FEDERAL COURT OF AUSTRALIA

Tuakeu v Minister for Immigration and Border Protection [2016] FCA 362

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent’s costs as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    By an application lodged on 17 November 2015, Mr Tuakeu sought an extension of time to appeal a decision of the Minister made on 15 October 2014 to cancel Mr Tuakeu’s Class TY Subclass 444 Special Category (Temporary) visa under s 501(2) of the Migration Act 1958 (Cth). Pursuant to s 477A(1) of the Migration Act, an application for review of the Minister’s decision must be filed within 35 days of the date of the Minister’s decision, that is, by 19 November 2014. Accordingly, Mr Tuakeu’s application was approximately one year out of time.

2    Mr Tuakeu appeared at the hearing of the application on 11 March 2016 by video link from Wellington Correctional Centre (“Wellington CC”); he was self-represented.

3    Mr Tuakeu did not dispute that he has a “substantial criminal record" and did not pass the character test in s 501(6)(a). In issue was whether there was a sufficient explanation for the delay in seeking review of the Minister’s decision and the merit of Mr Tuakeu’s claim that the Minister fell into legal error in the exercise of his discretion under s 501(2) of the Migration Act.

4    Mr Tuakeu submitted that, although he is technically a non-citizen, he does not see himself that way as he has grown up in Australia and was a member of the Australian community until his imprisonment. He accepts the Minister’s conclusions regarding the seriousness of his crimes and he has frequently expressed remorse for them. He says that for a short period, he “lost his way to drugs and alcohol” but that if he is given a chance he can be “a productive member of society and give back to the community and make amends” for his actions. He disputes the factual basis of immigration reports prepared by Corrective Services New South Wales dated 24 September 2012 and 18 December 2013 (“Immigration Reports”) which indicated that Mr Tuakeu did not have contact with his family in Australia and that he had taken insufficient steps to address his offending behaviour. He says he has strong family ties in Australia, he is in contact with his family in Australia and he is needed to support his grandmother following the death of his grandfather. He also says that he “strongly believes” that he has taken all steps necessary to address his offending behaviour. He fears that if he returns to New Zealand, he will have no family support or stable living conditions.

5    In summary, the grounds on which Mr Tuakeu impugns the Minister’s decision are that the Minister’s decision was based on “false information” and the decision was made without taking into account documents which he sent or asked to be provided to the Minister. Mr Tuakeu said that what he wants is a review by the Minister with all of the documents which should have been in front of him so that he has a “fair chance”.

6    While recognising the effort Mr Tuakeu had put into his application, at the conclusion of the hearing, I dismissed his application with costs and delivered brief ex tempore reasons. Although I found Mr Tuakeu’s explanation for such a long period of delay understandable, it was nonetheless unacceptable and his grounds of appeal lacked legal merit. I indicated that I would provide more detailed written reasons and these are those reasons.

Background

7    Mr Tuakeu was born in August 1992 in New Zealand. He arrived in Australia with his grandparents in October 1997; his grandparents raised him and he resided with them. Mr Tuakeu’s parents and siblings came to Australia in 1998 but they returned to New Zealand permanently after a short period of time and he has had little to no contact with his parents since then.

8    On 10 May 2012, in the District Court of New South Wales, Mr Tuakeu pleaded guilty to two counts of robbery: robbery armed with an offensive weapon and robbery in company with wounding. The offences were committed on consecutive days. Mr Tuakeu was 19 when the offences were committed and his co-accused was 14 years old. Mr Tuakeu’s total effective sentence was six years and six months imprisonment with a non-parole period ending on 1 October 2014.

Correspondence between the Department and Mr Tuakeu

9    The Department of Immigration and Citizenship, which is now known as the Department of Immigration and Border Protection, (“Department”) advised Mr Tuakeu that the Minister was considering whether to cancel his visa under s 501(2) of the Migration Act by a Notice of Intention to Consider Cancellation dated 19 April 2013 (which I will call the “Notice of Intention”). Attached to the Notice of Intention was a copy of Ministerial Direction 55 in relation to visa refusal and cancellation under s 501, setting out the considerations to be taken into account, as well as the following documents:

    Sentencing remarks of Judge Coorey of the District Court of New South Wales made on 10 May 2012;

    Conviction, Sentences and Appeals report from the New South Wales Department of Corrective Services dated 7 June 2012; and

    An Immigration Report from the New South Wales Probation and Parole Service dated 24 September 2012 (“September 2012 Immigration Report”).

10    Sentencing remarks made by Judge Coorey indicate that:

    Mr Tuakeu was “an immature and socially challenged young man” who would need the assistance of a “lengthy period of supervision”. Mr Tuakeu had been intoxicated and armed with a knife when he committed the offences. Mr Tuakeu’s “major problem” was “clearly alcohol, related to alcohol and drugs”. Judge Coorey accepted a psychiatric report prepared by Dr Richard Furst (“Psychiatric Report”) which recommended that Mr Tuakeu receive “counselling to improve his social skills, problem solving abilities and anger management … and drug and alcohol counselling”.

    Mr Tuakeu’s legal representative submitted that the victim in the first offence was in a vulnerable position; he was a shopkeeper and the amount taken was $4,000. The victim in the second offence was visually impaired; during the commission of the offence he suffered a slight laceration below the left ear however there was no bleeding and no stitching was required.

    Mr Tuakeu expressed remorse on a number of occasions and entered into an early guilty plea.

    Although Mr Tuakeu had been assessed as suitable for a community service order, Judge Coorey accepted a concession made by Mr Tuakeu’s legal representative that the sentence “had to be a custodial sentence”.

    Judge Coorey accepted the Crown’s submission that the first offence was “low to mid-range… closer to [the] mid-range” of seriousness while the second offence was an act of recklessness and “close to the mid-range of objective seriousness”.

    Judge Coorey accepted the Crown’s submission that “there is some prospect of rehabilitation ... that must arise … from the age of the offender”.

11    The September 2012 Immigration Report indicated that:

    Mr Tuakeu was residing with an aunt before his incarceration due to issues he had with an uncle who lived with his grandparents. He had not had contact with any member of his family since incarceration and he was unable to provide contact details for his grandparents or other significant family members. A pre-release assessment of his grandparents’ house, where he intends to live, would be conducted at a time closer to Mr Tuakeu’s earliest possible release date.

    Since entering custody Mr Tuakeu had returned a urinalysis report which had been positive to drugs in June 2011. He had been charged with five institutional misconduct offences between 4 December 2011 and 13 August 2012 including “fight or other combat” (twice), “damage destroy property”, “possess create prohibited goods” and “disobey direction”.

    He acknowledged responsibility for his offences and said his participation in them was “stupid”.

    While Mr Tuakeu expressed a desire to gain employment in the community, he did not reveal any confirmed employment plans at this stage.

    Mr Tuaeku was assessed as having a “medium likelihood of re-offending”. The report went on to say that: “While he has reported that he has the support of his grandparents, this has not been possible to confirm. It is concerning that the inmate has not received any contact from his family during his incarceration. It would appear that the inmate is lacking in a supportive and stable environment within the community”.

    He had not participated “in any education, employment or offence targeted programs”; this was described as “concerning”. Mr Tuakeu also did not appear to be interested in participating in these programs.

12    It is not disputed that Mr Tuakeu responded to the Notice of Intention by filling out a Personal Details Form dated 4 May 2013 (“Personal Details Form”) and an authority to release information which were received by the National Character Consideration Centre (“NCCC”) in Melbourne on 16 May 2013. In the Personal Details Form, Mr Tuakeu said that:

    He was concerned about returning to New Zealand because he had lived in Australia since the age of five. He had had no contact with his parents or siblings in at least a decade. It would be very difficult for him to get an “honest start” in New Zealand as he would have no stable living arrangements or family support.

    He was aware that his record since being in custody was “rather poor” but noted that he had recently begun a managing emotions course and was willing to participate in any courses thought necessary.

    He was trying to gain employment while in custody with the aim to save money for his release and a “fresh start” but that it was difficult to do so because he was in protective custody.

    As to his living arrangements in Australia when released, he said “I will be guaranteed stable living and family support from my Grandparents who I am currently trying to get in touch with” (emphasis added).

    If he was given a “second chance” he would “abide by all parole and supervision that I’m given and will also be seeking future employment”.

    He asked that these matters be taken into “careful consideration” and said that he would be “very appreciative and would be very thankful for any updates”.

13    By a letter dated 10 May 2013, the Department advised Mr Tuakeu that it had received new information and invited comment by 4 June 2013. The new information was a National Police Certificate dated 6 May 2013 which noted two appearances by Mr Tuakeu before the Burwood local court, one appearance before the Blacktown local court and one appearance before the Bankstown local court between 21 October 2010 and 15 August 2011. These appearances related to minor shoplifting, property damage, theft and larceny offences.

14    On 18 December 2013, the Department sent a letter to Mr Tuakeu advising him that it had received an Immigration Report of the same date (“December 2013 Immigration Report”) and inviting his comment on it. The December 2013 Immigration Report indicated that (among other things):

    Before incarceration Mr Tuakeu had resided with his grandparents and he says he has a good relationship with them. However, since entering custody he had no contact with any of his family and was “unable to supply any telephone contact details for his grandparents or any other significant relative”. This raised concerns as to the support he would receive from his family in Australia upon release.

    Mr Tuakeu displayed remorse for his victims and attributed his offences to intoxication; he displayed insight into the impact of his actions on the victims.

    He had two further institutional misconduct charges: 2 January 2013 (unlawful deliver/receive article to or from inmate) and 14 May 2013 (fight or other combat).

    Records indicate that although Mr Tuakeu was initially resistant to undertaking employment while in custody, he commenced employment as a sweeper in May 2013 and he had received positive work reports.

    Mr Tuakeu had successfully completed the Getting SMART program, however, service records indicate that at the end of the program he “verbalised to Service and Program Staff facilitating the program that he does not intend on changing his pervious illicit substance abuse once released to the community, as he does not see it as problematic”. This was of concern to the Service and “Mr Tuakeu will be required to participate in further programs to address his criminogenic factors and display a motivation and willingness to accept the factors that have impacted on his offending behaviour”. The final sentence of the report states that “… the inmate will need to address his attitude and orientation before being considered for Parole”.

    In September 2012, Mr Tuakeu was referred to the Controlling Anger and Managing It (CALM) program and was awaiting assessment for inclusion. Mr Tuakeu had participated in eight of ten sessions of the Managing Emotions Program, but in May 2013 he was suspended due to an institutional misconduct charge; no further programs would be facilitated until mid-January 2014.

    There had been no change of status in relation to the assessment of his grandparents’ home as a suitable residence upon release or Mr Tuakeu’s post-release employment plans, although he had displayed a desire to gain employment.

15    Included with Mr Tuakeu’s affidavits filed in November 2015 is a statutory declaration declared on 1 July 2015, which a justice of the peace appears to have attested to witnessing on “01.06.15” (“Statutory Declaration”). Mr Tuakeu declares that he responded to the Notice of Intention in writing on 28 April 2013. He says he responded to the 10 May 2013 letter on 18 May 2013, he responded to the 18 December 2013 letter on 6 January 2014, and he responded to the 24 April 2014 letter on 1 May 2014. He also says that “A phone call to immigration was place by Sapo early may with the result still pending” (as written).

16    In point 3 of the grounds listed in his “Draft of Appeal” attached to Mr Tuakeu’s affidavit made on 10 November 2015, Mr Tuakeu also says that he sent a letter on 6 February 2014 in relation to the death of his grandfather.

17    The Minister says that the Personal Details Form, the acknowledgement of notice under s 501 and the authority to release information are the only communications he received from Mr Tuakeu in relation to the possible cancellation of Mr Tuakeu’s visa. The Minister relied on the affidavit of Mr Matthew Kane affirmed on 19 February 2016. Mr Kane is a legal officer employed by the Department in the AAT and Removals Injunction Section of the Legal Advice and Operational Support Branch, the Section responsible for managing litigation on behalf of the Minister. Mr Kane says that searches of the Department’s hardcopy and electronic files were conducted on 18 and 19 February 2016 for letters which Mr Tuakeu alleges that he sent to the Department dated 18 May 2013, 6 January 2014, 6 February 2014 and 1 May 2014. None of these letters was found, nor was there any record of a telephone call being placed to the Department by or on behalf of Mr Tuakeu. Mr Tuakeu did not supply a copy of any of these letters or any evidence as to their despatch.

Minister’s decision

18    By a letter dated 15 October 2014 the Department advised Mr Tuakeu that the Minister had decided to cancel his visa. I will refer to this letter as the “Cancellation Advice Letter”. The Cancellation Advice Letter indicates that, when making his decision, the Minister had before him a submission prepared by the Department (“Issues Paper”) which attached:

    Mr Tuakeu’s movement records;

    The Notice of Intention and the other documents which were attached to it referred to at [9] above;

    Mr Tuakeu’s Personal Details Form and acknowledgement of notice under s 501 and the authority to release information of the same date (see [12] above);

    The Department’s letter dated 10 May 2013 and the National Police Certificate dated 6 May 2013 (see [13] above);

    The Department’s letter dated 18 December 2013 and the December 2013 Immigration Report (see [14] above); and

    A letter dated 24 April 2014 in which the Department advised Mr Tuakeu that the letters sent to him on 10 May 2013 and 18 December 2013 had incorrectly referred to the date of the Notice of Intention as “19 April 2014”, when it should have read “19 April 2013”. It did not invite comment.

19    Having found that Mr Tuakeu did not pass the character test by reason of his convictions in May 2012, the Minister proceeded to consider whether to exercise his discretion to cancel Mr Tuakeu’s visa. He stated that he was “mindful of the Government’s commitment to use s 501 of the Migration Act to protect the Australian community from harm that may result from criminal activity or other serious conduct by non-citizens”.

20    The Minister noted the nature of Mr Tuakeu’s convictions and adopted Judge Coorey’s sentencing remarks regarding the seriousness of the offences, the mitigating factors and the risk of reoffending: see [10] above. He stated that he viewed Mr Tuakeu’s “violent offending against vulnerable victims as very serious”. He also noted that it was Mr Tuakeu’s first time in custody and that he had expressed remorse for his offending.

21    The Minister took into account the Immigration Reports and in particular, his “resistant attitude displayed toward participation of [sic] the recommended programs as well as the aversion to changes upon release”, his “several incidents of misconduct” while in custody and the fact that Mr Tuakeu was “lacking of stable support from the community”. He found that Mr Tuakeu had “demonstrated limited rehabilitation” and although Mr Tuakeu had “articulated sound intentions regarding positive family and social supports in the community and formulated employment plans, none of these are [sic] currently viable”. Having regard to those circumstances and Mr Tuakeu’s “behaviour and level of insight, and in particular the professional assessment that places Mr Tuakeu as a medium risk of reoffending”, the Minister found that “Mr Tuakeu poses a risk of re-offending”.

22    He found that Mr Tuakeu’s closest family members were his grandparents and that “cancellation of Mr Tuakeu’s visa will negatively affect” them as Mr Tuakeu would not be able to help them “as he envisages”. The Minister noted Mr Tuakeu’s concerns that he would have “no family support or stable living arrangement” in New Zealand because he had lost contact with his family members “for a long time”. The Minister considered Mr Tuakeu’s age (then 21), health and the fact that he had lived in Australia since he was five years old. He also considered the similarity between Australia and New Zealand in language, culture and living standards and found that Mr Tuakeu may have “some difficulties in re-establishing himself” but that “his immediate family members in New Zealand may be able to provide him with some social support, and he would not suffer extensive hardship” upon his return to New Zealand.

23    In reaching his decision, the Minister gave “considerable weight to the serious nature of Mr Tuakeu’s criminal offending which cause [sic] two vulnerable victims physical injury and financial losses. The seriousness of Mr Tuakeu’s offending is reflected in the sentences imposed by the court”. He also “considered the principle that a non-citizen who commits a serious crime such [sic] should forfeit the privilege of staying in Australia, and I find that this principle applies in this case”.

24    The Minister accepted that the Australian community “may accept a higher tolerance of risk” because Mr Tuakeu had arrived in Australia at age five, and “had lived here for 16 years and spent all of his formative years in Australia”, that he had familial links here and ties through schooling and a limited period of work.

25    Nonetheless, the Minister was “concerned that Mr Tuakeu has demonstrated limited rehabilitation efforts and progress to date”. This raised concerns in his mind about the extent of Mr Tuakeu’s rehabilitation and suggested that he poses a risk of reoffending. The Minister acknowledged that “Mr Tuakeu may continue with his rehabilitation and make progress; however I conclude that even a low risk of further offending by Mr Tuakeu would be unacceptable, because of the great harm that could result”.

26    In the result, the Minister formed the view that “Mr Tuakeu represents an unacceptable risk of harm to the Australian community”. He concluded that “the protection of the Australian community outweighed any countervailing considerations in his case”.

27    The Minister cancelled Mr Tuakeu’s visa on the grounds that he reasonably suspects that Mr Tuakeu does not pass the character test and Mr Tuakeu did not satisfy the Minister that he passed the character test.

Legislative Framework

28    Section 501 of the Act relevantly provides:

501 Refusal or cancellation of visa on character grounds

Decision of Minister or delegate – natural justice applies

(1)    The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

Note: Character test is defined by subsection (6).

(2)    The Minister may cancel a visa that has been granted to a person if:

(a)    the Minister reasonably suspects that the person does not pass the character test; and

(b)    the person does not satisfy the Minister that the person passes the character test.

Decision of Minister – natural justice does not apply

(3)    The Minister may:

(a)    refuse to grant a visa to a person; or

(b)    cancel a visa that has been granted to a person;

if:

(c)    the Minister reasonably suspects that the person does not pass the character test; and

(d)    the Minister is satisfied that the refusal or cancellation is in the national interest.

(4)    The power under subsection (3) may only be exercised by the Minister personally.

(5)    …

Character test

(6)    For the purposes of this section, a person does not pass the character test if:

(a)    the person has a substantial criminal record (as defined by subsection (7)); or

…

Substantial criminal record

(7)    For the purposes of the character test, a person has a substantial criminal record if:

...

(c)    the person has been sentenced to a term of imprisonment of 12 months or more; or

…

Delay

29    Mr Tuakeu explained the reason for the delay in seeking review of the Minister’s decision on the basis that:

(1)    As a protection inmate, he had limited access to services to explain how he might seek review of the Minister’s decision. He was misled to believe that he had no review rights by the Cancellation Advice Letter, which provided as follows in the third last paragraph:

The decision to cancel your visa has been made by the Minister. While the Administrative Appeal Tribunal (AAT) has the power to review decisions to cancel or refuse the grant of a visa under s. 501 made by delegates of the Minister, it cannot review decisions made by the Minister personally. You are free to seek legal advice as to your position, if you wish.

(2)    After “months of inquiries” he learned of the option of “appealing” to the Federal Court. He made an unsuccessful attempt to file a review application with the Court in March 2015. He has since made unsuccessful efforts to obtain legal representation as evidenced by rejection letters from Legal Aid New South Wales (16 January 2015), the Law Society of New South Wales (28 July 2015) and the New South Wales Bar Association (31 August 2015). He had no funds to retain a private solicitor to assist him in understanding the review process and the rules of the Court.

30    Counsel for the Minister submitted that the advice as to review rights in the Cancellation Advice Letter was correct and not misleading and the explanation for the delay was inadequate. Having regard to the length of delay, it would require exceptional circumstances for an extension of time to be granted. No point was taken that the Minister would suffer any prejudice if an extension of time were granted.

31    I found that, although the advice as to review rights in the Cancellation Advice Letter is literally correct, Mr Tuakeu understood this advice to mean that there was no avenue for review of the Minister’s decision and I accept that he had some basis for forming that view. I also accept that Mr Tuakeu attempted to initiate a review of the Minister’s decision in March 2015 and made extensive efforts to obtain legal advice.

32    Nonetheless, a delay of approximately one year is very long. While Mr Tuakeu attempted to initiate a review in March 2015, the delay of a further eight months before Mr Tuakeu filed the current application is long. Courts have generally taken the position that it is not an adequate reason for extensive delay that a person is not represented and is unaware that they have a right to appeal or to seek review of a decision. Nor is it an adequate reason that they do not know the time periods specified in legislation or the rules of the Court for initiating such processes. Having said that, the consequences to Mr Tuakeu arising from the Minister’s decision are significant and the primary consideration in determining whether an extension of time should be granted is whether Mr Tuakeu’s proposed grounds of review have sufficient legal merit to warrant the grant of an extension of time. I determined that they do not.

Merit of application

33    Mr Tuakeu lodged two affidavits on 17 November 2015, the first was sworn on 5 May 2015 and the second was sworn on 10 November 2015.

Grounds of application

34    The grounds of Mr Tuakeu’s application are attached to his affidavit made on 10 November 2015.

(1)    He asks that his case be reconsidered and his visa reinstated due to his strong family ties in Australia and the time he has lived here.

(2)    Despite the records of the NCCC, he did respond to letters from the Department seeking further information. He says he did this by letter and by telephone with assistance from prison staff.

(3)    He has no contact with anyone in New Zealand and has been able to maintain contact with his grandparents and family here in Australia.

(4)    He lost his grandfather recently and he intended to return to Sydney to care for his grandmother and to have his chance to grieve.

(5)    He strongly believes that he has addressed his offending behaviour and has very high prospects and goals in returning to the community.

Minister’s submissions

35    The Minister submits that Mr Tuakeu’s grounds seek impermissible merits review and that Mr Tuakeu’s disagreement with statements in the Immigration Reports does not establish any jurisdictional error by the Minister.

36    Further, Mr Tuakeu bears the onus of establishing in this Court that he sent the communications which he alleges. Mr Tuakeu’s evidence, unsupported by copies of the alleged letters or records or other evidence of these communications or attempts to communicate with the Department, is insufficient to disclose a failure of procedural fairness or other jurisdictional error by the Minister.

37    I formed the view that these submissions must be accepted. In deference to the considerable effort which Mr Tuakeu made to provide evidence and arguments in support of his application, I will address his submissions and evidence in some detail.

Mr Tuakeu’s documentary evidence

38    Mr Tuakeu filed two affidavits on 1 February 2016, attaching documents in support of his application and written submissions. The documents included:

(1)    A copy of the Psychiatric Report in connection with Mr Tuakeu’s sentencing in May 2012. In submissions, Mr Tuakeu says that he asked for a copy of this report to be provided to the Minister, but there is no record of that request being made or acted on.

(2)    A “List of Permitted Numbers” setting out the name and contact number for persons described as his grandmother, two aunts, three friends and a person described as “lawyer” printed on Friday 10 July 2015 at 10.43 am.

(3)    A pre-release report dated 4 July 2014 (“July 2014 Pre-release Report”) which indicates that on 11 June 2014, the Parramatta Community Corrections Office deemed the address of his grandmother and aunt to be suitable as a place for him to live upon his release. Mr Tuakeu says that, even though there were a number of matters which he challenges in the July 2014 Pre-release Report, he asked that this report be provided to the Department on 11 July 2014; there is no record of this request.

(4)    Case Note Reports by officers of the New South Wales Department of Corrective Services in relation to Mr Tuakeu for a period from 18 May 2013 to 13 November 2014. Because of the period of these reports, they cannot record Mr Tuakeu receiving the Notice of Intention or of him sending the Personal Details Form which was received by the NCCC on 16 May 2013. The only express reference to correspondence with the Department occurs in the Case Note Reports for 26 November 2013 (when a call was made from Wellington CC to “immigration regarding current status – advised that inmate is still of interest however is still under investigation”) and 13 November 2014 (which records that Mr Tuakeu had received the “immigration paperwork”, presumably the Cancellation Advice Letter, that day and that the Department had telephoned Wellington CC seeking confirmation of this). The Case Note Report of 14 August 2013 states that “Inmate does not receive and visits due to the distance and rarely uses the ots phone system to contact family” (as written). Though worded slightly differently, Case Note Reports on 12 October 2013, 7 December 2013 and 27 February 2014 state that Mr Tuakeu did not receive visits from family (due to distance) nor did he receive or send mail and he did not use the OTS phone system. The Case Note Reports indicate that calls were made at Mr Tuakeu’s request on 6 February 2014 and 10 February 2014 when he received news of a death, which I take to be his grandfather’s death, but the name of the person called is redacted.

(5)    Supporting reference dated 19 January 2016 from Pastor Jim Ready, Chaplin at Wellington CC. In his supporting document, Pastor Ready attests to the fact that Mr Tuakeu attends chapel and has completed a 10 week Bible Study course (certificate dated 19 January 2016), the Positive Lifestyle Program (certificate dated 28 January 2015), the EQUIPS Foundation Program (certificate dated 4 May 2015), the Managing Emotions Program (certificate dated 31 March 2014) and the Getting Smart Program (certificated dated 3 July 2013).

(6)    Pre-release reports prepared by Corrective Services New South Wales dated:

(a)    10 October 2014, relating to the fact that Mr Tuakeu was awaiting assessment as to his suitability for participation in a Violent Offender Treatment Program;

(b)    3 November 2014, indicating that Mr Tuakeu could not participate in an Intensive Drug and Alcohol Treatment Program for which he had been assessed as suitable as the program does not accept SMAP (Special Area Management Prisoner) inmates and Mr Tuakeu refused to sign off that placement;

(c)    6 February 2015, indicating that Mr Tuakeu had been assessed as eligible to participate in a Self Regulation Program for Violent Offenders (SRP-VO) adapted for inmates with cognitive impairments and recommended that he complete that program before release; and

(d)    29 June 2015, which indicated that (1) although Mr Tuakeu had received no visits from his family, he was in telephone contact with his grandmother and extended family in Sydney; (2) he remained a SMAP prisoner and when informed that he was to be transferred to a lower classification facility in Junee, he threatened to attempt escaping because there are prisoners at Junee with whom he has association concerns; (3) although assessed as eligible to undertake the SRP-VO, Mr Tuakeu declined and stated that his preference was to complete the EQUIPS (Aggression) program for which he had been assessed as suitable. However, there was no guarantee that he would remain at Wellington CC to complete the program and due to staff shortages he would have a better opportunity to complete the EQUIPS program elsewhere; (4) his urinalysis test showed he was drug free; (5) he receives positive reports for his participation in the Internal Grounds Maintenance Team. The report determined that Mr Tuakeu would need a medium/high level of supervision in custody or if released. The report concluded that “there has been no significant improvement in the attitude of the offender over the past 12 months, either in respect of addressing his propensity for violence, as demonstrated by him declining to participate in the (SRP-VO), or his compliance with the requirements of the custodial authorities, as demonstrated by his recent attempts to “manipulate the system” to prevent his intended transfer to a location which was not to his liking.” While it was appreciated that his cognitive abilities which fall within the “extremely low range” may explain this “clumsy” attempt, “the fact remains that the offender declined to [sic] the opportunity to meaningfully address his violent behaviours” and therefore he was not suitable for release at that time.

(7)    A copy of a State Parole Authority notice which records that at its meeting on 9 October 2015 the Authority noted that Mr Tuakeu “has the support of his family and appropriate accommodation”, but until Mr Tuakeu addresses his violence and use of alcohol and drugs and “remains free of further incidents in custody”, it would not be appropriate to release him on parole.

39    It can shortly be said that documents dated after the Minister made his decision have no bearing on Mr Tuakeu’s review application, even though they disclose that at least since his grandfather’s death, Mr Tuakeu has had greater contact with his family in Australia and his ties to them are stronger than revealed by the Immigration Reports. They also disclose efforts to better manage himself since May 2013. Nonetheless, for the reasons set out below, it is plain that it was open to the New South Wales Corrective Service to form the view that it did in the Immigration Reports and the Minister did not err in relying on those reports. It cannot be said that the Minister made a jurisdictional error in the exercise of his decision making power based on the materials in evidence.

Draft of Appeal

40    Mr Tuakeu expanded on the grounds of review in a document headed “Draft of Appeal” which was also attached to his affidavit made on 10 November 2015.

Point one of the “Draft of Appeal”

41    This point states that the Immigration Reports contained “false information”. Mr Tuakeu takes issue with the findings in the Reports which he says state that he was unable to supply contact details for his family in Australia, that he had no contact with them, that their support for him could not be verified and that he “lacked the ability to rehabilitate”.

42    Mr Tuakeu relied on the List of Permitted Numbers and the July 2014 Pre-Release Report in support of his contention that the Immigration Reports contained “false information”. As the list was printed on Friday 10 July 2015 it is not evidence of what Mr Tuakeu’s contacts were at the time of the Immigration Reports.

43    Despite the reference to “rare” use of the OTS phone system in the Case Note Report of 14 August 2013, it was open to the preparers of the Immigration Reports to form the view that Mr Tuakeu was not in contact with his family at the time the Immigration Reports were written, having regard to the content of the Case Note Reports and the length of his incarceration. This is so even though Mr Tuakeu explained the lack of visits as being caused by distance and New South Wales Corrective Services was plainly aware of Mr Tuakeu’s grandparents’ address as it is referred to in the Immigration Reports.

44    The Case Note Reports in February 2014 indicate that Mr Tuakeu was (most likely) in contact with his family concerning the death of his grandfather. While the New South Wales Corrective Services Report dated 29 June 2015 and the State Parole Authority notice in October 2015 support Mr Tuakeu’s contention that he was in contact with his family, the Case Note Reports before February 2014 do not support that contention.

45    It is notable that Mr Tuakeu’s Personal Details Form dated in May 2013 speaks of “trying to get in touch with” his grandmother and while he asserted that he would be “guaranteed stable living and family support from my Grandparents” he did not dispute the statement made in the September 2012 Immigration Report that he was not in contact with his family.

46    There is no evidence in the Case Note Reports that Mr Tuakeu sent a letter on 6 February 2014 notifying the Department of his grandfather’s death as Mr Tuakeu alleges in point three.

47    On the information before the Minister in October 2014, it was open to him to form the view that Mr Tuakeu was “lacking stable support from the community” and although he “articulated sound intentions regarding positive family and social support in the community and formulated employment plans, none of these are [sic] currently viable”.

48    Further, it is not the case that the Immigration Reports stated that Mr Tuakeu “lacked the ability to rehabilitate” although they did report that Mr Tuakeu had achieved limited rehabilitation and had displayed a poor attitude towards change in relation to the use of alcohol and illicit drugs. More importantly, the Minister does not state that he had formed the view that Mr Tuakeu lacked the ability to rehabilitate. The Minister formed the view that “Mr Tuakeu has demonstrated limited rehabilitation efforts and progress to date” (emphasis added). The Minister went on to say that “This raises concerns in my mind about the extent of Mr Tuakeu’s rehabilitation and suggests that he poses a risk of reoffending. I acknowledge that Mr Tuakeu may continue with his rehabilitation and make progress; however I conclude that even a low risk of further offending by Mr Tuakeu would be unacceptable, because of the great harm that could result”.

49    That view was open to the Minister based on Mr Tuakeu’s conviction record, the Immigration Reports and Mr Tuakeu’s Personal Details Form in which he acknowledged that his conduct in custody had been “rather poor” and he had begun courses and was “willing to participate in any other courses you would think necessary”; that is, his commitment to rehabilitation had been stated but that he would fulfil the commitment had not been demonstrated yet to any significant extent.

50    The documents attached to Pastor Ready’s reference indicate that Mr Tuakeu has continued to take steps towards rehabilitation. While the December 2013 Immigration Report referred to the fact that Mr Tuakeu had completed the Getting Smart Program, the certificates of completion for other courses referred to by Pastor Ready post-date the Immigration Reports and were either not before the Minister when he made his decision or they post-date the Minister’s decision and are not relevant in considering whether the Minister’s decision was affected by jurisdictional error. While it might be said that the Minister’s decision was not contemporaneous with the December 2013 Immigration Report and he might have sought more recent information before making his decision, I accept the Minister’s submission that Mr Tuakeu has not established that the Minister had any obligation to make further inquiries and it was open to Mr Tuakeu to supply the Minister with information at any time.

Points two and three of the “Draft of Appeal”

51    Point two complains that the Minister was informed that Mr Tuakeu responded only once to the Notice of Intention to consider cancelling Mr Tuakeu’s visa. However, Mr Tuakeu says he responded to the Notice of Intention and other subsequent correspondence from the Department, by mail and by phone. He also asked welfare officers to seek updates. Point three states that “on 6th February 2014 I notified by letter that my grandfather had passed away and expressed my stronger concern and feelings on why I really needed to stay in Australia that I really needed to get out and take care of my grandmother which is still something that is my main concern” (as written).

52    In support of these contentions, Mr Tuakeu relied on:

(1)    The Statutory Declaration (see [15] above). The assertions in the Statutory Declaration are not borne out by Mr Kane’s evidence as to the content of the Department’s file (which I accept). Mr Tuakeu has only been able to supply a copy of the Personal Details Form which the Minister agrees he received; strangely, that document is not referred to in his Statutory Declaration. Mr Tuakeu has not given evidence of the content of any of the alleged responses except for the 6 February 2014 letter referred to in point three, but that letter is not referred to in the Statutory Declaration and its existence is not borne out by Mr Kane’s evidence;

(2)    By a hand written endorsement on a copy of the Department’s letter of 18 December 2013 attached to Mr Tuakeu’s affidavit sworn on 5 May 2015, Mr Tuakeu indicates that a telephone call was made to the Department on his behalf enquiring as to the status of his visa and that the Minister’s decision was pending, however this is not borne out by Mr Kane’s evidence. There is a reference in the Case Note Reports to a call made to “immigration” on 26 November 2013 concerning Mr Tuakeu’s status, however, there is no record that it was instigated by Mr Tuakeu. The call appears to be a response to a request from an area manager within the New South Wales Corrective Services for the preparation of an Immigration Report, presumably made in preparation for the December 2013 Immigration Report.

53    In his written submissions, Mr Tuakeu states that he sent a request to the NCCC in July 2013 asking that the Psychiatric Report which had been before Judge Coorey be submitted to the Minister. Mr Tuakeu also notes that the Minister’s decision made no mention of a personal letter which he sent to the Department in July 2014 “outlining his whole situation” if he were to be returned to New Zealand. Mr Tuakeu has not supplied any evidence of either the request or the July 2014 letter and their existence is not borne out by Mr Kane’s evidence.

54    I conclude that either Mr Tuakeu sent only the Personal Details Form (and related confirmation and authority) to the Minister in connection with the possible cancellation of his visa, or through no fault of the Minister, the correspondence allegedly sent by Mr Tuakeu was not received by the Department and therefore that it was not before the Minister when he made his decision. It is plain that the Minister was aware of Mr Tuakeu’s contention that he was needed to support his grandparents, even if the Minister was not made aware of the death of Mr Tuakeu’s grandfather.

55    Points two and three do not reveal jurisdictional error by the Minister.

Points four and five of the “Draft of Appeal”

56    Point four states that Mr Tuakeu did not believe that his “pleas and concerns” about his potential return to New Zealand were “truly looked at”, particularly, the fact that he would be homeless, have no financial, social or family support and would fear for his safety.

57    Point five states that the Minister made no mention in his decision of a personal letter written by Mr Tuakeu regarding his remorse for his crime and his future plans in Australia. Mr Tuakeu says he is troubled by the fact that there “seemed to be many things left out or missing” and that he “really just wants the chance for a review with all the documentation that should have been in front of the Minister”.

58    It is not clear to which “personal letter” Mr Tuakeu refers in points four and five. If he means a letter which he says in his submissions that he sent in July 2014 outlining his situation if he was returned to New Zealand, that letter was not mentioned in the Statutory Declaration and, as mentioned previously, there is no record of it being sent or received and he has not supplied a copy. If he means the Personal Details Form, a claim that his pleas and concerns were not truly looked at cannot be supported as significant extracts from it are set out in the Issues Paper. Further, the Minister’s reasons for his decision to cancel Mr Tuakeu’s visa expressly refer to Mr Tuakeu’s desire to live with and assist his grandparents in Australia, his identification with Australia having lived here for 16 years and his fears concerning lack of social support or stable living arrangements if he returns to New Zealand as he has not been in contact with his family there for a long period of time. The Minister’s finding that Mr Tuakeu may experience hardship but not suffer extensive hardship if he is returned to New Zealand was open to him for the reasons that he gave even if Mr Tuakeu does not share his opinion as to the possibility that his family in New Zealand may offer him some measure of support. The Minister’s reasons disclose that he understood the degree of Mr Tuakeu’s identification with Australia and accepted that his grandparents might be prejudiced if Mr Tuakeu were deported; but he considered that the protection of the Australian community and the risk of Mr Tuakeu reoffending outweighed those considerations. That was an opinion that was open to him on the materials before him.

59    In his written submissions, Mr Tuakeu expresses concern that the Issues Paper referred to a remark made by Judge Coorey in which Mr Tuakeu’s robbery with wounding offence involving a person with impaired sight was described as the “epitome of evil”. Mr Tuakeu submits that Judge Coorey was repeating a submission of the Crown and that it unduly influenced the Minister. While I understand that Mr Tuakeu would be disturbed by such a remark, the Minister does not refer to it in his reasons, though other phrases used by Judge Coorey are quoted by the Minister. It is clear that the Minister had regard to the sentencing remarks as a whole. I do not accept Mr Tuakeu’s submission that the Minister was unduly influenced by the remark.

Conclusion

60    For these reasons, I dismissed Mr Tuakeu’s application and ordered that he pay the Minister’s costs as agreed or taxed.

Associate:

Dated:    13 April 2016