CHARLIE JUNIOR TIARE TAUARIKI and MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2012] AATA 482
•26 July 2012
[2012] AATA 482
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/1842
Re
CHARLIE JUNIOR TIARE TAUARIKI
APPLICANT
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
RESPONDENT
DECISION
Tribunal Ms G Ettinger, Senior Member
Date 26 July 2012 Place Sydney The Tribunal affirms the decision under review.
.............[sgd]...........................................................
Ms G Ettinger, Senior Member
CATCHWORDS
MIGRATION – visa – cancellation – jurisdiction – character test – substantial criminal record – Direction [no. 41] – decision under review affirmed
LEGISLATION
Migration Act 1958 s 501, 501G
Administrative Appeals Tribunal Act 1975 s 25
CASES
Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 40 FCR 493
Re Filipo and Minister for Immigration and Citizenship [2008] AATA 1144
Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81
Shi v Migration Agents Registration Authority (2007) 158 FCR 525SZOFE v Minister for Immigration and Citizenship (2010) 185 FCR 129
SECONDARY MATERIALS
Direction [no. 41] – Visa refusal and cancellation under s 501
REASONS FOR DECISION
Ms G Ettinger, Senior Member
26 July 2012
SUMMARY
Mr Charlie Junior Tiare Tauariki has applied to this Tribunal for review of the decision of a delegate of the Minister for Immigration and Citizenship (the Respondent in these proceedings), dated 30 April 2012 to cancel his Class TY Subclass 444 Special Category (Temporary) visa. The visa was cancelled because Mr Tauariki does not pass the character test as a result of his substantial criminal record, pursuant to section 501(6) of the Migration Act 1958, (the Act).
I am mindful that when Mr Tauariki was first notified of his visa cancellation by letter dated 1 May 2012, that notification did not enclose amongst other things, the reasons for decision, and advice about his appeal rights. The Minister must give the person a written notice that sets out the decision and contains the information specified in section 501G(1) of the Migration Act 1958. The Minister wrote to Mr Tauariki again, and enclosed the relevant documents on 8 May 2012.
In the meantime, Mr Tauariki, who had received the notification of 1 May 2012 on 4 May 2012, applied for review of the decision to this Tribunal on that day. The Tribunal stamp of 4 May 2012 confirms receipt of his application.
A question then arose as to whether the Tribunal has jurisdiction in this appeal, and what the relevant dates meant. Mr David Prince of Kinslor Prince Lawyers made a written submission on behalf of Mr Tauariki, and Ms Laura Weston, made one on behalf of the Minister. The Tribunal is indebted to Mr Prince for his time given pro bono in this, and other cases.
I subsequently conducted a Telephone Directions Hearing during which the dates, receipt of documents, and the jurisdiction of the Tribunal were discussed.
I considered the application of section 25 of the Administrative Appeals Tribunal Act 1975, and concluded that the Tribunal has jurisdiction to hear Mr Tauariki’s application. This is supported by case law: SZOFE v Minister for Immigration and Citizenship (2010) 185 FCR 129.
In considering Mr Tauariki’s application, I am mindful that although he does not pass the character test, the Tribunal may nevertheless exercise a discretion in his favour following the application of Direction [no. 41] – Visa refusal and cancellation under s 501 (Direction [41]), because ultimately it must make the correct or preferable decision.
Mr Tauariki told me that he wants to remain in Australia because he is a changed man, and wants to abstain completely from drinking alcohol. He says that the two children born to his partner in Australia, and his partner, to whom he has been engaged for three years, are of utmost importance to him. He also told me that his New Zealand family and extended family of cousins and others are all here. His sister Charlotte Tauariki gave evidence by telephone at the hearing.
Approximately a dozen of Mr Tauariki’s friends and family wrote references for him. They were taken into evidence and given certain weight. They were written to support Mr Tauariki commending him for being a good father, friend and worker.
Ms C Kwak, solicitor, represented Mr Tauariki. She made submissions in support of his desire to stay in Australia, emphasising the consideration of the interests of his children as a primary consideration, and the fact he has been employed continuously while not incarcerated. Ms Weston represented the Minister, the Respondent in these proceedings, indicating that the Applicant committed crime dating back to 1991 even before he arrived in Australia, and that he committed offences very shortly after he arrived in Australia as a 24 year old, and has continued to offend. She submitted that Mr Tauariki has committed serious offences, has exhibited a pattern of offending, and does not pass the character test. She submitted that the Minister’s decision should be affirmed.
It is not in dispute, and I am satisfied from the evidence before me that Mr Tauariki does not pass the character test pursuant to the legislation. I have considered the discretion pursuant to Direction [41], the primary considerations and also the other considerations, and I am satisfied that the correct or preferable decision is that the Minister’s decision to cancel Mr Tauariki’s visa should be affirmed. My reasons follow.
BACKGROUND
Mr Tauariki was born in New Zealand in 1975, and came to Australia in 2000, when he was approximately 24 years old. Mr Tauariki told me that he attended school until the age of approximately 15 years. He said that he commenced drinking alcohol at a young age, perhaps in his early teens, and then became involved in a gang called ‘The Mighty Mongrel Mob’ which he fears to this day. One of the reasons he does not want to return to New Zealand, he said, was that the gang would find him and deal with him. He said he had been beaten up by members of the gang when he was in New Zealand.
Unfortunately Mr Tauariki was first convicted of criminal acts in 1991 including burglary before he arrived in Australia. More concerning is that he had further convictions in 1993 and 1996, and was convicted of common assault in 1998 and 1999 in New Zealand, before coming to Australia. Then, only a few months after arriving in Australia in 2000, he was convicted of offences related to driving, and in 2004, to his first assault in Australia. I am mindful also that the crimes which Mr Tauariki committed, and of which he has been convicted such as assault, assault occasioning actual bodily harm, contravening domestic apprehended violence orders, maliciously destroying or damaging property, driving while unlicensed, and driving with middle range prescribed concentration of alcohol are serious offences. Many were committed when Mr Tauariki was affected by alcohol, and he has assaulted his partner, Ms S. He told me that his drinking escalated in 2004 when he felt pressures due to the death of his mother, brother and sister. A list of offences is reproduced further on in these Reasons for Decision.
There is no evidence before me that Mr Tauariki has committed further offences while incarcerated.
Mr Tauariki has stated that he wants to cease drinking, and abstain, and that he has taken some courses when incarcerated to deal with his drinking problem. I am mindful that when he was in the community, he had opportunities of following through with these courses, but did not show motivation in order to complete any. He attended some AA meetings in prison, but did not do so when he was free.
Dr C Lennings, a psychologist who examined Mr Tauariki wrote a report which was Exhibit R3 before the Tribunal. He also gave oral evidence by telephone which I discuss later in these Reasons for Decision.
As to his personal circumstances; Mr Tauariki has two children with Ms S, who was a mother of five children when he met her. The Applicant’s two children, Miss A and Master T are aged seven and two and a half, respectively.
LEGISLATIVE CONTEXT
The relevant legislation in this matter is the Migration Act 1958, and Direction [41]. Section 501(2) states that the Minister may cancel a person’s visa if the person does not satisfy the Minister that he or she passes the character test. Section 501(6) provides that a person does not pass the character test if the person has a substantial criminal record. Substantial criminal record is defined in section 501(7) as, among other things, having been sentenced to a term of imprisonment of 12 months or more, or to two or more terms of imprisonment where the total of those terms is two years or more.
Having reviewed the offences with which Mr Tauariki has been charged, those of which he was convicted, and the sentences which followed, which far exceed the minimum contemplated in section 501(7) of the Act in order to constitute a person having a substantial criminal record, I am satisfied that the Applicant has a substantial criminal record, and does indeed not pass the character test.
Direction [41] which is made pursuant to section 499 of the Act, is applied when exercising the discretion where a person has been held to fail the character test in section 501 of the Act. In relation to the character test, events leading up to the date of the decision of the Tribunal may be taken into account: Shi v Migration Agents Registration Authority (2007) 158 FCR 525.
I am mindful that the Objectives of Direction [41] as set out in paragraph 5, are, pursuant to paragraph 5.1(1) to regulate, in the national interest, the coming into and presence in Australia of non-citizens. Paragraph 5.1(2) states that:
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.
Direction [41] contains a number of primary considerations and other considerations to which the Minister, and therefore the Tribunal standing in his shoes, must have regard when considering whether to exercise the discretion to refuse or cancel a visa.
The primary considerations in Direction [41] are set out in paragraph 10(1):
10. The primary considerations
In deciding whether to refuse to grant a person a visa or cancel a person’s visa, the following (the primary considerations) are to be considered:
(a)the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
(b)whether the person was a minor when they began living in Australia;
(c)the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and
(d)relevant international obligations, including but not limited to:
(i)the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
(ii)the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
There are also a number of other considerations that, where relevant, must be taken into account, but, generally, in accordance with Direction [41], paragraph 11(2), they should be given less weight than the primary considerations. Both the primary considerations and other considerations are discussed in the paragraphs below.
PRIMARY CONSIDERATIONS
The relevant primary considerations in Mr Tauariki’s case are the protection of the Australian community, assessed by considering the seriousness and nature of his relevant conduct, and the risk that that conduct may be repeated. The best interests of Mr Tauariki’s children, and any international obligations, are also primary considerations which I address in the paragraphs below.
Other primary considerations are whether Mr Tauariki was a minor when he first arrived in March 2000, and began living in Australia. The length of time he had been ordinarily resident in Australia prior to engaging in criminal activity is also relevant.
Protection of the Australian Community
The primary consideration, protection of the Australian community has been broken down into consideration of the seriousness and nature of the relevant conduct, and the risk that the conduct may be repeated.
Seriousness and nature of the conduct
With regard to the seriousness and nature of Mr Tauariki’s conduct, I note that paragraph 10.1.1(1) states that crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community. A non-exhaustive list of offences and conduct are given in paragraph 10.1.1(2).
The Table below shows that Mr Tauariki was convicted of attempted burglary, burglary, offensive behaviour and assault in New Zealand between 1991 and 1999. In July 2000, only approximately three months after arriving in Australia in March 2000, Mr Tauariki was convicted of driving an uninsured, unregistered vehicle, being unlicensed, and providing a false name and address to police.
The next occasion when Mr Tauariki was convicted in Australia, was of assault in 2004, when he was convicted of assault occasioning actual bodily harm, followed by further assaults in 2006 and 2007. Between 2006 and 2011, Mr Tauariki was also found guilty of contravening apprehended domestic violence orders on multiple occasions. Other offences committed by Mr Tauariki between 2006 and 2011, included destroying or damaging property, maliciously destroying or damaging property, resisting an officer in the execution of duty, driving with middle range prescribed concentration of alcohol and driving while unlicensed.
I am mindful that crimes involving violence or the threat of violence are of particular concern to the welfare and safety of the Australian community.
A list of Mr Tauariki’s convictions follows:
OFFENCE
DATE
RESULT/SENTENCE
New Zealand Police Record
Attempted burglary
Burglary
Burgles (Oth Prop) (Under $500)
Theft property (Under $500)Unl get into/upon M/Vehicle M/Cycle
23.12.1991 On each charge: Case proved and sentenced (YC).
Social welfare supervision for 3 months.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
Uninsured vehicle
Unlicensed for classUnregistered vehicle
13.07.2000 On each charge: Fined $150. Assault occasioning actual bodily harm
Common assault
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
Destroy or damage property
Contravene apprehended domestic violence order
27.09.2006 On each charge: Bond to be of good behaviour for 12 months. Fined $200. Common assault
Destroy or damage propertyOn each charge: Ordered to perform 200 hours of community service. Common assault
Contravene apprehended domestic violence order
Resist officer in execution of duty
11.04.2007 Imprisonment 12 months on each charge. Common assault
Contravene apprehended domestic violence order
Maliciously destroy or damage property
(Call up) On each charge: Imprisonment 8 months. Common assault
Contravene apprehended domestic violence order
Maliciously destroy or damage property
(Call up) On each charge: Imprisonment 6 months. 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
Contravene prohibition/restriction in apprehended violence order (domestic)On each charge: Imprisonment 6 months commencing 8 November 2011. Enter enclosed land without lawful excuse No penalty imposed.
On 11 April 2007, Mr Tauariki’s legal representative in the Local Court Wollongong who appeared before Magistrate O’Connor, noted that Mr Tauariki, on reflection back to the offences, being, resist officer, contravene apprehended violence order, assault for which he was being sentenced, expressed a great deal of shame. She stated:
… he does realise he’s placed himself in an extremely bad situation, both in terms of what he’s done to the victim and in terms of the penalties he’s facing before the court today.
… He expresses, to me, a great deal of emotion, it seems to make him very emotional indeed, the thought that he behaved in such a way with his partner. They’re no longer together, and it’s hardly surprising given the history that’s occurred in recent years…
He recognises that he needs assistance in relation to consumption of alcohol and anger management.
Magistrate O’Connor stated:
This accused is before the court today for sentence for offences arising on 17 February. The offences involve the assault of his partner, [Ms S], which is a contravention of a domestic violence order involving violence. The charges also include resisting the police officers who were called to take him into custody on that occasion.
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…
Mr Tauariki was sentenced to concurrent custodial sentences, to be eligible for release on parole on 16 November 2007, and to be subject to supervision of the Probation and Parole Service.
When Mr Tauariki appeared before Magistrate Stoddart in the Local Court Wollongong, on 20 June 2011, his Honour noted that Mr Tauariki pleaded guilty to three charges, being breach of an apprehended violence order, plus assault while on a suspended sentence for a drink drive matter. His Honour stated that the fact Mr Tauariki had been on a bond when he committed the offences meant a custodial sentence was warranted. He sentenced Mr Tauariki to 12 months’ imprisonment with a non-parole period of nine months to commence on 8 May 2011 when Mr Tauariki went into custody on those charges.
Magistrate Stoddart stated that:
… Your record shows that there are other matters of violence on your record and prior matters involving exactly the same victim. So the court orders that have been in place, the fact that you have been in custody before has not had any affect [sic], I suppose, to stop this sort of behaviour. It seems to be that unless you do something about your drinking and your violent behaviour you are just going to be in and out of gaol the rest of your life…
As can be seen from the table above, Mr Tauariki continued offending during 2006, 2007, 2008, 2009, 2010 and 2011, with a pattern of domestic violence against his partner, Ms S, mother of his children, after consuming alcohol and in breach of the apprehended domestic violence orders in place. The terms of the current AVO, in addition to the standard orders, require that Mr Tauariki not approach Ms S or her residence within 12 hours of consuming alcohol or illicit drugs, and not destroy or deliberately damage any of Ms S’s property.
Mr Tauariki’s evidence was that he met Ms S in 2001 when she already had five children, and was having a hard time. He said that late that year he moved in with her, and treated her children as his own. He said that he was particularly close to Master C with whom he shared sporting interests. Other evidence before the Tribunal indicated that the relationship with Master C only became close in recent years.
I am mindful that the couple have had periods of separation, with Mr Tauariki living with his friend, Mr M Maude for a period, and with his sister Charlotte for approximately a year. Ms S told me about the AVO under which Mr Tauariki has operated, that he previously had a key to her house, which she has since taken away from him, and emphasised further, that if he drinks to excess, she will not countenance having him back.
The Applicant said that he dated his heavy drinking to 2004 when his mother was ill, and subsequently died. He said that he returned to New Zealand to see his mother, mentioning also that he lost his sister in 2005, and also lost a brother. Mr Tauariki felt that those losses had a great impact on him, and that he used alcohol to mask his pain.
In considering the protection of the Australian community per Direction [41], I have dealt with the seriousness and nature of the relevant conduct by Mr Tauariki as discussed in the paragraphs above. I have noted that not only has his criminal behaviour been consistent, and repetitive, that it stretches back to the age of approximately 17, and recommenced only a few months after his arrival in Australia. It has persisted over time with assaults and breaches of court orders. There is no doubt that Mr Tauariki’s offences have been serious, as reflected in the violence involved, and the custodial sentences he has received.
Mr Tauariki has demonstrated his disregard for authority which is reflected in the continuing offences of driving unlicensed or disqualified, breaching court orders, drinking excessive amounts of alcohol, and assaulting Ms S.
In conclusion with regard to the protection of the Australian community; Mr Tauariki’s offences are as described above, have been serious and have demonstrated a pattern of crime. They have often been associated with excessive alcohol consumption.
I can but draw the conclusion that Mr Tauariki’s offences have been serious, and ongoing, as reflected in the violence involved, and the custodial sentences he has received, and weigh against him remaining in Australia. However, I must also consider the risk of the conduct being repeated.
Risk of the conduct being repeated
Paragraph 10.1.2 of Direction [41] requires that in assessing the risk that the conduct may be repeated, consideration should be given to Mr Tauariki’s previous general conduct and total criminal history, and, in particular, to any recent history of convictions, evidence of rehabilitation, and evidence as to whether he has breached any judicial orders.
As indicated above, Mr Tauariki commenced drinking as a young teenager, was convicted of crime in New Zealand aged only 17 years, and offended only a few months after arriving in Australia in 2000, then aged 24. He has continued committing crime in the form of breaches of AVOs, assault occasioning actual bodily harm, further assaults on his partner, and a pattern of hazardous drinking leading to those crimes. I note that Mr Tauariki’s criminal history has been continuous, and demonstrates his adverse responses to alcohol consumption, from 2004 to the present.
Mr Tauariki has expressed remorse for his crimes and the pain he has caused to Ms S and her family. Mr Tauariki said that he and Ms S had a daughter, Miss A in 2005, and a son, Master T in 2010, and that he was very happy. He said that he loves his children very much, that he has learned his lesson, and knows that in order to remain in Australia, and be with Ms S and his family, he must abstain from alcohol.
He said that while incarcerated, he took an anger management program, attended AA, and did a SMART program. I had before me certificates of completion of the following courses:
·Positive Lifestyle Program
·Apply First Aid
·Demonstrate awareness of workplace safety issues and processes
·Alcohol Anonymous 12 steps programme
·Christian instruction
·Getting SMART
·Three units that count towards the TAFE Certificate II in Engineering.
Whilst I note that Mr Tauariki enrolled in at least some alcohol management and anger management courses while incarcerated, the evidence before me is that he did not continue with those when he was in the community. He did however emphasise that he abstained from drinking alcohol for 10 months after release from gaol in 2009. Recently, while incarcerated Mr Tauariki has not had alcohol available to him.
I have also noted the evidence of his family and friends below.
Ms S, Mr Tauariki’s partner to whom he has been engaged for three years, gave evidence at the Tribunal. I noted that their relationship has endured many stresses, and separations, and there is an AVO in place specifying that Mr Tauariki in addition to three standard orders must not approach Ms S or her residence within 12 hours of consuming alcohol or illicit drugs and must not destroy or deliberately damage or interfere with the property of Ms S. Ms S told me that she understood that the escalation of his drinking and aggression occurred after the death of his mother and siblings, and that she believes the Applicant’s present undertakings regarding abstinence from alcohol (and therefore violence). She also said that if the Applicant were permitted to stay in Australia, she was willing to attend family counselling with him.
Ms S said that in 2009 after the birth of their son, and an assault by Mr Tauariki, she insisted he move out. She said that a similar thing occurred in 2011. Ms S was very firm in her views that he would not be allowed back into her house if he drank, and breached the AVO again, and that there would be no marriage. She also said that she would not move to New Zealand if Mr Tauariki had to be returned, and would not marry him.
She also emphasised that Mr Tauariki’s family and extended family are all in Australia, and that he has no family in New Zealand.
The evidence before me about whether Mr Tauariki would be returning to live with Ms S if released from immigration detention was equivocal. I have however noted below that both Mr Maude and Charlotte Tauariki offered to have the Applicant live with them at any time, and that he had done so in the past. The Probation and Parole Service report of 16 April 2012 recorded relevantly: The offender reports that in Australia he has his sister with whom he hopes to reside upon release and an extended family in the Wollongong area.
Ms Charlotte Tauariki, the Applicant’s sister gave evidence before the Tribunal by telephone. She told me both the Applicant and she arrived in Australia in 2000, and that both of them had a lot of stresses and strains due to family deaths. She said that that resulted in the Applicant’s drinking problems. She said that their parents were drinkers, and both she and the Applicant used to drink heavily. She emphasised that she now only drinks approximately once a month, and told me she believed that her brother’s strong sporting interests and his life with Ms S would stabilise him, and prevent further problems. Ms Charlotte Tauariki said that in any case, her brother could always stay with her.
Mr Mark Maude, friend and former co-worker of the Applicant in the construction industry stated that the Applicant would have a place to live with him if permitted to stay in Australia, and that he would find him work to do. I am mindful he has been a support for the Applicant as a friend, and that Mr Tauariki has already spent time living with him. They are also connected through rugby union, which unfortunately though, as I understand it, has a culture of drinking.
Mr Maude stated relevantly that: I think this right now is such a big scare and wake up call for him. I know he would do everything to improve his life for his family. I noted that Mr Maude is godfather to Mr Tauariki’s children Miss A and Master T.
Ms Rachel Rarity, daughter of Ms S, who now has her own partner and two children, gave evidence at the Tribunal. She described Mr Tauariki as an awesome stepfather, and good father. She said that her mother needed his support and that he was of great assistance with their children. Ms Rarity described the Applicant as a hardworking man providing for his family. As to his drinking and criminal behaviour; Ms Rarity said: He knows enough is enough … he knows we will be there for him no matter what.
Magistrate O’Connor in April 2007, when sentencing Mr Tauariki for resisting arrest, breaching an AVO and assault, stated: The facts of the matter are quite serious. … The accused’s record does not mitigate in his favour. He has a fairly recent and extensive record for similar offending. His Honour then enumerated the offences, noting that the assaults were always on Ms S, and in breach of the AVO in place to protect her.
Magistrate Stoddart in June 2011, who was sentencing Mr Tauariki for driving with mid range PCA, entering enclosed lands, contravening an AVO, and assault, stated:
In relation to the matters of 30 April it is my view the fact that you were on a bond that a custodial sentence is warranted. Your record shows that there are other matters of violence on your record and prior matters involving exactly the same victim. So the court orders that have been in place, the fact that you have been in custody before has not had any affect [sic], I suppose, to stop this sort of behaviour. It seems to me that unless you do something about your drinking and your violent behaviour you are just going to be in and out of gaol the rest of your life. …
Dr Lennings’ report at Exhibit R3, was prepared as a result of an assessment of Mr Tauariki made in a medico-legal setting on 26 June 2012. He also gave oral evidence by telephone at the hearing. The history reported to him as provided by Mr Tauariki did not accord entirely with the evidence before the Tribunal. In regard to Ms S: … the relationship with [Ms S] was and remains a loving one. He tells me there have been times when he has walked out, for a couple of days, just to settle down, but no proper separations other than when he has been incarcerated. I am mindful from Mr Tauariki’s evidence and that of Ms S, Mr Maude and Charlotte, that Mr Tauariki spent extended periods away from Ms S, living with Mr Maude and Charlotte. Ms S is recorded in the report of the Probation and Parole Service of 15 August 2011 that she is undecided at this stage whether she will resume the relationship.
Dr Lennings also mentions that Mr Tauariki told him Ms S brought the children to the prison, something she specifically denied, saying she did not want the children to see him in that setting. She said that since the Applicant has been in immigration detention she has taken the children to see him.
As to the risk of the conduct being repeated; Dr Lennings wrote in his report of 27 June 2012, a day after seeing the Applicant that: Mr Tauariki tells me that he has been seeing mental health, for treatment of his anxiety, and although he was initially reluctant to have an interview with me, on the basis he felt he had no psychological problems, he does seem sufficiently aware of the risk anxiety and stress hold for him as a relapse trigger.
I was concerned that as recently as June 2012, Mr Tauariki would have been initially reluctant to have an interview with Dr Lennings, on the basis he felt he had no psychological problems.
Dr Lennings concluded:
The likelihood of re offending is fundamentally the question of his ability to abstain from alcohol. … Realistically, there will always be opportunities for stress and anxiety, and similarly his character is such that he is strongly motivated to maintain social relationships with his peers. Thus, the likelihood of relapse remains high, although he will maintain sobriety for some time because he is strongly motivated to do so, but regrettably, his history suggests it will be difficult to remain free of alcohol in the long term without significant support.
Dr Lennings continued:
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 said that the prognosis was guarded because of the history of relapse, and the fact that Mr Tauariki had not yet undergone effective treatment outside, that is, only prison based treatment.
I am mindful that in the past Mr Tauariki has not continued with programs offered him on release from prison. Accordingly, notwithstanding Dr Lennings’ suggested plan for treatment, his optimistic view of Mr Tauariki’s future risk profile does not fill me with confidence.
In summary, notwithstanding declarations of remorse before Magistrate O’Connor in 2007, unfortunately Mr Tauariki did not follow through, and abstain from drinking, assault and other crime when he was released from jail.
He no longer attended AA (which is not costly), and told me that he has presently not investigated other measures to stop him from drinking. When asked at the hearing about programs involving medication as suggested by Dr C Lennings, he said that they were expensive.
I am mindful of the decision of the Full Federal Court in Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 40 FCR 493 which held that a real risk of recidivism is one which is not far-fetched or fanciful, and can include a low or minimal risk. The Respondent contended that based on Mr Tauariki’s history of criminal conduct, there is a real risk that he will return to criminal behaviour.
I noted further that Davies J sitting as President of this Tribunal in Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81 stated:
The likelihood of recidivism is a strong factor in favour of deportation when the Tribunal is not satisfied that the criminal is unlikely to offend again ... And even if the risk of recidivism is not high, the risk will strongly support deportation when recidivism, if it does occur, may cause great harm.
I am mindful in considering Justice Davies’ comments in Re Stone that many of Mr Tauariki’s offences involved violence and harm to the victim of the assaults, Ms S. Further, some or all of her children were present in the house at the various times the assaults occurred. I further noted the case of Re Filipo and Minister for Immigration and Citizenship [2008] AATA 1144, where the Tribunal cited Re Stone with approval.
Re warnings; I am mindful also that Mr Tauariki was warned in a letter from the Department of Immigration and Citizenship dated 26 October 2007 that his visa could be liable for cancellation, and that on 14 October 2008, he was given notice of the decision not to cancel of his visa on that occasion. The letter warned:
Please note that visa refusal or cancellation may be reconsidered if fresh information comes to notice or if you incur a liability on new grounds. Disregard of this warning will weigh heavily against you if your case is reconsidered.
Following that warning, only approximately eight months after receiving the formal warning, Mr Tauariki was, convicted for common assault and breach of an AVO on 16 June 2009. Further convictions for similar offences followed in October 2009 and May 2010, as well as in June 2011. Meanwhile in March 2011, Mr Tauariki was convicted of drive with middle range prescribed concentration of alcohol and sentenced to 12 months’ imprisonment. That sentence was suspended, and while on a good behaviour bond, Mr Tauariki committed his most recent assault and breach of the AVO in place. The bond imposed was revoked and he was sentenced to 12 months’ imprisonment in June 2011 in relation to the drive with middle range prescribed concentration of alcohol offence. On the same occasion a sentence of 6 months’ imprisonment was imposed in respect to the assault and breach of AVO.
I acknowledge from the evidence that Mr Tauariki has support from Ms S if he abstains from drinking, his sister Charlotte who has offered accommodation, and his friend Mr Maude who also offered accommodation and assistance in obtaining employment.
The Respondent contended that the seriousness of Mr Tauariki’s crimes is such that even if the risk of his re-offending was low, the risk would strongly support exercising the discretion to cancel his visa and prevent the risk of harm to the Australian community. In that regard, I am mindful that Mr Tauariki’s offending was not an isolated instance or lapse, but a pattern of conduct.
Taking into account all the evidence and submissions, I am not satisfied that the significant risk of Mr Tauariki again engaging in criminal conduct in Australia, is low. His pattern of criminal conduct has been continuous from the age of 17 years, and has ranged in seriousness from burglary to assault, destroying and damaging property, common assault, and assault occasioning actual bodily harm.
The overall risk of Mr Tauariki re-offending is a real one, and would qualify to be categorised as a moderate risk. In considering the risk that the conduct may be repeated, I must be mindful of Mr Tauariki’s previous general conduct and total criminal history, including his conduct in prison. There are no reports he has breached prison rules, but he has certainly re-offended in regard to breaches of court orders and assaults on Ms S once he has been back in the community.
I rely on Dr Lennings who stated:
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.
I have grave concerns about Mr Tauariki’s success at remaining alcohol free given his history of offending and re-offending, and his responses which include assaults on his partner. Working in the construction industry, and playing rugby is likely to expose him to a culture of drinking. His abstinence has not recently been tested in the outside world where alcohol is freely available. The evidence is that Mr Tauariki did not avail himself of programs to assist with abstaining from alcohol when he was last in the community. Those factors weigh strongly against Mr Tauariki remaining in Australia.
I am satisfied from the evidence that paragraph 10.(1)(a), of the primary considerations, being the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes of violence is likely to be compromised by Mr Tauariki, if he were to remain in Australia. Detailed consideration of the first primary consideration, being the seriousness and nature of the conduct, and the risk that the conduct may be repeated, lead me to the conclusion that Mr Tauariki’s conduct weighs strongly against him remaining in Australia.
Whether the person was a minor when they began living in Australia
The next primary consideration relevant in Mr Tauariki’s case relates to whether he was a minor when he first began living in Australia. Direction [41], paragraph 10.2(1) states:
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.
Mr Tauariki was 24 years old when he arrived in Australia in 2000. Mr Tauariki, who is now 37, has spent most of his life in his native New Zealand. He told me, and his sister told me that he left to escape the membership of a gang. I have no further information about the particular gang which Mr Tauariki says he fears, nor any reports of threats made to him by persons associated with it. He did not appear to have threats from them or contact with them when he has visited New Zealand since arriving in Australia.
I take into account that he attended school in New Zealand to the age of approximately 15, that he has no difficulties with the culture or language, has worked there, and would have established ties before arriving in Australia. Further he has a former partner with whom he says he lost contact when he came to Australia, and two children of that union, aged approximately 17 and 18. The return to New Zealand may be an opportunity to re-establish relationships with them, particularly if the younger person is still a minor.
This second primary consideration does not assist Mr Tauariki to obtain favourable consideration to remain in Australia.
Length of time ordinarily resident in Australia prior to engaging in criminal conduct
The third primary consideration, that is, the length of time Mr Tauariki had been ordinarily resident in Australia prior to engaging in criminal conduct, is further explained in paragraph 10.3(1) of Direction [41]. This states that more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character.
As already stated above, Mr Tauariki arrived in Australia as a 24 year old in March 2000, and only a few months later, in July 2000, he was convicted for the first time in Australia. This followed criminal behaviour commenced in New Zealand in 1991, and followed with further crime committed in 1993, 1996, 1998 and 1999. Unfortunately, as indicated in the paragraphs above, Mr Tauariki’s criminal conduct continued.
The criminal conduct engaged in by Mr Tauariki at 24, only a few months after arriving in Australia, and the conduct which followed, weigh against him remaining in Australia.
International obligations
Paragraph 10(1)(d) of Direction [41] requires regard to be had 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).
The best interests of the children
The best interests of the children are a very important primary consideration. Mr Tauariki has a seven year old daughter, Miss A, and a two and half year old son, Master T. He has lived with Ms S and her five children in earlier times, and claims to have a good relationship with her son Master C, who is still a minor.
Older children such as Master C, Ms S’s son, who has spent some years in the home when Mr Tauariki has been present, now has a girlfriend and his own life, but may miss the Applicant if he is returned to New Zealand. The evidence before me indicates that, notwithstanding Mr Tauariki’s evidence that he is close to Master C, the boy has never visited the Applicant in prison or in immigration detention.
Ms S’s older children have now left home, although one daughter, her partner and young child live there temporarily.
Ms Rarity has two young children who may not get to know Mr Tauariki if he is to return to New Zealand. She told me that he has been an awesome stepfather to her.
Mr Tauariki has been incarcerated for most of his son’s life, although he has spoken to him on the telephone regularly to the extent that one can speak to a baby on the phone. He told me that it was so that Master T would get to know his voice. The Applicant has expressed a desire to be part of the children’s lives, and if he is to return to New Zealand, his children will not have the opportunity of growing up with his presence in the home.
A report of the Probation and Parole Service of 15 August 2011 states as follows in regard to Ms S:
Mr Tauariki’s partner stated that she refuses to expose their children to the negative aspects of a custodial environment by way of visitations.
Records confirm regular telephone contact with his partner. During recent contact with his partner she stated that the custodial telephone calls were predominantly to facilitate contact between Mr Tauariki and his son. She stated that his daughter is often at school at the allocated times and she herself has little to say to him.
Ms S told me at the hearing that she will not allow the Applicant into her house if he has been drinking, and that he no longer has a key to her house. He was not living with her and the children following his release from prison in 2007 when he lived with his sister for a year.
I am mindful also that all or some of Ms S’s children have been in the home when assaults have taken place. The damage caused to them emotionally, may, according to Dr Lennings, be healed if Mr Tauariki remains sober and is in contact with Ms S, and with them. On the other hand, if he resorts to further bouts of drinking and re-offending, then it would compound the damage, and might play out in their own relationships as those develop when they are growing up.
The evidence before me regarding financial support from Mr Tauariki for Ms S and the children was equivocal. The evidence is, however, that he has been a diligent worker when not incarcerated, and has contributed financially to a certain extent. In effect though, Ms S has managed financially and has brought up her children without much financial assistance from Mr Tauariki. She told me that she is planning to return to work next year.
I note also for completeness that Mr Tauariki also has two children, aged approximately 17 and 18 in New Zealand with whom he has lost contact, and with whom he may re-establish a relationship.
Mr Tauariki’s family situation weighs in favour of him remaining in Australia, but must be balanced against the remaining primary and other considerations, which in my view take precedence.
The threat of gangs
I have also considered whether there are other international obligations which weigh towards Mr Tauariki remaining in Australia. He told me that he had been part of a gang called ‘The Mighty Mongrel Mob’, and left New Zealand to escape them. He said he had been beaten up by members of the gang, and that he would be afraid to return to New Zealand because even after 12 years, they would find him and deal with him. His sister and Ms S also mentioned the presence and influence of gangs when they gave evidence, although Ms S said that she did not know much about gangs.
Apart from their word, I had no further evidence about the situation regarding any gang. I am not satisfied that Mr Tauariki has based the fear he expressed on an actual situation given he has been in Australia for 12 years now, and travelled to New Zealand in 2004, and returned to Australia, apparently with no problems.
Mr Tauariki also told me that if he did not have a job, the gangs would get him. I am mindful that since being in Australia, the Applicant has been regularly employed, generally in the construction industry when he has not been in prison. He is likely to similarly be able to find work in New Zealand.
However, even if there is a possibility Mr Tauariki may still be sought out by a gang, then there may be a consideration of international obligations as a primary consideration in weighing up whether he should be returned to New Zealand. I have undertaken that exercise, and am of the opinion that the gang issue does not outweigh the other primary considerations which weigh against Mr Tauariki remaining in Australia.
OTHER CONSIDERATIONS
Direction [41] states that other considerations, where relevant, must be taken into account but, generally, should be given less weight than the primary considerations. Relevant considerations in Mr Tauariki’s case are the nature and extent of his relationships with those in the Australian community, his age, his health, his links with New Zealand, any hardship to the Applicant and his family, his education and the fact that he has been formally warned in the past that his visa might be cancelled because of his criminal conduct.
Mr Tauariki’s family ties have been discussed in the paragraphs above. I am mindful that Ms S, her younger children, his sister and extended family of cousins will miss him if the decision that he return to New Zealand is upheld. He will miss them too. If that occurs, Miss A and Master T would be growing up without their natural father physically present in their lives. It should be noted however, that the former has not lived with Mr Tauariki present in the home for more than half of her life, and that Master T who is only two and a half, has not had Mr Tauariki present in his life, other than on the telephone for most of his life.
I note also that Ms S said she would not permit Mr Tauariki into her home if he had been drinking. She also said that she would not marry him or move to New Zealand with him if he had to leave Australia.
Ms Rarity has two young children who do not know Mr Tauariki, and would not be in a position to miss him.
Mr Tauariki’s age, health and education can be taken into account in coming to a decision. Of course he will find it difficult at least at first to make a new life, but he is 37 years old, and will be able to work and make a new start for himself in New Zealand. He lived there until the age of 24, has an ex-partner and two children there, aged approximately 17 and 18 with whom he may be able to re-establish contact.
Mr Tauariki has formal schooling to the age of approximately 15 years and has worked in the construction industry in Australia. He is said to be a diligent worker and work has been offered to him if he is permitted to stay. He can similarly work in New Zealand where he also has no cultural or language barriers.
No health issues aside from alcohol have been mentioned in these proceedings. Mr Tauariki would be able to access courses to assist him with his alcohol problems in New Zealand as well as in Australia.
I am mindful that Mr Tauariki was formally warned in 2008 that his visa might be cancelled because of his criminal conduct. The records reproduced above indicate he continued to offend after that.
I am satisfied that a consideration of these other considerations does not favour Mr Tauariki remaining in Australia, and does not outweigh the weight of the primary consideration, being the protection of the Australian community. I have already held above that Mr Tauariki’s conduct past and present, weighs against him remaining in Australia.
CONCLUSIONS
I have concluded in the paragraphs above that Mr Tauariki does not pass the character test. I then moved to consider the discretion in accordance with Direction [41]. My first task was to weigh up the primary considerations to which I am required to give greater weight.
Not surprisingly Mr Tauariki and those who supported him, such as Ms S, his friend, Mr Maude, his sister, Ms C Tauariki, and Ms S’s daughter Ms R Rarity wanted him to remain in Australia, while the Respondent contended that the primary consideration being the protection of the Australian community weighed heavily in favour of the cancellation of Mr Tauariki’s visa. Removing him will no doubt cause hardship to him and to them.
I have considered the evidence and arguments and the submissions of both parties, and am satisfied that the primary consideration being the protection of the Australian community weighs heavily in favour of the cancellation of Mr Tauariki’s visa.
The other primary consideration, the best interests of children, principally concerns the welfare of Mr Tauariki’s daughter and son. He is their father, but some or all of Ms S’s children and Miss A and Master T have witnessed Mr Tauariki’s drunken and violent behaviour against Ms S a number of times. Dr Lennings commented that if Mr Tauariki remained alcohol free and was the loving father he purports to be when sober, then any harm suffered by the children may heal. However, I am mindful of his opinion that if they are to be subjected to being in the same house when their mother is again assaulted by Mr Tauariki, then further psychological damage could be done to them. I am satisfied there is a real risk the latter situation may occur.
I am mindful also that if Mr Tauariki continues to drink and offend, then Ms S will not allow him to see her or the children. I am satisfied given the history of drinking and violence, that there is a real risk of the pattern recurring. I am satisfied that the protection of the Australian community would be compromised by Mr Tauariki remaining in Australia. I am not satisfied that Australia should bear the moderate risk of him re-offending here, and the cost to our society thereof.
Mr Tauariki’s family ties in Australia are the most relevant of the other considerations in this case. They do not, in my opinion, outweigh the findings in regard to the primary considerations, being the protection of the Australian community from serious criminal conduct which includes the risk of re-offending, which weigh towards Mr Tauariki returning to New Zealand.
I am satisfied that Mr Tauariki does not pass the character test as a result of his substantial criminal record, and his past and most recent criminal conduct. As noted in the paragraphs above, I have made an assessment of the primary considerations and the other considerations in regard to Mr Tauariki. I am satisfied that the discretion in section 501 of the Act should not be exercised in the Applicant’s favour. Having weighed up all the considerations, I am satisfied that the decision of the Minister to cancel Mr Tauariki’s visa should be affirmed.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 123 (one hundred and twenty three) paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member.
.....[sgd]...................................................................
Associate
Dated 26 July 2012
Dates of hearing 9 and 10 July 2012 Solicitors for the Applicant Ms C Kwak, Carroll & O'Dea Lawyers Solicitors for the Respondent Ms L Weston, Minter Ellison
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