AUSAGE and MINISTER FOR IMMIGRATION AND CITIZENSHIP

[2010] AATA 794

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 794

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/3258

GENERAL ADMINISTRATIVE DIVISION		)
Re		KOSETATINO AUSAGE

Applicant

And MINISTER FOR IMMIGRATION
AND CITIZENSHIP

Respondent

DECISION

Tribunal Deputy President S D Hotop

Date15 October 2010

PlacePerth

Decision The Tribunal affirms the decision under review.

..........[sgd S D Hotop]........

Deputy President

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – Special Category (Temporary) visa – applicant a citizen of New Zealand – applicant first arrived in Australia in May 1997 when aged 16 years 5 months – applicant convicted of first offence in Australia in December 2004 – applicant convicted of numerous offences committed in period 2004–2008 including causing actual bodily harm and grievous bodily harm – applicant not formally warned by Department that visa liable to be cancelled – applicant’s visa cancelled – applicant does not pass character test – discretion to cancel applicant’s visa – primary considerations and other relevant considerations – protection of Australian community strongly favours cancellation of visa – other primary considerations and other relevant considerations favour non-cancellation of visa – totality of other considerations outweighed by protection of Australian community – applicant’s visa should be cancelled – decision under review affirmed

Migration Act 1958 (Cth), s 501

Direction [no 41] – Visa refusal and cancellation under s 501

REASONS FOR DECISION

15 October 2010 Deputy President S D Hotop

Introduction

1. Kosetatino Ausage (“the applicant”) has applied to the Tribunal for review of a decision of a delegate of the Minister for Immigration and Citizenship (“the respondent”), dated 16 July 2010, cancelling his Class TY Subclass 444 Special Category (Temporary) visa under s 501(2) of the Migration Act 1958 (Cth) (“the Act”).

The Factual Background

2.      The applicant was born in Samoa in December 1980 and he subsequently acquired citizenship of New Zealand.  He first arrived in Australia on 21 May 1997 and he has not since departed Australia.

3.      The applicant’s recorded criminal history in Australia is as follows:

Court	Offence Date	Conviction Date	Charges	Count	Result
Meekatharra Court of Petty Sessions	01.12.2004	Disorderly Conduct	2	$50 each charge
Meekatharra Court of Petty Sessions	01.12.2004	Breach of Bail	1	$50
Meekatharra Court of Petty Sessions	01.12.2004	Assault Common	1	6 Mths CBO (Adult)
Fremantle Magistrates Court	19.07.2005	Assault Common	1	$400
Fremantle Magistrates Court	15.07.2005	20.12.2005	No Motor Drivers Licence; Road Traffic Act 1974; s49(1)	(EXP) Fine $200
Fremantle Magistrates Court	15.07.2005	20.12.2005	Fail to give way when proceeding from a stop sign; Road Traffic Code 2000; s50(3)	1	Fine: $200
Fremantle Magistrates Court	13.01.2006	14.02.2006	No Motor Drivers Licence; Road Traffic Act 1974; s49(1)	1	(EXP) Fine: $300
Fremantle Magistrates Court	13.01.2006	14.02.2006	Excess 0.08%; >0.08% but <0.09%; Road Traffic Act 1974; s64(1)	1	MDL Disq 3 Mths Fine: $400
Fremantle Magistrates Court	20.12.2006	25.06.2007	Common Assault; Criminal Code; s313(1)(b)	1	Intensive Supervision Order: 12 Mths (Supvsn)

Court	Offence Date	Conviction Date	Charges	Count	Result
Fremantle Magistrates Court	18.11.2006	25.06.2007	Common Assault; Criminal Code; s313(1)(b)	1	Intensive Supervision Order: 12 Mths (Supvsn)
Fremantle Magistrates Court	05.12.2006	25.06.2007	Breach of Bail Undertaking; Bail Act 1982; s51(1)	1	Fine: $250
Fremantle Magistrates Court	06.11.2006	25.06.2007	Assault Occasioning Bodily Harm; Criminal Code; s317(1)	1	Susp Imp Order: 7 Mths Imp Conc Suspended for 15 Mths
Fremantle Magistrates Court	08.11.2006	25.06.2007	Assault Occasioning Bodily Harm; Criminal Code; s317(1)	1	Susp Imp Order: 3 Mths Imp Cum Suspended for 15 Mths
Perth Magistrates Court	08.06.2008	01.07.2008	Excess 0.05g/100ml; >0.06g/100ml but <0.07g/100ml; Road Traffic Act 1974; s64AA(1); Reading 0.067	1	Fine: $200 Demerit points: 4
Perth Magistrates Court	12.07.2008	12.08.2008	Excess 0.05g/100ml; >0.07g/100ml but <0.08g/100ml; Road Traffic Act 1974; s64AA(1); Reading 0.072	1	MDL Disqualified: 3 Mths - Concurrent Fine: $300
Perth Magistrates Court	12.07.2008	12.08.2008	Street Drinking; Liquor Control Act; s119(4)(a)	1	Fine: $100
Court	Offence Date	Conviction Date	Charges	Count	Result
Fremantle Magistrates Court	15.08.2008	19.09.2008	Unlicensed Vehicle (Owner/Driver); Road Traffic Act 1974; s15(3)	1	Fine: $250
Fremantle Magistrates Court	15.08.2008	19.09.2008	Driving Under the Influence of Alcohol; Road Traffic Act 1974; s63(1); Reading 0.18	1	MDL Cancelled 75 RTA 8 Mths; (Pres) - Concurrent Fine: $900
Fremantle Magistrates Court	15.08.2008	19.09.2008	No Authority to Drive - Disqualified/Suspended; Road Traffic Act 1974; s49(1)(a)&(3)(c)	1	MDL Disqualified 9 Mths - Cumulative Fine: $400
Fremantle Magistrates Court	19.09.2008	Breach of SIO (Order of 25.06.07)	2	Fine: $400 (global)
District Court of WA	24.03.2009	Grievous Bodily Harm; Criminal Code; s297	1	Imprison-ment: 3 years and 4 months from 27.11.08

The Legislation

4. Section 501(2) of the Act provides:

“ 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.”

The “character test” is defined in s 501(6) of the Act which specifies various alternative circumstances in which a person does not pass the “character test” within the meaning of that section. In the present case, the relevant circumstance is that specified in para (a) of s 501(6), namely, “the person has a substantial criminal record (as defined by subsection (7))”. Section 501(7) specifies five alternative circumstances in which, for the purposes of the “character test”, a person has a “substantial criminal record”. In the present case, the relevant circumstance is that specified in para (c) of s 501(7), namely, “the person has been sentenced to a term of imprisonment of 12 months or more”.

The Ministerial Direction

5. In reviewing the delegate’s decision in this matter pursuant to s 500 of the Act, the Tribunal is required, by s 499(2A) of the Act, to comply with a direction given by the respondent under s 499(1) of the Act. The relevant direction as presently in force, namely, “Direction [no 41] – Visa refusal and cancellation under s 501” (“Direction [41]”), was given by the respondent on 3 June 2009 and commenced on 15 June 2009. Part A of Direction [41]:

“ provides directions on the application of the character test ... set out in section 501(6) of the Act;”

and Part B:

“ provides directions on the primary and other considerations that are relevant to determining whether it is appropriate in the specific circumstances of the case to exercise the discretion to refuse to grant or cancel the visa. …”

Direction [41] will be relevantly referred to in more detail later in these reasons.

The Evidence

6.      The evidence before the Tribunal comprised:

·     the “G Documents” (G1–G12, pp 1–78) lodged by the respondent (Exhibit R1);

·     a bundle of documents, filed and served by the applicant on 7 October 2010, comprising copies of the following documents (Exhibit A1):

-report of Dr S Febbo, Consultant Psychiatrist, dated 5 June 2006 (sic);

-Graylands Hospital Discharge Summary, dated 13 March 2007, by Dr M Hall, Consultant Psychiatrist, and Dr V Stanojevic, Medical Officer;

-Acacia Prison Medical Record of the applicant, dated 1 October 2010;

-Acacia Prison Individual Management Plan (Recommended) regarding the applicant, dated 20 July 2010;

-certificates of completion by the applicant of various courses while in prison in the period from February 2009 to August 2010;

-birth certificate relating to the applicant’s daughter;

-character references relating to the applicant by his parents, four brothers and one sister; and

·     the oral evidence of the applicant.

The applicant’s evidence

7.      The applicant gave oral evidence which may be summarised as follows:

·     he was born in Samoa in December 1980 and lived there until he was 11 years old;

·     his parents wanted to move to New Zealand because of better work opportunities there and he then moved to New Zealand with his parents and siblings;

·     he lived in New Zealand for 5–6 years and went to school there;

·     he, his parents and siblings left New Zealand and came to Western Australia in May 1997 when he was 16 years old;

·     he completed Year 11 of his secondary schooling at North Lake Senior High School in Perth;

·     he then commenced an apprenticeship as a glazier but left in the third year and worked in the mining industry;

·     his parents, 5 brothers and a sister live in Perth;

·     he also has extended family members living in Perth;

·     he has extended family members – including uncles, aunts and cousins – living in New Zealand;

·     he also has extended family members – including his maternal grandmother, uncles, aunts and cousins – living in Samoa;

·     he has not seen any of his extended family members in New Zealand or Samoa since he was 10 years old, and he has not kept in touch with them;

·     his parents, especially his mother, have kept in touch with their extended family members in New Zealand and Samoa;

·     his mother has spoken to his grandmother about his present situation and, if he were removed from Australia, he would be able, if necessary, to live with his grandmother in Samoa, but he does not want to impose on her;

·     he had a girlfriend, whom he met in Perth in 1997, and they had a daughter who was born in November 1999, when he was 18 or 19 years old;

·     they lived together as a family in Perth until their daughter was 1-year old but he and his girlfriend then broke up (he was 19 or 20 years old at the time);

·     the break-up was a “bad” one and since then his ex-girlfriend has “put off” his attempts to stay in touch with his daughter;

·     he went to a mediation group to try to get access to his daughter, but he then got “locked up” (November 2008) and he has been unable to do anything about it since then;

·     he has had no contact with his daughter since she was 1-year old because his ex-girlfriend does not want him to have anything to do with them;

·     he has never paid any child support;

·     he wants to “make up for the last 8 years” in respect of his daughter;

·     when he is released, he wants to get in touch with his daughter and “pick up where [he] left off”;

·     he wants his daughter to get to know him as her father;

·     the circumstances in which he committed the grievous bodily harm offence in November 2008 were that he and a relative left a bar at 10.30pm–11.00pm and went to the carpark where they were picked up by a friend in a car; as the driver was about to reverse out, the victim, who was standing behind the car, told the driver to “learn some manners” (or words to that effect) and, although the victim had not addressed those words to him, he regarded them as “offensive” and he got out of the car and hit the victim;

·     his reaction to the victim’s words was “over the top” but he did not realise that the victim was badly hurt;

·     he nevertheless accepts what the sentencing judge said about that offence;

·     the police came and arrested him a few days later;

·     he feels remorse and regret and wishes it had never happened – he never intended it to happen, it was a “silly mistake”;

·     while in prison he has “grown up” and done some courses and has “learned a lot”, such as how to deal with similar situations in the future by “just walking away” or “talking”;

·     he also attended a workshop in which he met victims of crime and heard their side, which made him think about his own crime and how “a split second of stupidity led to 3 years of punishment”;

·     his previous violent offending in the period 2004–2006 was due to paranoid schizophrenia symptoms which were then not being effectively controlled by medication;

·     since then he has been prescribed effective medication which is “definitely working” and which he will continue to take;

·     he now realises that substance abuse has had a bad influence on him and he has learned “not to touch the stuff in future”;

·     the most important thing he has learned is “patience”;

·     in prison he has learned bricklaying and worked as a bricklayer and he is presently studying Small Business Management, and when he is released he wants to set up his own bricklaying business;

·     he has learned all his skills in Australia and will only be able to use them successfully in Australia;

·     he is booked to attend a high intensity Violent Offenders Treatment Program in prison in 2011 (being the earliest time such a course has been offered to him);

·     when released he wants to return to live with his parents;

·     he relies totally on his family, especially for support regarding his mental health issues – they have been “there for [him]” since he was born and they are “everything” to him;

·     if he were removed from Australia he would prefer to return to Samoa where he has extended family members on both his mother’s and father’s sides, including his maternal grandmother who looked after him when he was a child;

·     his immediate family members in Perth would visit him in Samoa and at other times he would keep in contact with them;

·     a family reunion is to be held in Samoa around Christmas 2010 and his parents and siblings are going but he will be unable to go because he will be in prison.

Additional material

8.      The Tribunal will refer to certain material contained in the G Documents and in Exhibit A1 in the course of the following analysis.

Analysis

Application of the “character test”

9. By reason of the fact that the applicant has been sentenced to a term of imprisonment of more than 12 months – namely, on 24 March 2009 (see paragraph 3 above) – the Tribunal finds that the applicant has a “substantial criminal record”, as defined in s 501(7) of the Act, and that, by reason of s 501(6)(a) of the Act, he does not pass the “character test”.

10. It follows from that finding that the discretionary power to cancel the applicant’s visa pursuant to s 501(2) of the Act is enlivened in this case.

Should the discretionary power to cancel the applicant’s visa be exercised in this case?

11.     Part B of Direction [41] comprises paragraphs 8 – 11.  Paragraph 9 states:

“(1)     … decision-makers must take into account the primary considerations in every case.  The other considerations (defined in paragraph 11) should be taken into account where relevant.

Note:The primary considerations are set out in paragraph 10 of this Direction.  The other considerations are set out in paragraph 11.

(2)Decision-makers should only take into account directly relevant considerations.

…”

The primary considerations

12.     Paragraph 10 sets out the primary considerations as follows:

“ 10.The primary considerations

(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).”

Protection of the Australian community

13.     Paragraph 10.1 states:

“ 10.1      Protection of the Australian community

(1)Due consideration is to be given to the Government’s objectives set out in Part 1, paragraph 5 of this Direction.

(2)The factors relevant to assessing the level of risk of harm to the community of the person’s entry or continued stay include:

(a)  the seriousness and nature of the relevant conduct; and

(b)  the risk that the conduct may be repeated.”

14.     The objectives set out in Part 1, paragraph 5 are as follows:

“ 5.1        Objectives

(1)The objective of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens.

(2)In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.

(3)The Government is especially mindful to protect the safety of the community’s more vulnerable members, including minors, the elderly and the disabled.”

The seriousness and nature of the relevant conduct

15.     Paragraph 10.1.1(1) states:

“ 10.1.1    The seriousness and nature of the conduct

(1)Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community.  Those crimes involving violence, particularly against vulnerable persons (such as minors, the elderly and the disabled), are especially abhorrent to the whole community.”

Paragraph 10.1.1(2) lists (in paras (a) – (m)) “examples of offences and conduct that are considered serious”, including (relevantly):

“(d)     grievous bodily harm, reckless injury, assault and aggravated assault (including abduction);”.

Paragraphs 10.1.1(3) and 10.1.1(4) relevantly state:

“(3)     The sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community.  Due regard must be given to the extent of the person’s criminal record, including

(i)the number and nature of offences;

(ii)the period between offences; and

(iii)the time elapsed since the most recent offence.

(4)     The following factors are also to be considered:

(a)any relevant information, including, but not limited to, evidence from independent and authoritative sources in respect of the person such as judicial comments in an individual’s case, professional psychological reports, pre-sentence reports for the courts, parole assessments, victim impact statements and similar sources of authoritative information or assessment;

(b)any relevant factors the person provides as mitigating factors;

…”

16.     The circumstances of the offence of unlawfully doing grievous bodily harm to another, for which the applicant was sentenced on 24 March 2009, and the applicant’s relevant personal circumstances, were set out by Judge Scott in his sentencing remarks as follows:

“ …

The facts constituting the offence can be briefly stated.  The prosecution has outlined the facts and I only need to briefly refer to a couple of matters.  First of all, you and the complainant are not known to each other.  You were at the Gate pub in Success with one of your relatives.  At about 11.20 pm, you and your relative with whom you were having a drink were picked up from the car park by a friend and you were seated on the rear driver’s side of the vehicle.

As the driver of the vehicle drove away out of the parking lot, the complainant and another man were on the roadway and the complainant remained in front of your friend’s vehicle.  The complainant and the driver of the vehicle in which you were a passenger had a brief verbal altercation, whereupon you got out of the vehicle, stepped towards the complainant and punched him once with your clenched right fist in the vicinity of his left eye.  He fell to the ground unconscious.  You returned to the vehicle and left the scene.

The blow which you struck the complainant was unprovoked, entirely unwarranted, violent and without any warning.  As a result of the blow, the complainant sustained significant injuries.  The particulars of the injuries can be best described as a left-sided anterior table frontal sinus fracture, meaning that the left eyebrow ridge and forehead area had a compression fracture at this site into the sinus in the area.  There was a dent in the left-sided forehead and eyebrow area of the complainant.

The complainant underwent significant surgery which included the bones in the frontal area of his head being repositioned and plated with titanium plates and screws.  There was also a linear skull fracture.  The complainant has got no recollection of the incident and woke up the following day at Sir Charles Gairdner Hospital.  The impact both physically and psychologically on the complainant has been substantial and I will deal with that shortly.

Your personal circumstances are that you … are 28 years of age.  You were born in Samoa and you’re the eldest of seven children.  It would seem that your childhood upbringing was unremarkable.  You moved to New Zealand in 1991 with your family before settling in Perth from 1997.

You achieved equivalent to year 11 education in New Zealand, and after leaving school you completed a glazier apprenticeship.  You then worked in a variety of capacities and at the time of the offence you were employed as a forklift driver.  You have had limited romantic relationships  You have had one serious relationship that lasted two years from 1998 to 2000, and you have got a nine-year-old daughter who you have not seen since she was one.

Now, I have read with great care the pre-sentence report dated 17 March 2009 and the psychological report from Dr Suzanna Martin dated 16 March 2009.  In the pre-sentence report you acknowledge that you’re (sic) violent response to the complainant was disproportionate to the verbal provocation which you allege.

You are said to have told the author of the pre-sentence report that you believed that you had learned from your offending behaviours and you remarked, ‘It’s something I don’t want to do in the future.  It’s not worth the hassle that comes with it.’  The author then said that you recognised the severe detrimental impact your offending had upon the complainant and that you regretted inflicting the physical injuries upon him.

It is clear that you have suffered from severe psychiatric disorders, namely, schizophrenia, in respect of which you require ongoing treatment  You were at the time of this offending, however, taking your psychiatric medication and that you did not believe, so you told the author of the PSR or the pre-sentence report, that you were experiencing any schizophrenic episode.

The author said that that would suggest that you are desensitised to and have normalised the perpetration of violence which in the author’s view places you at a high risk of similar offending in the future.  That is also a view held by Dr Martin.

In the psychological report Dr Martin said that you were diagnosed in 2004 with bipolar disorder and a later assessment in January ’05 indicated a diagnosis of paranoia and schizophrenia.  She said that you had told her that you had not had any symptoms of this illness over the past year and that you were taking your medication daily.

The results of the tests which Dr Martin conducted were interpreted by her as indicating your profile suggesting an individual who is apathetic, distant, asocial, and detached from relationships and indicative of a person who distrusts others, keeps an interpersonal distance and vacillates between obedience and aggressive opposition, between explosive anger and periods of shame and guilt.

Dr Martin commented upon your history offending (sic) behaviour, including common assault and assault occasioning bodily harm.  She is of the view that your current offence appears to be consistent with your history in which violence results from confrontation with an unknown individual, save in the current case that you reported to Dr Martin that you were not under the influence of any substances and that you had been taking your medication.

You have a criminal record which includes two convictions for assault occasioning bodily harm in June 2007, four counts of common assault, two of which were in June 2007 and one in July 2005 and December 2004.

Your criminal history is relevant.  I can’t give that such weight as may lead to the imposition of a penalty which is disproportionate to the gravity of your present offence but it’s relevant, however, to show whether the present offending is uncharacteristic or demonstrates a continuing attitude of your disobedience to the law.

You have pleaded guilty on the fast-track system and have therefore accepted responsibility for your offending.  That may be indicative of remorse.  However, having regard to the pre-sentence report and the psychological report, I have considerable doubt as to whether any remorse expressed by you may be genuine, particularly in view of the fact that you seem to still constitute a high risk of further violent offending.

The statements made by your mother to the author of the pre-sentence report also indicate that you have assaulted many of your siblings and other family members without provocation and you have a history of significant violence and unpredictability.

I have read the victim impact statements from the complainant and from his parents.  Each of these statements set forth in graphic detail the extraordinary and devastating impact that your actions have led (sic) and have had on the complainant.

The complainant is a young man whose lifestyle in many ways appears to have been irretrievably altered by the effects of this assault on him.  He’s suffered and will continue to suffer from both physical and emotional trauma and the effect on him has also had a devastating effect on his parents.

You have been in custody in respect of this matter since 27 November 2008, which I will take into account.  In imposing sentence, I must consider not only your personal circumstances but the need to punish you in an appropriate manner, the need to protect the community, the need to specifically deter you from committing offences of this nature in the future and the need to generally deter others in the community who might be like-minded in committing similar offences; that is, to send a message to the community that those who consider that an offence such as this nature (sic) is within the parameters of reasonableness may be dissuaded.

In my view, primary sentencing considerations here are personal and general deterrence.  Your previous record demonstrates a disposition to violence.  I need to impose a sentence on you which may deter you from re-offending in a like manner.

You certainly suffer from a psychological difficulty.  That is of five years’ standing.  I (sic) may well have been a precipitator towards other conduct but on the materials that have been supplied to me, not on this occasion.

In considering the sentence that I have to impose on you, I have to consider the provisions of the Sentencing Act.  The result is that a sentence of imprisonment can only be imposed as a sentence of last resort.  In the circumstances of this offending I have no hesitation at all in arriving at the conclusion that by reason of the seriousness of the offending only a sentence of imprisonment to be immediately served is the appropriate sentence in your case.

This was an entirely unwarranted and senseless act of substantial violence.  It was perpetrated on a person you didn’t know.  It was unprovoked.  It was without warning and it was cowardly.

The blow struck by you to the complainant’s face was clearly delivered with substantial force in circumstances where the complainant was entirely unprepared.  I find it impossible to believe that you did not know that he was then badly hurt and in regard to the fact that the force of the blow was sufficient to put a dent in the left side of his head, you knew he was badly hurt.  You left the scene.

After taking into account all relevant circumstances, including your plea of guilty, and such matters personal to you as I can and after taking into account the relevant sentencing provisions, I consider that the appropriate term of imprisonment to be imposed on you will be a term of three years and four months backdated to 27 November 2008.  I order that you be made eligible for parole, which means that you must serve 20 months’ imprisonment calculated as and from 27 November 2008.  That is my sentence.  You may stand down.”  (G8)

17.     The applicant’s recorded criminal history in Australia (set out in paragraph 3 above) indicates that, from 2004 to 2008, he committed offences in each year (apart from 2007), including common assault (in 2004, November 2006 and December 2006), assault occasioning bodily harm (on 6 and 8 November 2006), and unlawfully doing grievous bodily harm (in November 2008).  His other offences largely comprised motor traffic offences (including driving whilst under the influence of alcohol), other alcohol-related offences, and offences involving breach of bail and breach of a suspended imprisonment order.  The applicant’s criminal record also reveals an escalation in the seriousness of his offending over the period 2004–2008 culminating in the offence of unlawfully doing grievous bodily harm which he committed on 21 November 2008 (see G7, p 55) and for which he has been in custody from 27 November 2008.  The violent and serious nature of that offence was described by Judge Scott in his sentencing remarks on 24 March 2009 and was reflected in the substantial sentence of imprisonment for 3 years and 4 months which he imposed (see paragraph 16 above).

18.     By way of possible mitigating factors, the applicant submitted that, when he committed the assault offences in 2005 and 2006, he was suffering from paranoid schizophrenia (as confirmed in Dr Febbo’s report of 5 June 2007 (part of Exhibit A1)).  As regards the more serious offence of unlawfully doing grievous bodily harm, committed on 21 November 2008, however, the applicant acknowledged that he had been taking his prescribed medication and was not experiencing symptoms of paranoid schizophrenia at that time.  He submitted, however, that shortly before he committed that offence he had been attempting to gain access to his daughter without success, and that on the occasion of that offence he had taken offence at what the victim had said to his friend who was the driver of the car in which he was a passenger.  He also submitted that the offence was not planned or premeditated and that he struck the victim only once and not repeatedly, and that he left the scene immediately, thereby avoiding any further confrontation.

19.     In the Tribunal’s opinion, the circumstances referred to in the preceding paragraph do not mitigate the seriousness of the offence of unlawfully doing grievous bodily harm which the applicant committed on 21 November 2008.

20.     Having regard to the circumstances in which the abovementioned grievous bodily harm offence was committed, the nature of the offence itself, and the extent of the physical and psychological impact on the victim, as described in the above-quoted remarks of the sentencing judge, and having regard to the considerations referred to in paras 10.1.1(1), (3) and (4) of Direction [41], the Tribunal concludes that the applicant’s conduct in committing that offence should be regarded as very serious.

The risk that the conduct may be repeated

21.     Paragraph 10.1.2 of Direction [41] states:

“ 10.1.2    The risk that the conduct may be repeated

(1)The person’s previous general conduct and total criminal history are to be considered highly relevant to assessing any risk of re-offending.

(2)The following factors are to be considered as particularly relevant to this assessment:

(a)a recent history of convictions, which should be considered as indicating an increased risk of re-offending;

(b)evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation.  Greater weight should generally be given to evidence from independent and authoritative sources, such as judicial comments, professional psychological reports, pre-sentence reports for the courts, parole assessments, and similar sources of authoritative information or assessment; and

(c)evidence that the person has breached judicial orders, including parole, bail, bonds, suspended sentences and any other relevant undertakings or conditions imposed by the courts.”

22.     The applicant’s recorded criminal history in Australia represents a pattern of frequent and consistent offending, despite convictions and sentences, from 2004 to November 2008 (when he was taken into custody), including violent offending which has escalated in seriousness over that period, as demonstrated by his convictions of common assault (committed in 2004, 2005 and 2006), assault occasioning bodily harm (committed in November 2006), and unlawfully doing grievous bodily harm (committed in November 2008).  The Tribunal notes, furthermore, that the applicant has been convicted of breach of bail in December 2004 and June 2007 and breach of a suspended imprisonment order in September 2008.

23.     In his abovementioned sentencing remarks on 24 March 2009 Judge Scott referred (inter alia) to:

·     the pre-sentence report, dated 17 March 2009, and the psychological report of Dr Martin, dated 16 March 2009, in both of which the opinion was expressed that there is a high risk of similar violent offending by the applicant in the future;

·     the applicant’s previous record demonstrating “a disposition to violence” and his constituting “a high risk of further violent offending”;

·     his “considerable doubt as to whether any remorse expressed by [the applicant] may be genuine”, despite the applicant’s acceptance of responsibility for his offending by pleading guilty which “may be indicative of remorse”.

24.     The Tribunal also notes that:

·     in the Casuarina Prison Immigration Report, dated 17 June 2009, it is stated that, on 9 December 2008, the applicant was found guilty of assaulting another prisoner and was “confined to a punishment cell for three days” (G7, p 55), but that he is “respectful in his dealings with [prison] staff and is not considered to be a management problem” (G7, p 56);

·     in the Acacia Prison Individual Management Plan, dated 20 July 2010, it is stated that, on 29 June 2010, the Prisoners’ Review Board denied parole to the applicant on the following grounds:

“ Very high risk of re-offending and risk to the safety of the community due to:

History of mental health issues which is compounded use (sic) of illicit substances.

Significant criminal history of violent offending against random members of the community.

Unaddressed offending behaviour (substance use and violence).

Very serious and violent nature of current offences which caused extensive injuries to the victim.”

(part of Exhibit A1)

25.     There is, on the other hand, some objective evidence before the Tribunal which may be regarded as indicating the commencement of the applicant’s rehabilitation process, namely, the following courses which he has completed during his incarceration:

·     “Brief Intervention Service workshop discussing Thoughts and Actions;  Substance Abuse – Anger Management issues, using corrective strategies and other behavioural methodologies” (February 2009);

·     Prison Fellowship Australia Inc: “Sycamore Tree Project” (June/July 2009);

·     Alternatives to Violence Project: Basic Course on Alternatives to Violence (August 2010);

·     Auswest Specialist Education and Training Services courses in “Workplace Safety Procedures” (February 2009) and “Safety Awareness Training” (June 2009);

·     Community and Youth Training Services Inc courses in “Apply Basic Communication Skills” and “Communicate Appropriately with Clients and Colleagues” (April 2010).

26.     The Tribunal notes, furthermore, that, in the abovementioned Acacia Prison Individual Management Plan, dated 20 July 2010, it is stated that the applicant has been booked to attend a high intensity “Violent Intensive Program” in the third quarter of 2011.  It is also stated:

“ Mr Ausage has been enrolled in full time education since the 9.2.2010 and receives a level 3 gratuity.  Mr Ausage is an internal student enrolled in Cert lV Small Business Management.  Staff describe him as a very respectful person who follows direction at all times.  He is quiet, a very pleasant person and he interacts well with other prisoners.  He is focused on his studies and making good progress.

Mr Ausage resides in November block with an earned level of supervision.  He has a good attitude and manner when he communicates with both staff and his peers.  He keeps to a small group and has been part of the Maori Haka Group.  He is respectful and polite and follows the rules and regulations of Acacia Prison.  His cell is very clean and he has good personal hygiene.”

27.     Although the material referred to in paragraphs 25 and 26 above indicates that the applicant has taken some steps towards his rehabilitation, those steps, in the Tribunal’s opinion, are very small and do not provide a basis on which the Tribunal may be reasonably satisfied that the applicant has made any significant progress towards his rehabilitation or that his prospects of rehabilitation in the future are good.  The Tribunal notes that the applicant is scheduled to attend a high intensity Violent Offenders Treatment Program in prison in the latter half of 2011 but, at the present time, the Tribunal is unable to assess the benefit (if any) that the applicant may derive from that course.  In forming an opinion as to the degree of risk that the applicant may re-offend – in particular, may engage in further violent offending – the Tribunal attaches the greatest weight to the sentencing remarks of Judge Scott (including his references to the pre-sentence and psychological reports) and, on the basis of that material, the Tribunal is satisfied that the risk of the applicant’s committing offences involving violence in the future is high.  In arriving at that conclusion, the Tribunal acknowledges that, by reason of the applicant’s having completed the abovementioned courses in prison and having had time to reflect on his violent offending, the risk of his violent re-offending may be somewhat lower now than it was when he was sentenced in March 2009, but the Tribunal is nevertheless of the opinion that that risk remains unacceptably high.

Conclusion regarding protection of the Australian community

28.     Having regard to:

·     the very serious nature of the applicant’s conduct in committing the offence of unlawfully doing grievous bodily harm in November 2008; and

·     the high risk of the applicant’s committing offences involving violence in the future;

the Tribunal concludes the “primary consideration” referred to in paragraph 10(1)(a) of Direction [41] – namely, “the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence” – militates strongly in favour of cancellation of the applicant’s visa.

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

29.     Paragraph 10.2 of Direction [41] states:

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

(1)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.

(2)Less weight should be given if the person began living in Australia as a minor but was close to attaining adulthood at that time.

Note: For example, if the person was between 17 and 18 years old on arrival.”

30. By paragraph 6(1) of Direction [41] the word “minor”, for the purposes of the Direction, “has the same meaning as in section 5(1) of the Act”, namely, “a person who is less than 18 years old”. It is common ground that the applicant was 16 years and 5 months old when he first arrived in Australia in May 1997. The applicant was, therefore, a “minor”, within the meaning of paragraph 10.2 of Direction [41], when he began living in Australia.

31.     It is also common ground that the applicant has not left Australia since the date of his arrival.

32.     The phrase “formative years” is not defined in Direction [41] but, in paragraph 10.2, it appears to be intended to refer to the period of minority, that is, the period up to attaining the age of 18 years.  That being the case, the applicant – having been born in Samoa and having lived there until the age of 11 years, and having then lived in New Zealand until the age of 16 years and 5 months before arriving in Australia – spent most of his “formative years” outside Australia and only a small part thereof in Australia.

33.     Accordingly, given that the applicant spent a small part of his “formative years” in Australia, his case is, in accordance with paragraph 10.2(1) of Direction [41], to be given “favourable consideration”, but to a much lesser extent than if he had spent at least a substantial part of his “formative yeas” in Australia.

34.     The Tribunal concludes, therefore, that this primary consideration weighs in the applicant’s favour, but only slightly.

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

35.     Paragraph 10.3(1) of Direction [41] states:

“ 10.3   The length of time that a person has been ordinarily resident

(1)Reflecting the fact that the longer a period of residence in Australia the greater the likelihood of significant ties to the Australian community, 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.

Note:  For example, a period of more than 10 years of residence in Australia prior to a person engaging in criminal activity or activity which bears negatively on the person’s character would be an important consideration.”

36. It is common ground that the applicant has been ordinarily resident in Australia from 21 May 1997 and that the date on which he was first sentenced in Australia is 1 December 2004 (the Tribunal, however, is unaware of the date of the offence for which he was sentenced on that occasion). The applicant’s recorded criminal history in Australia (set out in paragraph 3 above) shows that he thereafter engaged in criminal activity each year (apart from 2007) until he was taken into custody in November 2008. Given that the applicant was ordinarily resident in Australia for a period of approximately 7½ years before, according to his criminal record, he commenced to engage in criminal activity, his case is to be given favourable consideration to that extent in accordance with paragraph 10.3(1) of Direction [41].

37.     The Tribunal concludes, therefore, that this primary consideration weighs in the applicant’s favour, but only moderately.

Relevant international obligations

38.     Paragraph 10(1)(d) of Direction [41] refers to:

“ 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).”

International obligations imposed by the abovementioned Conventions are referred to in more detail in paragraphs 10.4–10.4.3 of Direction [41].

39.     It is common ground that, pursuant to the Convention on the Rights of the Child (“CROC”), the obligation to have regard to the best interests of the applicant’s daughter (“the child”) is a “primary consideration” in this case.  It is also common ground that there are no other relevant international obligations to be considered in this case.

40.     Paragraph 10.4.1 of Direction [41] relevantly states:

“ 10.4.1    The best interests of the child

(1)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse to grant or cancel a visa is expected to be made.

…

(4)Under Australian law, it is generally presumed that a child’s best interests will be served if the child remains with its parents.  Factors which may indicate that the child’s best interests are served by separation from the person include, but are not limited to:

(a)any evidence that the person has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; or

(b)any evidence that the child has suffered or experienced any physical or emotional trauma arising from the person’s conduct.

…”

The respondent does not contend that either of the factors referred to in subparas (a) and (b) of paragraph 10.4.1(4) is applicable in this case.

41.     Paragraph 10.4.1(5) of Direction [41] lists (in subparas (a)–(o)) the factors which “are to be considered” in considering the best interests of the child.  The Tribunal will specify, and comment upon, each of those factors below.

(a)      The nature of the relationship between the child and the person

42.     The child was born in November 1999 and the applicant has not had any contact with her since she was one year old.  The applicant’s evidence was that the child’s mother (with whom the child lives) is opposed to his re-establishing contact with the child and that he is not aware of her address or any other contact details.

(b)The duration of the relationship, including the number and length of any separations and reason/s for the separation

43.     The Tribunal has addressed this factor in paragraph 42 above.

(c)The extent to which the person is likely to play a full parental role up to the child’s eighteenth birthday

44.     Having regard to the whole of the evidence before it, the Tribunal is not satisfied that, even if the applicant remains in Australia, it is likely that he will play a full, or even a substantial, parental role up to the child’s eighteenth birthday.

(d)      The child’s age

45.     As previously noted, the child was born in November 1999 and is presently 10 years and 10 months old.

(e)Whether the child is an Australian citizen, permanent resident or New Zealand citizen

46.     The child is an Australian citizen.

(f)        The likely effect that any separation from the person would have on the child

47.     Given that the child has not had any contact with the applicant since she was one year old, the Tribunal is not satisfied that the child’s continued separation from the applicant would be likely to have any adverse effect on her.

(g)The existence of other persons who already fulfil a parental role in relation to the child

48.     The Tribunal is not aware of any person, other than the child’s mother, who already fulfils a parental role in relation to the child.

(h)The impact of the person’s prior conduct and whether that conduct has, or has had, a negative or positive impact on the child

49.     Given that there has been no contact between the applicant and the child throughout the whole period of his criminal offending, and given that there is no evidence that the child is aware of the applicant’s prior conduct, the Tribunal cannot be satisfied that his prior conduct has had any impact on the child.

(i)        The time that the child has spent in Australia

50.     There is no evidence that the child has left Australia since her birth in November 1999.

(j)        Any Court orders relating to parental access and care arrangements

51.     It is common ground that no such Court orders have been made.

(k)       Any known wishes expressed by the child

52.     There is no evidence before the Tribunal that the child has expressed any relevant wishes.

(l)Whether the child is likely to accompany the person overseas in the event the person is removed from Australia

53.     It is common ground that it is “highly unlikely” that the child would accompany the applicant in the event that he is removed from Australia.

(m)     The circumstances of the probable country of future residence

(n)Any language barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children acquire new languages

(o)Any cultural barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children generally adapt to new circumstances

54.     Having regard to the preceding paragraph, each of these matters is “highly unlikely” to be a relevant consideration.

Conclusion regarding the best interests of the child

55.     Having regard to the evidence and the considerations referred to in paragraphs 42–53 above, the Tribunal is not satisfied that the best interests of the child favour the cancellation of the applicant’s visa.  The question is, however, whether, having regard to the evidence and the abovementioned considerations, the Tribunal should be satisfied that the best interests of the child favour the non-cancellation of the applicant’s visa.

56.     The Tribunal notes, as stated in paragraph 10.4.1(4), that “it is generally presumed that a child’s best interests will be served if the child remains with its parents”.  Although the respondent does not contend that there are any circumstances which indicate that the child’s best interests will be served by cancellation of the applicant’s visa and his removal from Australia, the fact remains that the child has had no contact with the applicant since she was one year old (that is, for the last 9–10 years) and that she has, accordingly, been separated from the applicant for the whole of that period.  It seems, furthermore, that, given the apparent wishes of the child’s mother, that separation is likely to continue indefinitely, whether or not the applicant remains in Australia.

57.     The applicant has said, however, that, if he remains in Australia after his release from prison, he will resume his efforts to contact the child and to develop a meaningful relationship with her, and he has submitted that his removal from Australia would “completely deny him” the opportunity to do that and that this would have a detrimental impact on both him and the child.

58.     Although the Tribunal accepts that the cancellation of the applicant’s visa and his removal from Australia would effectively prevent him from developing a close relationship with the child, and thereby adversely affect him in that respect, the Tribunal is not satisfied (as stated in paragraph 47 above) that the child’s continued separation from the applicant would be likely to have any adverse impact on her.

59.     Accordingly, the Tribunal concludes, having regard to the evidence and the considerations referred to in paragraphs 42–53 above, that, while the best interests of the child do not favour cancellation of the applicant’s visa, they do not necessarily favour non-cancellation of the applicant’s visa.  The Tribunal is, however, prepared to acknowledge that it may ultimately be in the child’s best interests if the applicant is able to develop a close or, at least, a meaningful relationship with her and that that possibility will be facilitated if he remains in Australia.  On that basis the Tribunal concludes that this primary consideration weighs in favour of non-cancellation of the applicant’s visa, but only slightly.

Other considerations

60.     Paragraph 11 of Direction [41] states:

“11.     Other considerations

Note: These are not primary considerations.

(1)In reaching a decision on whether to refuse or cancel a visa, other considerations, although not primary, may be relevant and, if so, must be considered.

(2)It is appropriate that these considerations, where relevant, must be taken into account but, generally, they should be given less weight than that given to primary considerations.

…”

Subparagraph (3) sets out (in paras (a)–(g)) an inclusive list of “other considerations”.  The applicant submits that the considerations referred to in paras (a), (c), (d), (e) and (g) are relevant in his case.

(a)      Family ties, the nature and extent of any relationships

61.     It is common ground that the applicant is not presently in a marital (including de facto) relationship or a close personal relationship.  There is no evidence that he owns any real estate or other substantial assets in Australia, and he is not presently employed.  The Tribunal accepts, however, that, having lived in Australia with his parents and siblings since May 1997, when he was 16 years of age, he has family and social ties with Australia which will be disrupted if he is removed from Australia.

(c)       The person’s health

62.     The applicant submits that his “mental health issues should be given favourable consideration”.  This matter can conveniently be addressed in the context of the “likely hardship” factor in paragraph 67 below.

(d)      Any links to the country to which the person would be removed

63.     Because the applicant is a citizen of New Zealand, if he were removed from Australia it is likely that he would be removed to New Zealand, although the Tribunal understands that he might instead be removed to Samoa, the country of his birth, if he so requested.

64.     The applicant concedes that he would not be likely to experience any language or cultural problems if he was removed to New Zealand or to Samoa.  He also acknowledged, in his evidence, that he has numerous extended family members in New Zealand, and especially in Samoa.

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

65.     The applicant submits that he has maintained a close relationship with his parents and siblings who are lawfully resident in Australia.  Letters of support from those family members are in evidence.

66.     The Tribunal accepts that the applicant would be likely to experience substantial emotional hardship if he were removed from Australia given that he has lived in Australia exclusively since May 1997 and his parents and siblings live in Australia.  The Tribunal has previously (in paragraph 58) accepted that the applicant’s removal from Australia would effectively prevent him from developing a close relationship with his daughter and it accepts that that would be likely to cause him ongoing emotional distress.

67.     As regards the applicant’s mental health, the Tribunal understands that prescribed medication has, since 2007, effectively controlled his psychiatric disorder and that that disorder has not continued to trouble him.  In the event that the applicant is removed to New Zealand, where the public health care system is (the Tribunal accepts) comparable to that available in Australia, the Tribunal has no reason to doubt that that medication would continue to be available to him, although it acknowledges that he would not have the supportive close family network which he enjoys in Australia.  The applicant submitted that, in the event that he was removed to Samoa, it is likely that he “would have difficulty obtaining his medication” because “the health care system in Samoa is not comparable to that in Australia”.  A short answer to that submission is that the applicant would be unlikely to be removed to Samoa (rather than New Zealand) unless he so requested.  In any event, the Tribunal is not satisfied that the applicant would be unable to obtain his medication in Samoa, although it is prepared to accept that the public health care system in Samoa is of a lower standard than that available in Australia.

68.     The Tribunal notes the applicant’s evidence that he has numerous extended family members in Samoa, that it is a close-knit family, and that there is to be a “family reunion” in Samoa around Christmas 2010.  That being the case, the Tribunal is satisfied that the applicant has extended family members in Samoa – including his maternal grandmother – who would be likely to provide him with at least moral support and a social network should he return to that country.

69.     As regards the applicant’s parents and siblings who are lawfully resident in Australia, the applicant submits, and the Tribunal accepts, that his removal from Australia would cause them emotional distress and that that distress would be “more pronounced”, given their awareness of his “mental health issues”.  As previously mentioned, letters from those family members, referring to the applicant’s mental condition and their distress at the prospect of his being deported, are in evidence.  On the other hand, as the respondent submits, those family members would presumably be able to visit the applicant in New Zealand or Samoa, from time to time, albeit at a not inconsiderable financial cost.

(g)Whether the person has been formally advised by an officer of the Department about conduct that brought the person within the deportation provisions, or the character (visa refusal and cancellation) provisions, of the Act

70. It is common ground that the applicant has never been formally advised by an officer of the Department about conduct on his part which brought him within the provisions of the Act relating to deportation or to visa cancellation on character grounds. That being the case, this factor does not weigh against the applicant.

Conclusion regarding other relevant considerations

71.     The Tribunal concludes that the considerations referred to in paragraph 61–69 above collectively militate against cancellation of the applicant’s visa.  In the Tribunal’s opinion, however, they do not so militate to a significant degree having regard to the presence of numerous members of the applicant’s extended family in New Zealand, and especially in Samoa, who would be likely to provide a supportive family and social network for the applicant, and also having regard to the likely availability to the applicant in New Zealand or Samoa of the anti-psychotic medication which the applicant requires in order to effectively manage his psychiatric condition.

Overall assessment of the primary considerations and the other relevant considerations

72.     Having considered the primary considerations and the other relevant considerations in this case, the ultimate task of the Tribunal is to determine, on the basis of the appropriate weight to be given to each of those considerations having regard to Direction [41], whether those considerations, on balance, favour cancellation or non-cancellation of the applicant’s visa.

73.     In the Tribunal’s opinion, the first abovementioned primary consideration, namely, the protection of the Australian community, should be given the greatest weight in this case.  The Tribunal has formed that opinion having regard to:

·     the very serious nature of the grievous bodily harm offence which the applicant committed on or about 21 November 2008 and for which he was sentenced to imprisonment for 3 years and 4 months on 24 March 2009;

·     the applicant’s recorded criminal history which includes several offences involving violence which have escalated in seriousness in the period 2004–2008; and

·     its assessment – on the basis of independent and authoritative assessments, namely, the sentencing remarks of Judge Scott (including references to a pre-sentence report and a psychological report) on 24 March 2009, and a parole assessment by the Prisoners’ Review Board on 29 June 2010 (see paragraphs 16, 23–24, above), and in the absence of authoritative contrary assessments – that there continues to be a high risk that the applicant will commit offences involving violence in the future.

Accordingly, that primary consideration (as previously mentioned) militates strongly in favour of cancellation of the applicant’s visa.

74.     The other three abovementioned primary considerations are, for the reasons mentioned in paragraphs 32–34, 36–37 and 42–59 above, in the Tribunal’s opinion individually, and collectively, deserving of substantially less weight than that attached to the protection of the Australian Community.  Likewise, the other relevant considerations referred to in paragraphs 61–69 above are, in the Tribunal’s opinion, collectively deserving of substantially less weight than that attached to the protection of the Australian community.

75.     Having regard to the primary considerations and the other relevant considerations in this case, it is the assessment of the Tribunal that, in the circumstances of this case, the protection of the Australian community, which strongly militates in favour of cancellation of the applicant’s visa, clearly outweighs the totality of the other primary considerations and other relevant considerations which militate against such cancellation.  The Tribunal concludes, therefore, that the balance of the primary considerations and other relevant considerations lies in favour of cancelling the applicant’s visa.

Decision

76.     For the above reasons the Tribunal affirms the decision under review.

I certify that the 76 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop

Signed:         ...............[sgd D Brodie]........................

Associate

Date of Hearing  12 October 2010
Date of Decision  15 October 2010
Counsel for the Applicant         Ms K Warman
Solicitor for the Applicant          Talbot Olivier
Counsel for the Respondent     Mr A Gerrard
Solicitor for the Respondent     Australian Government Solicitor