Charlie Junior Taire Tauariki and Minister for Immigration and Citizenship
[2013] AATA 475
[2013] AATA 475
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/1842
Re
Charlie Junior Taire Tauariki
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
Decision
Tribunal Professor Robert Deutsch, Deputy President
Senior Member A K Britton
Date 9 July 2013 Place Sydney Decision Summary
The decision under review is set aside and substituted with a decision that the Applicant’s visa not be cancelled.
..........................[SGD]..............................................
Professor Robert Deutsch, Deputy President
Catchwords
MIGRATION—Visa cancellation—Does not pass character test—Whether the applicant poses an unacceptable risk to the Australian community—Likelihood of reoffending—Offending linked to alcohol use—Whether applicant likely to remain abstinent—Positive contributions to Australian society—Best interests of minor children—International non-refoulement obligations—Whether the applicant is at risk of significant harm from a non-state actor if deported—Decision set aside
Legislation
Acts Interpretation Act 1901 (Cth) – s 15AB(1)(a)
Administrative Appeals Tribunal Act 1975 (Cth) – s 35
Crimes Act 1900 (NSW) – s 9
Direction No. 55, Migration Act 1958, Direction under section 499, Visa refusal and cancellation under s 501
Migration Act 1958 (Cth) — ss 36(2A); 499(2A); 501(2); 501(7)(c)
Cases
Minister for Immigration and Citizenship v Anochie [2012] FCA 1440
Police v Charlie Tiare Tauariki (Wollongong Local Court, Magistrate O’Connor, 11 April 2007)
Re Visa Cancellation Applicant and Minister for Immigration and Citizenship [2011] AATA 690
Tauariki v Minister for Immigration and Citizenship [2012] FCA 1408
Secondary Materials
International Covenant on Civil and Political Rights [1980] ATS 23
REASONS FOR DECISION
Professor Robert Deutsch, Deputy President
Senior Member, A K Britton
9 July 2013
Thirty-eight-year-old New Zealand citizen, Charlie Junior Tiare Tauariki, challenges the decision to cancel his Australian visa. On appeal the Federal Court quashed the decision made by the Tribunal (differently constituted) to affirm the cancellation of Mr Tauariki’s visa — a decision made by a delegate of the Minister for Immigration and Citizenship —and remitted the proceedings to the Tribunal for redetermination: (Tauariki v Minister for Immigration and Citizenship [2012] FCA 1408).
There is no issue that the power to cancel Mr Tauariki’s visa may be exercised because he does not pass the “character test” on account of having a “substantial criminal record” (ss 501(2), 501(7)(c) of the Migration Act 1958 (Cth) (the Act)). Our task is to decide whether that power should be exercised. In making that decision, we are bound to apply “Direction No. 55, Migration Act 1958, Direction under section 499, Visa refusal and cancellation under s 501” (the Direction), which came into operation on 1 September 2012 and sets out the matters that must be taken into account in exercising the visa cancellation power under s 501 of the Act (s 499(2A)).
Background
Mr Tauariki was born in Waikato, New Zealand. The youngest of four children, he came to Australia in 2000 to work at the Olympic Games and has resided here continuously since that time apart from two short visits to New Zealand.
In 2001, Mr Tauariki met his current wife (since October 2012), Ms Gail Strickland, who then had five children from a previous marriage. They began living together in 2002. The children were then minors and the youngest five years of age. Ms Strickland claims that all five children now regard Mr Tauariki as a father figure.
In addition, Mr Tauariki has two biological children with Ms Strickland who are now aged seven and two-and-a-half. He also has a twenty-year-old daughter from an earlier relationship who continues to reside in New Zealand and with whom he claims to have lost contact.
In addition to his immediate family Mr Tauariki has a number of relatives resident in Australia. Of these his relationship with his sister appears to be the most significant.
Apart from those periods where he has been incarcerated or in detention, since his arrival in Australia Mr Tauariki has been in regular employment, mainly in the construction industry. He states he is confident that if he is permitted to reside in Australia he will be able to find employment. A friend, Mark Maude, testified that he shares Mr Tauariki’s optimism and will assist him to find employment.
Criminal history
A summary of Mr Tauariki’s criminal history is set out in Annexure A to these Reasons.
Mr Tauariki was 16 years of age when he was convicted of various offences including burglary and theft. He was convicted on four further occasions in New Zealand, two involving violence: common assault and “male assaults female”.
Four months after arriving in Australia Mr Tauariki was convicted of a number of driving offences.
In May 2004 Mr Tauariki was convicted of the first of a number of offences involving violence. The victim on that and all subsequent occasions was Ms Strickland. On the first occasion, Mr Tauariki was convicted for the offences of common assault and assault occasioning actual bodily harm and given a 12-month good behaviour bond (s 9 of the Crimes Act 1900 (NSW)).
In September 2006 Mr Tauariki was convicted of offences committed in December 2005 and February 2006, including common assault (two counts), destroy/damage property and contravene apprehended domestic violence order. He was placed on a 12 month good behaviour bond and ordered to perform 200 hours of community service.
In February 2007, while still on a good behaviour bond and subject to an apprehended domestic violence order (ADVO), Mr Tauariki again assaulted Ms Strickland. On sentencing the Magistrate gave this description of the offending conduct (Transcript of Proceedings, Police v Charlie Tiare Tauariki (Wollongong Local Court, Magistrate O’Connor, 11 April 2007)):
The facts of the matter are quite serious. The parties had been at a club celebrating Valentine’s Day and also the victim’s birthday. The accused was, to some extent, affected by alcohol and after they returned to the protected person’s premises, he grabbed her by the throat, attempted to strangle her, while she was in her bed. He then head butted her and when she broke away, he chased her into the street. When the police turned up, he resisted them, initially passively, but eventually violently.
Mr Tauariki received a 12 month concurrent sentence in respect of the common assault and contravention of the ADVO. In addition, the section 9 bonds relating to the December 2005 and February 2006 offences were revoked.
In July 2008 Mr Tauariki was convicted of driving related offences, including “drive with middle range prescribed concentration of alcohol”. He was fined and disqualified from driving for 12 months.
In June 2009, eight months after being notified in writing by the Department of Immigration that consideration had been given to cancelling his Australian visa and that further offending would “weigh heavily against [him]”, Mr Tauariki was again convicted of common assault and contravention of an ADVO. On entering a good behaviour bond he was given an eight month suspended sentence.
In October 2009 and May 2010 Mr Tauariki was again convicted of contravening an ADVO, and on both occasions sentenced to one month imprisonment.
In March 2011, Mr Tauariki was convicted of a number of driving offences including “drive with middle range prescribed concentration of alcohol”. He received a 12 month suspended sentence on entering a good behaviour bond and was disqualified from driving for three years.
Two months later Mr Tauariki again assaulted Ms Strickland. He was convicted of a number of offences including common assault and contravention of an ADVO. The suspended sentence imposed in respect of the driving offences was revoked and Mr Tauariki was given a 12 months sentence (nine months non-parole). In addition he was made subject to a two year ADVO.
On expiration of that custodial sentence in May 2012 Mr Tauariki was released into immigration detention where he remains to this day. Since his arrival in Australia Mr Tauariki has served four separate custodial sentences:
RELEVANT LAW AND POLICY
The purpose of the Direction is to “guide decision-makers performing functions or exercising powers under s 501 of the Migration Act to refuse to grant a visa to, or to cancel the visa of, a person who does not satisfy the Minister that the person passes the character test”. The Direction sets out a number of principles that provide a framework for decision-makers in approaching the task of deciding whether to cancel the visa of a person who does not satisfy the character test:
6.3 Principles
Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly and disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
In some circumstances, criminal offending or other conduct and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the Visa.
Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, or contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community from most of their life, or from a very young age.
Australia has a low tolerance of any criminal or other serious conduct by Visa applicants or those holding a limited stay Visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a Visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizens Visa should be cancelled, or the Visa application refused.
Paragraph 7 of the Direction states that a decision-maker, informed by the principles outlined above:
(a) must take into account the primary and other considerations referred to below, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; and
(b) is required to determine whether the risk of future harm by a non-citizen is unacceptable. This requires a balancing exercise, involving a consideration of the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community.
The Direction lists a number of “primary” and “other” considerations that must be taken into account where relevant (paras 7(1)(a) and 8(1)). The Direction instructs that “primary considerations” should generally be given greater weight than the “other considerations” and that one or more primary considerations may outweigh other primary considerations (paras 8(4) and (5)).
The four primary considerations are:
·the protection of the Australian community from criminal or other serious conduct;
·the strength, duration and nature of the ties that Applicant has to Australia;
·the best interests of any minor children in Australia;
·whether Australia has international non-refoulement obligations to the Applicant.
Primary consideration 1 – Protection of the Australian Community from Criminal or Other Serious Conduct
The Direction instructs that when considering the protection of the Australian community decision-makers should have regard to the principle that:
[t]he Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Decision-makers must also give consideration to:
(a) The nature and seriousness of the person’s conduct to date; and
(b) The risk to the Australian community should the person commit further offences or engage in other serious conduct.
(i) The nature and seriousness of the conduct
In considering the nature and seriousness of Mr Tauariki’s conduct the Direction instructs that we must have regard to the following factors:
(a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b) The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(c) Where the person is in Australia, that a crime committed while the person was in immigration detention; during an escape from immigration detention; or after the person escaped from immigration detention, but before the person was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
(d) The principle that any conduct that forms the basis for a finding that a person does not pass the character test under s501(6)(b) or (d), or is not of good character under s501(6)(c), is considered to be serious;
(e) The sentence imposed by the courts for a crime or crimes;
(f) The frequency of the person's offending and whether there is any trend of increasing seriousness;
(g) The cumulative effect of repeated offending;
(h) Whether the person has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(i) Whether the person has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the person's migration status (noting that the absence of a warning should not be considered to be in the person's favour);
(j) Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
Mr Tauariki has a long history of disobedience to the law commencing when he was a juvenile. Since May 2004 Mr Tauariki has assaulted Ms Strickland on seven separate occasions. On all but the first, he was subject to an ADVO and in most cases, a bond to the court to be of good behaviour.
As reflected in the sentences imposed, none of the offences for which Mr Tauariki has been convicted could be described as falling at the high end of the scale in terms of seriousness. Nonetheless all involving violence must be viewed “very seriously” (para 9.1.1(1)(a)). While Ms Strickland does not fall within the categories of persons listed by the Direction as examples of “vulnerable members of the community” — minors, the elderly or disabled — as a repeat victim of domestic violence, and the mother of small children, her circumstances in our opinion make her a vulnerable member of the community.
Mr Tauariki has a seven-year history in Australia of alcohol-fuelled domestic violence which has not been moderated by custodial sentences, court orders or the prospect of deportation. Nonetheless while his conduct has been unremitting the available evidence does not suggest that there has been an escalation in the seriousness of the nature of the offences.
Mr Tauariki has not been charged with any offences while in immigration detention and reports of his conduct have been favourable as have those relating to his most recent period in custody. The available evidence suggests that Mr Tauariki was also well-behaved during earlier periods in custody.
Since his arrival in Australia, apart from the driving offences, Mr Tauariki’s offending conduct has been largely confined to the home. The weight of evidence suggests that if Mr Tauariki were to reoffend the most likely victim would be Ms Strickland, or, possibly a future partner. The effect on Ms Strickland has been significant and caused her to be fearful for her safety, to such an extent that she has reported the conduct to police and applied for apprehended violence orders. While there is no evidence and nor had it been suggested that Mr Tauariki has been, or might be, violent towards his children, if, in the future they were to witness an assault on their mother it is likely they would be adversely effected. While to date there have been no victims of Mr Tauariki’s driving offences, if he were to drive while intoxicated as he has in the past, members of the Australian community would be at risk.
In our opinion Mr Tauariki’s criminal conduct to date can only be regarded as very serious.
(ii) Likelihood of reoffending
Paragraph 9.1.2(1) directs that, in considering whether Mr Tauariki represents an unacceptable risk of harm, we must:
[H]ave regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. In making this assessment, decision-makers must have regard to, cumulatively:
(a) The nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and
(b) The likelihood of the person engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the person re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The parties agree that central to the likelihood of Mr Tauariki reoffending is whether he abstains from alcohol use when released into the community.
History of alcohol use
According to Mr Tauariki, he commenced consuming alcohol at a young age but his drinking only became problematic after the death of his mother in 2004. His sister, Ms Charlotte Tauariki, corroborated that claim. He claims that since that time except while in custody or detention he has been drinking heavily, often binging. He claims that he was generally able to confine his drinking to weekends. That claim is consistent with his strong employment history and the evidence given by Mr Maude.
Mr Tauariki claims and we accept that despite having the opportunity to do so, he has not consumed alcohol since entering custody over two years ago.
Commitment to abstain
Mr Tauariki claims he now recognises the destructive influence alcohol has had on him and his family and is committed to continue to abstain from alcohol use. His sister and wife each claim that they have observed a marked change in Mr Tauariki over the past 12 months and believe his commitment to change to be genuine. In a letter to the Department of Immigration in 2008 in support of Mr Tauariki remaining in Australia, Ms Strickland wrote that she was confident that he would not resume alcohol use. In these proceedings she testified that at that time her stated belief was genuinely held. She claims that she is now “very confident” her husband will not relapse because, among other things, he has matured and now realises he will lose his family if he relapses. On her account the reason she decided to marry Mr Tauariki last year, after a seven year engagement, was because she believed his promise not to drink was genuine. Ms Strickland testified that she will not tolerate any return to alcohol use and has told Mr Tauariki that, if he does so, she will ring the police immediately and their relationship will be at an end.
Expert opinion
At the request of the Minister, Mr Tauariki was assessed by clinical psychologist, Dr Christopher Lennings in June 2012. Dr Lennings prepared a written report dated 27 June 2012. Prior to giving evidence in these proceedings, Dr Lennings was provided with additional material created after that report was prepared.
Dr Lennings wrote that the likelihood of Mr Tauariki reoffending turns largely on his ability to continue to abstain from alcohol use. He pointed out that alcohol abuse is a chronic relapsing condition and while Mr Tauariki was “strongly motivated” to remain sober and would probably remain so for some time, his history suggests that it will be difficult for him to do so in the long term “without significant support”. In his opinion two factors will play a large role in Mr Tauariki’s risk of relapse: the presence of stress in his life and peer pressure.
In June 2012 Dr Lennings wrote that while the gaol-based treatment undertaken by Mr Tauariki was a “good starting point” a comprehensive treatment plan was necessary if he were to achieve long term abstinence. He recommended that Mr Tauariki:
(a)Receive behavioural counselling and treatment to address his “maladaptive response to stress”. In Dr Lennings’ opinion skills such as mindfulness, stress inoculation and mood management would assist in this regard.
(b)Participate, along with Ms Strickland, in counselling to work on aspects of their relationship that have been the source of stress and conflict in the past. In Dr Lennings’ opinion it is critical that Mr Tauariki acquire skills to deal with his relationship problems.
(c)Receive treatment to target his alcohol use. Dr Lennings recommended a three-pronged strategy: (i) attendance at a service to build on relapse prevention skills he has already learnt through “Getting SMART” [Self-Management and Recovery Training, a structured drug and alcohol program]; (ii) use of medication such as Naltrexone®; and (iii) random testing to ensure medication compliance. Dr Lennings explained that Naltrexone® is used to inhibit a person’s craving for alcohol and, according to the literature is highly successful in managing problematic alcohol use. According to Dr Lennings its success depends on whether the person continues to take the drug, and can tolerate the drug’s not insignificant side effects.
(d)Appoint a case manager to assume responsibility for supervising his medication compliance and attendance at treatment. According to Dr Lennings this appointment should be for a period of at least 12 months.
Before considering Dr Lennings’ opinion on the issue of recidivism it is useful to set out the evidence about the efforts made by Mr Tauariki to implement these recommendations.
Steps taken to implement Dr Lennings’s recommendations
Mr Tauariki claims that he has taken the following steps to implement the recommendations made by Dr Lennings:
(a)Undertaking counselling for grief and anger management (Mr Tauariki reported unresolved issues following the death of his mother and elder sister within 12 months of each other)
(b)Undertaking structured relaxation courses
(c)Attending courses such as “Worry Busters” to acquire skills to learn to deal with, and identify the triggers, of stress
(d)Undertaking a structured exercise program: Mr Tauariki claims that while in detention he has pursued a vigorous fitness program and is a strong advocate within the detainee community of the benefits of using exercise as a means to reduce stress
(e)Undertaking responsible roles within the detention centre: Mr Tauariki claims that he is one of a handful of detainees entrusted with roles such as running music classes and movie evenings
(f)Attending church services three times a week: Mr Tauariki claims his involvement with his church assists him to remain focused on his “new life”. On his account while in custody he has been “baptised again”. Pastor Alosio Waininau in a letter of support for Mr Tauariki wrote that over the ten months to April 2013 he has known Mr Tauariki he has observed a “very positive change and great personal growth”. In his opinion, Mr Tauariki has developed a deep desire to serve God and the people around him. Prison chaplain, Brian Wilson, wrote in May 2012 that Mr Tauariki has been a regular attendee at chapel services.
(g)Taking steps to participate in a Naltrexone® trial: In March 2013 Mr Tauariki consulted the medical services provider in Villawood detention centre about the possibility of commencing Naltrexone® as recommended by Dr Lennings. At the date of hearing Mr Tauariki was awaiting the results of testing which would determine whether he would be suitable to commence a Naltrexone® trial.
Mr Tauariki also points to the notes made by counsellors and various health professionals he has consulted throughout his period in detention (see for example, Exhibit A2, Annexure B). These reports are consistent with his claim of having energetically pursued counselling and anger management and stress minimisation courses since being provided with Dr Lennings’ report 12 months ago.
Post-release plans
Mr Tauariki and Ms Strickland testified that if permitted to remain in Australia they will live together with the children. Ms Tauariki claims that she will do everything in her power to assist her brother maintain an alcohol-free life.
Ms Strickland claims that she is also committed to supporting her husband implement the recommendations made by Dr Lennings. She says that she has already made enquiries about the availability of alcohol and relationship counselling within her local area. Mr Tauariki gave evidence about the enquiries he has made about the availability of counselling services on release.
Peer association
Mr Tauariki claims that he is confident that his friends will not pressure him to drink and will respect his decision to abstain. He also claims that he has decided not to associate with those friends who drink to excess.
In cross-examination Mr Maude did not agree with the proposition that if Mr Tauariki were to join him in coaching junior football and playing in a masters team, he would be exposed to a drinking culture and at risk. According to Mr Maude drinking was not permitted in association with junior football and there was not a drinking culture in masters football. He claimed that in masters football after the game the players just go home to their respective families. He agreed that in 2011 he and Mr Tauariki used to go out with their respective families and have a few beers.
Dr Lennings’ opinion about Mr Tauariki’s risk of recidivism
Dr Lennings considered that Mr Tauariki’s risk of relapse remained high despite those factors protective against him re-offending, including: the genuine and reciprocal love between Mr Tauariki and Ms Strickland; Mr Tauariki’s commitment to their children; his good orientation to employment; the absence of any significant mental illness or personality disorder; and, the strong social support he can expect to receive from his immediate family and sister.
He concluded in his report:
Should a suitably comprehensive treatment plan be initiated Mr Tauariki’s probable risk of re-offending will diminish significantly, and given the history likely be of little risk at all. However, if such a treatment plan is unable to be implemented, then on the basis of the assessment risk will remain moderately high that a further domestic violence incident will occur should he return to alcohol use.
Dr Lennings stated that notwithstanding the positive steps taken by Mr Tauariki in the 12 months since he wrote his report, his opinion remained unchanged. Dr Lennings stated that in reaching that conclusion he had accepted that Mr Tauariki: had been “dry” for some time; was sincere in his stated desire to remain so; had undertaken many of the treatment measures that he had recommended, or at least those available to him in detention; and now appeared to demonstrate a greater degree of self-awareness than he had when interviewed 12 months ago. Dr Lennings emphasised that it was critical that Mr Tauariki engage in all aspects of the treatment plan before he could be confident Mr Tauariki would be able to maintain long term sobriety.
Protection of the community: conclusions
The parties agree that central to this Consideration is whether Mr Tauariki is able to realise his stated commitment of maintaining sobriety in the community. The Minister accepts that Mr Tauariki is sincere in his desire to remain sober but doubts his capacity.
The weight of evidence indicates that when sober Mr Tauariki is hard-working, pro-social and loving to his family, and when intoxicated, violent towards his wife and disobedient to the law. We do not accept as suggested by Counsel for the Minister that little has changed since Mr Tauariki wrote to the Department in September 2008 claiming that he had “changed his way for the better” (documents provided under s 501G of the Act at p149). In reaching that opinion we note that his current period of sobriety is probably the longest in his adult life and in that time he has not only gained insight into the link between his drinking and violent conduct but made genuine attempts to implement Dr Lennings’ treatment recommendations. Of particular significance in our view is Mr Tauariki’s realisation that he has a serious alcohol problem and that abstinence is the only solution. While not possible to say with certainty when he came to this realisation we note that as late as February 2011, despite a significant history of alcohol-fuelled violence and having undertaken a number of alcohol rehabilitation programs, Mr Tauariki apparently held the opinion that his alcohol use was not problematic and could be controlled (see case note 10 March 2011, Documents provided under s 501G of the Act at p 277).
Mr Tauariki faces a Catch-22 situation. While in detention he cannot demonstrate that on release he will, as claimed, put in place Dr Lennings’ recommendations. As Dr Lennings points out, even with the best will in the world he may be unable to obtain the recommended treatment, pointing out, for example, the difficulties he may face in obtaining an appropriate person to “case manage” its implementation. Nonetheless Mr Tauariki is not without support. We accept that Ms Strickland and Ms Tauariki are genuinely committed to assisting Mr Tauariki remain sober, to the extent their resources permit.
While alcohol abuse is a chronic condition it is common knowledge that some sufferers are able to achieve lifelong abstinence. We think that Mr Tauariki is now much better placed to achieve long term abstinence than in the past: he has the benefit of, and in our opinion, has accepted, Dr Lennings’ considered opinion; he has built on the piecemeal rehabilitation he has previously undertaken; he can expect to receive the support of his sister and wife. Having had the benefit of Dr Lennings’ opinion, they now appreciate that if Mr Tauariki is to remain sober he must undertake a comprehensive treatment plan and their support is critical. Coupled with the protective factors identified by Dr Lennings, leads us to conclude that the risk of Mr Tauariki relapsing is now materially less than before he entered custody.
Nonetheless despite these positive indicia there remains a risk that Mr Tauariki will not succeed in breaking the cycle of alcohol abuse which has dominated his life for at least the past seven years. Of concern is Mr Tauariki’s plan to return to football and the construction industry, where some exposure to a heavy drinking culture is inevitable. If Mr Tauariki were to relapse into alcohol use it is highly probable, that the cycle of alcohol fuelled offending would resume.
The task of determining whether Mr Tauariki will relapse into alcohol use does not lend itself to a formulaic assessment. While the risk of relapse into alcohol use is significantly less than it was when Mr Tauariki entered custody, or indeed even 12 months ago, the risk is nonetheless real.
The serious nature of the crimes committed by Mr Tauariki and the material risk that he will reoffend, leads us to conclude that the protection of the Australian community weighs in favour of visa cancellation.
Primary Consideration 2 – Strength, duration and nature of the person’s ties to Australia
With regard to the strength, duration and nature of the Applicant’s ties to Australia, para 9.2(1) of the Direction states that decision-makers must have regard to:
…
(a)How long the person has resided in Australia, including whether the person arrived as a young child, noting that:
(i) Less weight should be given where the person began offending soon after arriving in Australia; and
(ii) More weight should be given to time the person has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family, social and/or employment links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
As noted Mr Tauariki was 24 years of age when he arrived in Australia and has now lived here for 13 years. Four months after his arrival he was convicted of driving offences.
There is some evidence of Mr Tauariki making a positive contribution to the Australian community. Ms Strickland says that at least during those periods where they lived together he was a loving and devoted partner and father. In a statement prepared for these proceedings, step-daughter, Rachel Rarity, who is now a young adult, stated that when she was a teenager she became involved with the “wrong crowd” and Mr Tauariki stepped in and with his assistance she straightened herself out. Mr Maude holds the opinion that Mr Tauariki has made a positive contribution to the Australian community by playing and coaching rugby. Ms Debbie Bevilacqua stated when her partner passed away Mr Tauariki provided a great deal of emotional support to herself and her children. Former employer, Mr Richie Keen attested that Mr Tauariki was a good and reliable employee and, cited an occasion, where without payment Mr Tauariki assisted him to modify the family home of a young disabled boy. We have noted above the positive comments made by the church leaders who have had some involvement with Mr Tauariki since he entered custody in 2011.
As mentioned, in addition to his immediate family Mr Tauariki has a large extended family in Australia. We accept that he has significant links to persons within the Australian community, who have an indefinite right to remain here.
Conclusion: Primary Consideration 2
This Consideration requires us to take into account both the length of time Mr Tauariki has resided in Australia and the strength, duration and nature of any links to the Australian community. Counting in Mr Tauariki’s favour are his significant links to persons who have an indefinite right to remain in Australia. While he has resided in Australia for over 13 years and made some positive contributions to this country, given that he was an adult on arrival, and commenced offending soon after his arrival, this element of the Consideration assists Mr Tauariki but not to any great extent. Having regard to both elements of this Consideration we are of the opinion that it marginally weighs against cancellation.
Primary Consideration 3 — Best interests of minor children in Australia
This Consideration requires us to decide whether cancellation is, or is not, in the best interest of any child under 18 years of age who might be affected by that decision (para 9.3(1)).
Where, as in this case, more than one child is relevantly affected, the best interests of each child must be given individual consideration to the extent that their interests may differ (para 9.3(3)). The Direction instructs that where relevant the following must be considered:
(a) The nature and duration of the relationship between the child and the person with less weight generally been given where the relationship is non-parental and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b) The extent to which the person is likely to play a positive parental role in the future, taking into account the length of time remaining until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c) The impact of the person’s prior conduct, and any likely future conduct and whether that conduct has, or will have, a negative impact on the child;
(d) The likely effect that any separation from the person would have on the child, taking into account the child's ability to maintain contact in other ways;
(e) Whether there are other persons who already fulfil a parental role in relation to the child;
(f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g) Evidence that the person has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the person’s conduct.
On the available evidence it would appear the following children may be affected by a decision to cancel Mr Tauariki’s visa:
·His step-son now aged 16 (the step-son)
·Mr Tauariki’s biological children: a daughter aged eight, and a son aged two.
·Mr Tauarik’s two step-grandchildren, the children of Ms Rarity.
We have made orders under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) prohibiting the publication of the names of any minors referred to in these proceedings. Adopting the pseudonyms used by the Tribunal in the original proceedings, in these reasons we will refer to Mr Tauariki’s biological daughter as “Miss A”, his biological son as “Master T”, and his step-son as “Child C”. All other children will be given a generic descriptor.
Before considering the interests of these children it is useful to examine the amount of time Mr Tauariki and Ms Strickland lived together. As noted they commenced together in about 2002. In addition to about three years spent in either custody or detention, Mr Tauariki has spent significant periods living away from the family home, apparently because he and Ms Strickland had separated and/or he was prohibited from residing with her under the terms of an ADVO. Ms Strickland and Mr Tauariki each testified that there were significant periods of separation but neither could recall the details of those periods with any degree of accuracy.
Counsel for both parties acknowledge the available material does not disclose the exact periods Mr Tauariki was subject to, and, in some cases, the terms of, any ADVO. The contemporary notes made by officers of the NSW Probation and Parole Service and the Department of Corrective Services, provide some indication of the periods Mr Tauariki was not residing with Ms Strickland and the children. Based on those notes we think it probable that he was not living with Ms Strickland throughout the following periods:
Ms Strickland’s evidence
Ms Strickland claims that Mr Tauariki has been a loving father to his step-children and treated them as his own. She testified that during those periods he was living with the family Mr Tauariki assisted her with the care of the children and provided much needed financial support. Mr Maude and other friends of Mr Tauariki made similar claims.
According to Ms Strickland her former husband has played no role in the life of their children since they separated over ten years ago. On Ms Strickland’s account Mr Tauariki took on the role of a father figure during that period. She claims that when she and Mr Tauariki lived apart, she was both “mother and father” to the children.
Interests of the step-son
Child C who is now 16, was five years of age when Mr Tauariki commenced living with his mother. On her account when living with the family Mr Tauariki assisted the child with his homework and taught and encouraged him to play football. She claims that Mr Tauariki has had a “big impact” on the child and he would be devastated if he were to be deported.
Child C lived continuously with Mr Tauariki from age five to ten and on and off until he was 14 years of age. We accept that when he lived with the family, Mr Tauariki took on a parental role. However the evidence suggests he played little if any role during those periods he was not living with the family. Nonetheless Mr Tauariki has been the only father figure in the child’s life for over a decade and we accept that the relationship between the two is a significant one. Any future parental role (in the sense used by the Direction) will be for a relatively short period because the child will soon turn 18.
According to Ms Rarity on those occasions Mr Tauariki came home drunk, which she insisted were infrequent, she shepherded the children into her bedroom and if, after 30 minutes or so, the arguing continued she would ring the police. There is no evidence and nor is it suggested that Child C, or any other child, was the victim of physical violence by Mr Tauariki. Nor is there any evidence of Child C suffering any trauma or other adverse consequence as a result of his exposure to domestic violence. It is improbable however that Child C would not have been distressed with even indirect exposure to violence within the home. Nonetheless we accept that on balance Mr Tauariki’s influence has largely been positive. We agree with Dr Lennings’ assessment that Mr Tauariki’s continued presence in the lives of his stepson (and biological children) is likely to have a positive impact providing that he abstains from alcohol and violent behaviour.
Ms Strickland testified that she would not follow Mr Tauariki if he were to be deported because to do so would mean leaving her elderly mother, her (adult) children, her grandchildren and support networks within Australia. If Mr Tauariki were to return to New Zealand we think it unlikely that contact with Child C would be maintained. We have no evidence about their ability or willingness to maintain contact by some other menas such as Skype or Facebook. Nor do we have any evidence about the views of the step-son about the prospect of Mr Tauariki’s deportation.
Ms Strickland has stated that if Mr Tauariki were to resume alcohol use she would permanently end their relationship. While in the past she has ended their relationship only to later relent we have concluded that she is unlikely to do so again. Her decision to marry Mr Tauariki was not lightly taken. Central to that decision was Mr Tauariki’s promise that he would not resume alcohol use. In our opinion if he were to break that promise it is likely that Ms Strickland would carry through on her threat to terminate the relationship. It follows that even if Mr Tauariki were to resume alcohol use the child’s exposure to domestic violence is likely to be brief.
In our opinion the step-son would be adversely affected if Mr Tauariki’s visa were to be cancelled because he would be deprived of the opportunity of resuming a relationship with the only father figure he has known since he was a young boy. In our opinion visa cancellation would not be in the best interests of Child C.
Interests of Miss A and Master T
According to Ms Strickland, Miss A is the “apple of her Daddy’s eye” and Master T is “all over his Dad” during visits in detention. Mr Tauariki has lived apart from Miss A for four years and five months of her eight years. Master T who is two years and eight months of age, has lived with his father for only two months.
Despite the limited time Mr Tauariki has spent with each child, especially Master T, we accept that he loves them and this is reciprocated. Apart from their mother, Mr Tauariki is the only person who has played a parental role in their respective lives.
Dr Lennings is of the opinion that if Mr Tauariki were to be deported the loss for Miss A would be “particularly keen” and likely to have a significant impact on her. In his opinion it would also deprive Master T of the opportunity of forming an attachment to, and knowing, his father, and this is likely to have an impact on his identity and sense of self. As Dr Lennings pointed out, these positive factors must be countered against the possible harm to the children if they were to witness their father being drunk and violent.
The views of the children are unknown; indeed there is no evidence that they are aware that their father might be deported. It is unlikely, given Master T’s age, that he would comprehend what this means.
There is no evidence to suggest that either child has experienced any physical or emotional trauma arising from their father’s misconduct although it is improbable that they would not have suffered some distress.
For the reasons discussed above in relation to Child C, it is unlikely that if Mr Tauariki were to return to New Zealand, contact with either child would be maintained.
In our opinion each child would be adversely affected if Mr Tauariki’s visa were to be cancelled. Miss A would be deprived of the opportunity of continuing a relationship with her father with whom she has formed an attachment; Master T would be deprived of the opportunity of getting to know, and forming an attachment with, his father. In our opinion visa cancellation would not be in the best interests of either child.
Interests of the step-children
Mr Tauariki has two step-grandchildren, the children of Ms Rarity.
Ms Rarity returned to live in the family home when she was pregnant with her youngest child and remained until four months after his birth. She is currently living in the family home and expects to continue to do so for a further 12 months. Her children are now five and three years of age.
According to Ms Rarity when her youngest child was born Mr Tauariki would often look after him so she could get some sleep. On her account Mr Tauariki is affectionate and always has time for her children and they would be devastated if they could not see “Pop” again. It is unclear whether the children’s father plays any role in their lives. While Mr Tauariki does not play a parental role we accept that his role in the lives of his grandchildren is significant.
Like the other children, the grandchildren have also been indirectly exposed to Mr Tauariki’s violent behaviour.
If Mr Tauariki were to be deported it is unlikely the children would maintain physical contact with their grandfather given that their mother is unlikely to be ableto afford to travel to New Zealand.
Given that Mr Tauariki has not and is unlikely to take on a parental role in respect of his grandchildren, their interests would not be as directly affected as those of Miss A, Master T and Child C. Nonetheless the cancellation of his visa would result in the loss of a loving adult from their lives, and perhaps more importantly, the loss to their mother, of a loving and supportive father figure. It goes without saying that Ms Rarity’s well-being is critical to her children’s well-being. To this limited extent it would not be in their best interests for Mr Tauariki’s visa to be cancelled.
Great nieces and nephews
Little evidence was provided about the relationship between Mr Tauariki and his sister’s grandchildren. We are unable to make any findings about the likelihood of their interests being affected if Mr Tauariki were to return to New Zealand.
Primary Consideration 3 — Conclusion in respect to the best interests of the children
We are of the opinion that it is in the best interests of Miss A, Master T, Child C and, to a lesser extent, his two step-grandchildren, for Mr Tauariki’s visa not to be cancelled. In reaching this conclusion we accept that if he were to resume violent conduct this could have a negative impact upon these children. Given our finding that any exposure to that conduct is likely to be short-lived on account of Ms Strickland’s intention to end the relationship, on balance in our opinion the best interests of the children will be served, if Mr Tauariki’s visa was not cancelled.
This Consideration weighs against the cancelling of Mr Tauariki’s visa.
Primary Consideration 4 – Whether Australia has international non-refoulment obligations to the applicant
The Direction requires that, among other things, decision-makers take into account “whether Australia has international non-refoulement obligations to the person”. Mr Tauariki submitted that a necessary and foreseeable consequence of being deported to New Zealand is that he would suffer significant harm from the Mighty Mongrel Mob, a notorious New Zealand criminal gang of which he was once a member. Because of this, he submits that Australia’s obligations under the principle of non-refoulement are enlivened.
The parties agree that the relevant international obligations are those under the International Covenant on Civil and Political Rights [1980] ATS 23 (‘the ICCPR’), specifically, Articles 6(1) and 7:
Article 6
1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
…
Article 7
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.
In Minister for Immigration and Citizenship v Anochie [2012] FCA 1440, Perram J considered the application and interpretation of the non-refoulement obligation referred to in Direction 41, the predecessor to the current Direction. His Honour stated at [66] that the question posed by the Direction is whether “a necessary and foreseeable consequence of deportation would be a real risk of irreparable harm”.
The parties agree that the test to be applied under the current Direction is whether there is a real risk that the person will suffer significant (as opposed to irreparable) harm. However they disagree about the meaning to be given to the word “significant”. Mr Tauariki contends that consistent with s 15AB(1)(a) of the Acts Interpretation Act 1901 (Cth) it should be given its ordinary meaning: “important, of consequence”. The Minister contends, and we agree, that in accordance with the Direction the term “significant harm” should be given the meaning ascribed by the Migration Act. Section 36(2A) and 36(2B) of the Act provide:
(2A) A non-citizen will suffer significant harm if:
(a)the non-citizen will be arbitrarily deprived of his or her life; or
(b)the death penalty will be carried out on the non-citizen; or
(c)the non-citizen will be subjected to torture; or
(d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)the non-citizen will be subjected to degrading treatment or punishment.
(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or
(b)the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or
(c)the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
The parties agree that that the types of “significant harm” contemplated by the Direction, are not confined to harm that may be inflicted by the state or its agents, but includes harm that might be inflicted by non-state actors, such as the Mighty Mongrel Mob. The issue between the parties is whether there is evidence to support the claim of there being a real risk that if he were to return to New Zealand and fall into the hands of the Mighty Mongrel Mob, Mr Tauariki might suffer significant harm. We understand him to argue that the type of harm he might suffer is that described in paras (a), (c), (d) and (e) of s 36(2A).
Mr Tauariki claims that he started associating with the Mighty Mongrel Mob when he was in his mid-teens. He claims that his life has been threatened by the gang:
I have been threatened with my life because I knew what was going on in the Gang and I really felt scared they would come after me because I wanted to leave the Gang because it was getting a lot worse and there was nothing the police could do about it …
He states that he has formed the opinion that the New Zealand police would be unable to protect him:
The New Zealand police wouldn’t be able to protect me because they have in the past had police officers paid off and I don’t trust them. They cannot control what is going on out there in the real world today. They say they are managing to protect the community from these kinds of things but the real truth is they cannot.
The evidence given by Mr Tauariki about the type of harm he might suffer if he were to return to New Zealand was general in nature and largely unsupported. Even if accepted that there is a real risk of him being targeted by the Mighty Mongrel Mob there is no evidence to support Mr Tauariki’s belief that the police would be powerless to protect him. By the operation s 36(2B) any risk posed by the Mob cannot be taken to be a real risk that Mr Tauariki will suffer significant harm. It follows that the facts of this case do not enliven Australia’s non-refoulement obligations.
Other Considerations
Paragraph 10 of the Direction provides a non-exhaustive list of other considerations which must be taken into account where relevant.
The effect of cancellation of Mr Tauariki’s visa on his immediate family in Australia (para 10(1)(a))
Ms Strickland, Ms Rarity, Ms Tauariki and the minor children discussed above are likely to be affected by the cancellation of Mr Tauariki’s visa.
We accept that Ms Strickland would be deeply upset if Mr Tauariki were to be deported. Not only would she lose a partner, she would be forced to continue to shoulder responsibility for raising three children alone. As her sole source of income is apparently social security benefits it is unlikely that she would be able to regularly travel to New Zealand on a regular basis.
We also accept that Ms Rarity who looks to Mr Tauariki as a father figure would, as claimed, be devastated if he were to be deported.
Ms Tauariki would also be adversely affected. Mr Tauariki is her only remaining sibling and the two are close. As she is in employment she is likely to be able to afford to visit and maintain contact with Mr Tauariki if he were to return to New Zealand.
On the available evidence it is not possible to make any findings about the likely affect of Mr Tauariki’s deportation on his three other adult step-children who have apparently lived away from the family home for some years.
This Consideration weighs in Mr Tauariki’s favour.
The impact of a decision not to cancel Mr Tauariki’s visa on members of the Australian community, including his victims
Ms Strickland has been the main victim of Mr Tauariki’s criminal conduct. She strongly supports her husband’s application to remain in Australia. In the short term at least it is likely that the impact of a decision not to cancel would be positive. Whether it continues to be so is dependent on whether Mr Tauariki resumes alcohol use.
Similarly whether the impact of Mr Tauariki remaining in Australia is likely to be positive vis a vis the Australian community turns on whether he resumes alcohol use.
The extent of any impediments Mr Tauariki may face if removed from Australia
Mr Tauariki is relatively young and in excellent health. He spent his formative years in New Zealand and would not face any language or cultural barriers if he were to return. Nor could it reasonably be argued that he would be disadvantaged on account of the social, medical and/or economic support (or lack of) available in New Zealand. We accept however that without the family support he is likely to receive in Australia Mr Tauariki is more likely to relapse into alcohol use. According to Mr Tauariki the major impediment he would face on returning to New Zealand is the lack of a supportive network of family and friends together with the potential threat posed by the Mighty Mongrel Mob. While Mr Tauariki has many more relatives in Australia nonetheless he is not without family in New Zealand: he has a 19 year old daughter, 20 aunts and uncles and 100 cousins. While we accept that since arriving in Australia he has had limited contact with these family members it seems improbable that none would provide any support on his return. Further, as the many letters tendered in support of his application to remain in Australia reveal, Mr Tauariki is sociable and well regarded by friends and employers. This suggests that he would be able to develop social networks in New Zealand with relative ease. For the reasons given on the available evidence we are not satisfied that Mr Tauariki is likely to be at risk from members of the Mighty Mongrel Mob if he were to return to New Zealand.
It is unlikely that Mr Tauariki would face any significant impediments in establishing himself, and maintaining basic living standards, in New Zealand.
In our opinion the main impediment Mr Tauariki would face on return to New Zealand would be that without the support he can expect to receive from Ms Strickland and his sister, he faces a greater risk of relapse into alcohol use.
Mr Tauariki is assisted by this Consideration, but only to a small extent.
Should the power to cancel Mr Tauariki’s visa be exercised?
The exercise of the discretion to cancel Mr Tauariki’s visa requires us to take into account any relevant primary and other considerations and make a determination about whether the risk of further harm to the Australian community by Mr Tauariki is “unacceptable”. That decision must be informed by, among other things, the Principles contained in the Direction, which include the propositions that remaining in Australia is a privilege conferred in the expectation that the non-citizen will not cause or threaten harm to individuals, and, a non-citizen who has committed a serious crime should generally forfeit the privilege of staying in Australia. It goes without saying that Mr Tauariki has failed to meet the expectation that he will be law-abiding and not cause harm to the Australian community (para 9.1 of the Direction).
As the Tribunal (Justice Downes, President, and Senior Member McCabe) observed in Re VisaCancellation Applicant and Minister for Immigration and Citizenship [2011] AATA 690 at [49]:
The balancing process contemplated by the Direction is not a simple mechanical exercise. One does not reach a conclusion by assigning values to particular considerations and tallying the differences. Beginning with each of the primary considerations — and without forgetting other considerations that are generally regarded as being of lesser weight — we must ask ourselves: what is the preferable decision in this case?
While these comments were made in relation to the predecessor to the current Direction, the task, and its inherent difficulty, remains the same.
It is not suggested that the harm likely to be caused if Mr Tauariki were to reoffend could be considered so serious that any risk of re-offending is unacceptable (par 6.3(3)). Nonetheless if he were to reoffend the harm caused is likely to be serious. While the risk of Mr Tauariki re-offending in our opinion is significantly less than when he entered custody over two years ago, nonetheless the risk remains real. The Consideration of the protection of the Australian community weighs in favour of visa cancellation.
Because he was an adult on arrival in Australia and within a relatively short period started offending he is not entitled to the “higher level of tolerance” of criminal conduct that the Direction states may be afforded to a person who has lived in the Australian community for much of their life, or, from a very young age (para 6.3(4)).This also weighs in favour of visa cancellation. Also weighing in favour of cancellation is the fact that Mr Tauariki would not suffer any significant impediments if returned to New Zealand.
Weighing in Mr Tauariki’s favour are his significant links with, and to a lesser extent evidence of some positive contribution made to, the Australian community.
Of the factors that weigh in his favour the interests of his children are in our opinion the most significant. Despite the lengthy period he has lived apart from his family, in our opinion it is nonetheless in the best interests of his three minor children that he remain in Australia. Also counting in his favour is the probable impact of visa cancellation on members of his immediate family.
We agree with Dr Lennings’ assessment: Mr Tauariki may go either way. He is a man of mature years and has a long history of alcohol abuse and violence, especially domestic violence. He ignored the warning he was given in 2008 that any further reoffending would most probably lead to the cancellation of his visa. Yet he also now has a last opportunity — if he will only grasp it — to reshape his life and to become the father and the husband he desires to be and which his family desire him to be. He has shown the capacity to work towards these goals and he has support. Importantly he now accepts abstinence to be the only solution to his serious alcohol problem and for the first time has the benefit of a structured rehabilitation program, which, if implemented, gives him the best chance yet of maintaining sobriety.
It will be glaringly obvious to Mr Tauariki and to those who have supported him that any relapse, any serious failure to maintain the progress he has made towards rehabilitation is almost certain to lead to the destruction of his marriage, the breaching of his relationship with his children and other members of the family, further gaol time and deportation. If however he succeeds, the rewards are also obvious. His home and family are here. The chance of rehabilitation is here. The chance to take responsibility for the welfare of his family is here. It all turns on his capacity to stop drinking. In our opinion this knowledge is likely to have a significant deterrent effect.
Although there is a very solid case for cancelling Mr Tauariki’s visa, in our view, there is just enough in his favour as things stand now to shift the balance in favour of not doing so. While the considerations are very finely balanced and the risk that Mr Tauariki will reoffend remains real, we conclude that those Considerations that favour Mr Tauriki outweigh those that do not. Having regard to the totality of the circumstance in our view the risk of reoffending is not “unacceptable”.
For the reasons set out above, we conclude that the preferable decision is not to cancel Mr Tauriki’s visa and to set aside the decision under review.
I certify that the preceding 124 (one hundred and twenty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Deutsch and Senior Member Britton ..........................[SGD]..............................................
Associate
Dated 9 July 2013
Date(s) of hearing 6 and 7 May 2013 Date final submissions received 3 June 2013 Counsel for the Applicant Tiffany Davy Counsel for the Respondent Justin Smith Solicitors for the Respondent Minter Ellison Annexure A: Mr Tauariki’s criminal history
OFFENCE
DATE
RESULT/SENTENCE
New Zealand Police Record
Attempted burglary
23.12.1991
On each charge: Case proved and sentenced (YC).
Social welfare supervision for 3 months.Burglary Burgles (Oth Prop) (Under $500) Theft property (Under $500)
Unl get into/upon M/Vehicle M/Cycle
Takes document 18.03.1993 Convicted and sentenced: Fine $300. Offensive behaviour (s4 S/Offences Act) 1.11.1996 Convicted and sentenced: Fine $150. Operate a vehicle carelessly
Never held a drivers licence8.9.1998 Convicted and discharged Breath alcohol level over 400 Mgms/Litre of breath
Blood/Breath = 718Convicted and sentenced: Community Service 100 hours
Disqualification from driving: 8 months
Common assault (Crimes Act) Manually 27.11.1998 Convicted and discharged. Male assaults female (Manually) 24.09.1999 Convicted and sentenced: Fine $150. Australian Police Record
Driver/rider state false name or address
13.07.2000
On each charge: Fined $150.
Uninsured vehicle Unlicensed for class Unregistered vehicle
Assault occasioning actual bodily harm
20.05.2004
Bond to be of good behaviour for 12 months. Fined $500.
Bond to be of good behaviour for 12 months.
Common assault
Common assault
27.09.2006 On each charge: Bond to be of good behaviour for 12 months. Fined $200. Destroy or damage property
Contravene apprehended domestic violence order
Common assault
Destroy or damage property
On each charge: Ordered to perform 200 hours of community service. Common assault
11.04.2007
Imprisonment 12 months on each charge.
Contravene apprehended domestic violence order
Resist officer in execution of duty
Common assault
(Call up) On each charge: Imprisonment 8 months.
Contravene apprehended domestic violence order
Maliciously destroy or damage property
Common assault
(Call up) On each charge: Imprisonment 6 months.
Contravene apprehended domestic violence order
Maliciously destroy or damage property
Drive with middle range prescribed concentration of alcohol
24.07.2008
Fined $700. Licence disqualified for 12 months.
Unlicensed driver
Fined $300.
Common assault
16.06.2009
Imprisonment 8 months. Sentence suspended on entering bond to be of good behaviour 8 months.
Contravene apprehended domestic violence order
Ordered to perform 200 hours of community service.
Common assault
12.10.2009
(Call Up) Imprisonment 8 months.
Contravene prohibition/restriction in apprehended violence order (domestic)
Imprisonment 1 month.
Contravene prohibition/restriction in apprehended violence order (domestic)
05.05.2010
Imprisonment 1 month.
Drive with middle range prescribed concentration of alcohol
22.03.2011
Imprisonment 12 months. Sentence suspended on entering bond to be of good behaviour 12 months.
Unlicensed driver
Licence disqualified for 3 years concluding 23 July 2014. Fined $1000.
Drive with middle range prescribed concentration of alcohol
20.06.2011
Imprisonment 12 months commencing 8 May 2011 (non parole period 9 months).
Common assault
On each charge: Imprisonment 6 months commencing 8 November 2011.
Contravene prohibition/restriction in apprehended violence order (domestic)
Enter enclosed land without lawful excuse
No penalty imposed.
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