12 October 2012

Conditional Residence: the Rohipa Decision

An indicator of effectiveness as a state is that a government is able to exclude people from residence within that state's borders.

In Ropiha and Minister for Immigration and Citizenship [2012] AATA 689 the Administrative Appeals Tribunal has set aside a decision by the Minister for Immigration and Citizenship under s 501 of the Migration Act 1958 (Cth) to cancel a New Zealand man's visa on trhe basis that the man failed the character test because of his criminal history.

The Tribunal substituted a decision that John Ropiha’s visa not be cancelled, on the basis that Ropiha has "reformed" and has substantial links in the Australian community.

The character test provision in s 501(6) indicates that
a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or
(aa) the person has been convicted of an offence that was committed: (i) while the person was in immigration detention; or (ii) during an escape by the person from immigration detention; or (iii) after the person escaped from immigration detention but before the person was taken into immigration detention again; or
(ab) the person has been convicted of an offence against section 197A [ie escaping from immigration detention]; or
(b) the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or
(c) having regard to either or both of the following: (i) the person's past and present criminal conduct; (ii) the person's past and present general conduct; the person is not of good character; or
(d) in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would: (i) engage in criminal conduct in Australia; or (ii) harass, molest, intimidate or stalk another person in Australia; or (iii) vilify a segment of the Australian community; or (iv) incite discord in the Australian community or in a segment of that community; or (v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.
Otherwise, the person passes the character test .
In relation to that subsection 'Substantial criminal record' is defined in s 501(7) -
 For the purposes of the character test, a person has a substantial criminal record if:
(a) the person has been sentenced to death; or
(b) the person has been sentenced to imprisonment for life; or
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
(d) the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or
(e) the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution.
The Tribunal in Rohipa states that
John Ropiha is a 31 year old man who migrated to Australia with his family in 1981, when he was 5 months old. He is a citizen of New Zealand. Apart from several short trips to New Zealand before 1986 and six months living with his grandmother when he was 14 years old, Mr Ropiha has resided in Australia since this time. Mr Ropiha was granted a Class TY Subclass 444 Special Category (Temporary) visa on 16 March 1996, which allows the holder to remain in Australia indefinitely while they remain a New Zealand citizen. His father and mother live in Australia and he has five siblings, who were born in Australia and are Australian citizens. He has no family or other ties in New Zealand and has eight children, all of whom are under 18 years old, who were born and reside in Australia.
Mr Ropiha has a history of criminal conduct commencing when he was 13 years old. His juvenile offences included larceny, shoplifting, two charges of resisting an officer when he was 15 years old and assault and common assault when he was 17 and 18 years old. He was cautioned, fined and given non-custodial sentences for these various offences until April 2000, when he was sentenced to 8 months’ imprisonment for break and enter, and resisting arrest. Thereafter, Mr Ropiha was convicted of numerous offences and served approximately seven years in prison until 1 July 2012, when he was released from Wellington Correctional Centre. Mr Ropiha engaged in a pattern of reoffending while on parole and spent most of his years from the age of about 23 until 30 years old in prison. These years were punctuated by brief periods living in the community, during which time he formed a relationship with his current partner. On 5 July 2012, a delegate of the Minister for Immigration and Citizenship (the Minister) made a decision to cancel Mr Ropiha’s visa. Mr Ropiha seeks a review of that decision. After his release from prison, Mr Ropiha lived in the community for two weeks before being taken into immigration detention at Villawood, where he has resided since mid-July 2012.
The Minister has a discretion to cancel a visa if Mr Ropiha does not satisfy the character test set out in the Migration Act 1958 (the Act). Mr Ropiha does not satisfy this character test because of his criminal history and the issue for determination is how this discretion should be exercised in the circumstances of this case. If Mr Ropiha’s visa is cancelled, he will be removed to New Zealand.
It concluded that -
The fact that Mr Ropiha was so young when he arrived in Australia, has lived in Australia for most of his life and has established strong personal and familial ties in Australia is compelling. The likely adverse affect on his children is also a material consideration that counts against cancellation. In contrast, the seriousness of the offences previously committed, the fact they were repeated and frequent despite Department warnings and the fact there is a real and significant risk of recidivism, are strongly countervailing considerations. In balancing these competing considerations, I must have regard to the principles set out in cl 6.3 of Direction no. 55.
As noted in cl 6.3, remaining in Australia is a privilege conferred on non-citizens in the expectation they are, have been and will be law abiding. Mr Ropiha has abused this privilege and has spent a significant part of the past 17 years either committing criminal offences or in custody. His ability to make a positive contribution to the Australian community has been restricted by his criminal offending and substance abuse. He has had little opportunity to work in gainful employment in Australia, although there is evidence Mr Ropiha has contributed positively in his role as a father for significant periods despite his drug taking. Unfortunately this contribution has been overshadowed by his repeated offending and consequential imprisonment from 2004. While his family and partner earnestly attest to the change in Mr Ropiha’s attitude, his positive influence and potential, all concede this has been a recent development.
The difficult task in this case is therefore to balance protection of the Australian community and the risk of harm if Mr Ropiha reoffends against Mr Ropiha’s ties to the Australian community, the best interests of his minor children in Australia and the effect his removal is likely to have on his family, who are either Australian citizens or permanent residents.
The Minister referred to the recent decision of Deputy President Hack in Re Wipa and Minister for Immigration and Citizenship [2012] AATA 125 in which the Tribunal affirmed the decision of the Minister to cancel Mr Wipa’s visa. This case was said to be similar to Mr Ropiha’s case.
Mr Wipa arrived in Australia when he was four years old, lived most of his life in Australia, had a de facto relationship for several years and had two young children who were born in Australia. Mr Wipa had a history of criminal offending commencing when he was 13 years old. Like Mr Ropiha, Mr Wipa had a history of substance abuse and a difficult upbringing but was “reformed” by the time of the hearing.
Deputy President Hack found that Mr Wipa’s offences were “characterised by a high level of personal violence directed to persons who were essentially strangers to him”. Mr Wipa had ongoing anger management issues which were displayed during the hearing and Deputy President Hack express concern about whether these issues would negatively impact on his children in the future. While Mr Wipa had spent his formative years in Australia, Deputy President Hack found he had not become part of the Australian community and had no apparent links to the wider community or his family.
Mr Ropiha’s case can be distinguished from the facts of this case in a number of important respects. Mr Ropiha crimes were generally not violent in nature and in the cases where he was convicted of assault and affray, his crimes were directed to people he knew, not strangers, although there was one incident of assault on an officer in execution of duty. There is no evidence that Mr Ropiha has directed his anger at his children and the preponderance of evidence is to the effect that Mr Ropiha was a good father for significant periods. Mr Ropiha has spent many years in custody but has also established meaningful relationships with his family, children and partner.
According to the principles in cl 6.3, there is a relationship between the risk of harm and the level of tolerance that the Australian community may afford non-citizens. Mr Ropiha’s criminal record is serious but does not involve conduct that is so serious that any risk of similar conduct in the future would be unacceptable. His offences did not involve vulnerable members of the community and the majority of his crimes did not involve violence and were at the lower end of the scale of seriousness. His crimes were opportunistic, unplanned and largely unsuccessful. Most sentences were 12 months or less. While the risk of harm if Mr Ropiha re-offends is serious and this factor should be given considerable weight, in my view those considerations that weigh in his favour combine to tip the balance against cancellation.
Mr Ropiha has become a part of the Australian community and while his level of engagement and connection has been limited by his substance abuse, criminal activity and his time in custody, there is evidence he has built meaningful relationships with his family, children and partner, who are either Australian citizens or permanent residents, over the past 30 years. There is little evidence that Mr Ropiha has ties with the wider community or that he has positively contributed to the wider community or indeed his family for much of the past 17 years. However, he has made some contribution and, importantly, there is evidence that cancellation would adversely affect his children. Together, these factors are significant enough to militate against cancellation to such an extent that the Australian community would be likely to afford a higher level of tolerance to the possibility of Mr Ropiha re-offending and the resulting risk of harm.
The case is finely balanced because much depends on Mr Ropiha’s abstinence from substance abuse in the future. As noted in the cl 6.3 principles, the right of a non-citizen to remain in Australia is a privilege conferred in the expectation that the non-citizen is law abiding and, relevantly to Mr Ropiha’s case, will remain so. If Mr Ropiha continues with this abuse and repeats his criminal offending in the same manner as in the past 17 years, his contribution to the Australian community will be further diminished and the community will have less tolerance for his criminal offending. Given the previous warnings and the decision of the Minister to cancel Mr Ropiha’s visa on this occasion, if Mr Ropiha re-offends, it is likely the relevant considerations under Direction no.55 will weigh in favour of cancellation. However, at this stage, I find they are balanced in his favour.
I therefore conclude that the correct and preferable decision is that the decision should be set aside and a decision substituted that the Applicant’s visa not be cancelled.