Details Form' which it asked him to complete and return. The Department received the completed form on 8 July 2010. On 9 August 2010, Mr Muliaga was interviewed by a departmental officer by telephone and he acknowledged receipt of the record of this interview on 23 August 2010. On 24 August 2010, Mr Muliaga was invited to make further submissions in relation to additional information received by the Department but no further submissions were received.
On 19 October 2010, a delegate of the Minister notified Mr Muliaga of the cancellation of his visa and Mr Muliaga acknowledged receipt of this on 23 October 2010. On 29 October 2010, he applied to the Tribunal for a review of this decision.
The Tribunal was provided with the following letters of support for Mr Muliaga from family members and friends, all of whom gave evidence at the hearing:
a letter from his mother, Malia Paala, dated 24 November 2010,
a letter from his brother, Lee Muliaga, dated 24 November 2010,
a letter from his aunty, Ogeoleafa Anaki, dated 18 November 2010,
a letter from a family friend, Tia Ngati, dated 24 November 2010, and
a letter from the Minister of the Samoan Church of the Nazarene, Talilotu Ofo, dated 25 November 2010.
(1) In deciding whether to refuse to grant a person a visa or cancel a person's visa, the following (the
primary considerations
) are to be considered:
(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).
There can be no question that Mr Muliaga has committed a number of very serious offences over a period of about four and a half years culminating in his being sentenced to six years' imprisonment with a non-parole period of three years and nine months for the armed robbery committed on 23 November 2006. I note that parole was refused at the end of the non-parole period on 23 August 2010, and that on 3 December 2010, the State Parole Authority stood over a review of the decision not to make a parole order until 28 January 2011. An 'Immigration Report' dated 19 August 2010 from the Probation and Parole Service is discussed below.
In conclusion, I accept that Mr Muliaga has good intentions and is almost certainly more mature than previously. I also accept that he has support from the Samoan community in the area where his mother lives of which his family is part. Mrs Ofo, the Minister for the local Samoan Church, said she would work closely with Mr Muliaga if he is released into the Australian community and would act as a mentor helping him become involved in education and in community activities.
However, Mr Muliaga's criminal record, his past history of breaching judicial orders, his behaviour in prison and his not having undertaken a suitable rehabilitation program to address his behavioural and anger management problems - albeit that his not having undertaken such a program may not be for his want of trying - do not give me confidence that he will be able to control his behaviour if released into the community notwithstanding the support which has been offered. There remains a significant risk that this may result in further serious offences.
Thus, the first primary consideration, that of the protection of the Australian community, favours the cancellation of his visa.
I accept that a child's best interests will generally be served by the child remaining with its parents. While what little evidence there is suggests the children may not be able to live with both parents, I accept that their best interests may be served by their at least having access to their father, which will be more difficult if he has to return to New Zealand. However, the lack of evidence makes any specific finding impossible.
Mrs Ofo, the Minister for the Samoan Church for the area, said she knows Mr Muliaga's family well. Mr Muliaga used to come home with her sons and he stayed with her family for sometime. Mrs Ofo also knows Ms Paala well, both as a member of her congregation and as a friend. Mr Muliaga's family would be very sad if he has to return to New Zealand.
I accept that that if Mr Muliaga is returned to New Zealand this will cause both him and his immediate family significant hardship by reason of their separation. It will be more difficult to maintain their relationship if he is in New Zealand although there is no reason for them not being able to maintain contact by telephone and email and to visit him from time to time in New Zealand.
I also note that Mr Muliaga has had no contact with his extended family in New Zealand. He told me that he does not intend to try and re-establish contact with his father although he would try and contact his aunties and uncles - Mr Muliaga was born in Wellington, New Zealand - who might be able to "put him up" and help him find work.
Mr Muliaga is relatively young - 26 years of age - and, apparently, strong and healthy. I have no evidence as to whether the assault suffered by Mr Muliaga in 2003 has caused any lasting brain damage. His family spoke of his talent with music. Mr Muliaga said after being expelled from Liverpool Boys High School, he went to Mt Druitt High School, completed year 10 and obtained his School Certificate. After leaving school, he attended Liverpool TAFE to study music, literacy and numeracy, but dropped out after three months. He subsequently had two short-term jobs: packing boxes and loading trucks etc for three months and filling car batteries with acid for six months.
Finally, I note that Mr Muliaga received a formal warning from the Department by letter dated 24 May 2005, when he was aged 21.
Weighing up the relevant 'primary considerations', I am satisfied Mr Muliaga's release into the Australian community at this time would pose a significant risk of his being involved in further serious offences and the protection of the Australian community therefore favours the cancellation of his visa. With regard to the second primary consideration, the fact that he began living in Australia as a minor favours his visa not being cancelled, although this consideration is outweighed by the need to protect the Australian community. The third primary consideration, having regard to the length of time between his becoming resident in Australia and his first misconduct, is, as I have said, a neutral factor. While there is very little evidence as to the fourth relevant consideration, the best interests of his children, I accept that in general terms it would be in the best interests of his children to have access to their father. Nevertheless, in the circumstances of this case, I do not consider this a weighty consideration when viewed in the light of the need to protect the Australian community against the risk of further serious crime.
With regard to the 'other considerations', I accept that Mr Muliaga's return to New Zealand would cause hardship to both him and his immediate family in Australia, particularly to his mother and brother, although, in the case of his mother, she will still have the support of and care from her younger son. I also note that if Mr Muliaga has to return to New Zealand, he has no immediate means of support there. He may, however, be able to obtain some help from his extended family. Lastly, I have noted the formal warning Mr Muliaga received from the Department on 24 May 2005.
Having had regard to both the primary and other considerations, my overall conclusion is that the protection of the Australian community requires that the discretion in s 501(2) of the Act should not be exercised in Mr Muliaga's favour and that his visa should be cancelled.