Denny Amohanga and Minister for Immigration and Citizenship
[2012] AATA 447
•16 July 2012
[2012] AATA 447
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/1757
Re
Denny Amohanga
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
Decision
Tribunal Mr P W Taylor SC, Senior Member
Date 16 July 2012 Place Sydney The decision under review is affirmed.
.......[sgd].................................................................
Mr P W Taylor SC, Senior Member
Catchwords:
IMMIGRATION AND CITIZENSHIP – visa cancellation – character test – substantial criminal record – whether Tribunal should exercise discretion to cancel applicant's visa pursuant to s 501 of the Migration Act 1958 – Ministerial Direction No 41 applied – protection of the Australian community – seriousness and nature of the relevant conduct – the risk conduct may be repeated – hardship likely to be experienced by person – decision under review affirmed.
Legislation
Migration Act 1958 ss 499, 501
Cases
Reedy and Minister for Immigration and Citizenship [2011] AATA 363
Secondary Materials
Direction [No. 41] – Visa refusal and cancellation under section 501
REASONS FOR DECISION
Mr P W Taylor SC, Senior Member
16 July 2012
Background
Mr Amohanga is a 41 year old New Zealand citizen. He has lived in Australia for most of his life. His parents came here in 1978 with their six children. Mr Amohanga, the fourth child, was about seven years old.
Mr Amohanga grew up, and went to school, in western Sydney. In May 1986 when he was 15, he returned to New Zealand with his parents and his younger siblings. They came back to Australia in May 1987. Since then he has only been back to New Zealand once - for a short holiday at Easter time in April 1998.
Warning about visa cancellation
After 1998 Mr Amohanga held a special category temporary visa. That visa was the legal basis for his entitlement to remain in Australia. In a letter dated 23 February 2011 the Department of Immigration and Citizenship gave Mr Amohanga a formal warning that his visa was liable to cancellation under section 501 of the Migration Act 1958. The letter informed him that a delegate of the Minister had decided not to cancel the visa “on this occasion”, but warned that visa cancellation may be reconsidered if he committed further offences. More specifically the letter stated that disregard of the warning “will weigh heavily against you if your case is reconsidered”.
In early May 2011 Mr Amohanga signed, and returned to the Department, an acknowledgement of the warning.
Convictions and sentences leading up to the cancellation warning
The visa cancellation warning took into account Mr Amohanga’s convictions and sentences up until October 2010. There were a notable number of them, mainly involving dishonesty and assault. It is a little difficult to provide an accurate summary of all his convictions. There are several reasons for the difficulty. In some instances he was convicted in his absence, and sentenced on a later occasion. There are other instances where he breached a condition of a bond, or where a community service order was revoked, and he was before the courts on more than one occasion for the same matter. There are instances where he lodged appeals against sentences. There are other occasions where he was on remand. In the accompanying Table I have endeavoured to exclude these confounding pieces of information and to set out the essential dates and nature of Mr Amohanga’s convictions, and their related sentences. In so doing I have substantially relied on the relevant Australian Federal Police and NSW Police records.
The presently significant matters to note about Mr Amohanga’s pre-warning convictions and sentences are as follows:
(a)He had been sentenced to terms of imprisonment of 12 months or more on three occasions:
(i)May 1992 (assault with intent to rob - 2 years);
(ii)September 2002 (failure to comply with bond - 12 months, suspended);
(iii)October 2010 (affray - 12 months);
(b)On four other occasions he had been sentenced to periods of imprisonment which, in aggregate, totalled more than two years – namely:
(iv)July 1992 (break, enter and steal - 3 months, served concurrently with the May 1992 sentence);
(v)January 1994 (steal from person - 8 months);
(vi)April 1997 (attempt/obtain money by deception - 6 counts - 6 months, served concurrently);
(vii)February 2005 (act of cruelty to animal - 9 months, suspended);
(c)All of the convictions related to conduct that occurred before April 2007;
(d)He had only been sentenced to actual (as distinct from suspended) terms of imprisonment on two occasions in the fourteen year period before the warning; and
(e)The more recent of those sentences (in October 2010) resulted from a failure to comply with a community service order, and was not the original sentence that had been imposed.
Further sentence AND VISA cancellation
On 25 November 2011 Mr Amohanga was convicted of two further offences, assault occasioning actual bodily harm and breach of an apprehended violence order. He was sentenced to 13 months of imprisonment on the assault charge, and nine months for breach of the apprehended violence order. The victim was JD, Mr Amohanga’s one time domestic partner. She had also been the victim involved in the offence for which he was sentenced in October 2010.
On 20 April 2012, and substantially as a consequence of his additional convictions, a Delegate of the Minister cancelled Mr Amohanga’s visa. Mr Amohanga was notified on 23 April 2012.
Section 501(2) of the Migration Act permits visa cancellation in various circumstances. One of those circumstances is where the Minister is not satisfied the person “passes the character test”. The character test criteria are set out in s 501(6) of the Migration Act. Relevant to Mr Amohanga’s circumstances, they include situations where the person concerned has a “substantial criminal record”. Section 501(7) of the Migration Act defines the circumstances in which a person has a “substantial criminal record”. They include situations where the person has been sentenced to a term of imprisonment of 12 months or more, or where the person has been sentenced to multiple terms of imprisonment that aggregate to two years or more. In the light of at least the matters referred to in paragraphs 6 and 7 above, Mr Amohanga is a person who has a substantial criminal record.
Direction [no.41] - Visa refusal and cancellation under section 501
Direction [41] is the currently applicable direction issued by the Minister under s 499(1) of the Migration Act. The exercise of the visa cancellation power by the Minister’s Delegate, and the Tribunal’s review of the Delegate’s decision, must comply with Direction [41].
Part 1 of Direction [41] is a Preliminary section. The Preamble, in clause 5 of Direction [41], states that the objective of the Migration Act is to regulate “in the national interest, the coming into and presence in Australia of non-citizens”. Clause 5.1 continues with a statement that in order to safeguard the community and discharge its “duties and responsibilities to the Australian people”, the Government seeks to protect that community from “unacceptable risks of harm” as a result of criminal activity or other serious conduct by non-citizens”. Clause 5.1(3) of Direction [41] declares that the Government is “especially mindful” to protect the safety of the community’s more vulnerable members.
Clause 5.2 of Direction [41] requires decision makers who exercise the visa refusal or cancellation powers conferred by s 501 of the Migration Act to consider both the nature of any harm that the person concerned may cause, and the risk of that harm occurring. Clause 5.2(3) of Direction [41] requires the additional consideration of a wide range of factors. These include the length of the person’s residence in Australia, the extent to which that residence included the person’s minority, and any relevant international law obligations.
The inclusive breadth of the considerations required by Direction [41] introduces the potential for tension between the broadly stated protective objective of the Migration Act, and the wider considerations that underlie the idea of regulating “in the national interest”, and the value judgment involved in the characterisation of risks of harm as “unacceptable”. That potential for tension appears to be recognised in clause 5.2(4) of Direction [41]. It states that “in some circumstances it may be appropriate” for the Australian community to accept more risk where the person concerned has, in effect, become part of the community as a result of having spent either their formative years, or a major portion of their life, in Australia. This statement suggests that the merely formal distinction between citizens and non-citizens may not always properly reflect the national interest. Together with other aspects of Direction [41], it recognises the potential inclusiveness of the idea of “community” and the need to consider all of the material factual implications of the person’s residence and conduct in Australia.
Part 2B of Direction [41] details a range of relevant, and potentially relevant, considerations which either “must” or “should” be taken into account in the exercise of the powers conferred by s 501 of the Migration Act. In so doing Direction [41] distinguishes between four “primary considerations”, and seven “other considerations”. The basic distinction between these two categories is that the “primary considerations” must be taken into account in every case. An additional distinction is that “generally” the “other considerations” should be given less weight than the primary considerations: see Part 2; Part B clause 11(2). That broad qualification necessarily implies that in some circumstances the “other” considerations may be accorded more significance than the primary considerations and may be determinative in the exercise of the cancellation power.
The four primary considerations mandated by Direction [41] are:
(a)protection of the Australian community from “serious criminal or other harmful conduct, particularly crimes of violence”;
(b)whether the person was a minor when they began living in Australia;
(c)the length of time the person had been ordinarily resident in Australia before engaging in criminal activity (or other relevant conduct); and
(d)relevant international obligations, including those arising under the Convention on the Rights of the Child and others arising under various international refugee and non-refoulement obligations.
The other considerations contemplated as potentially relevant matters, and consequently required to be considered, are set out in clause 11 of Direction [41]. They include matters such as the person’s family ties, age, health, and the hardship to which visa cancellation may give rise.
The length and nature of Australian residence
After he came to Australia in 1978 Mr Amohanga went to various public primary and high schools in Australia. He completed year 9. Just after he turned 15 he went back to New Zealand with his parents. He spent the following year there. The family returned to Australia in May 1987, the day before his 16th birthday.
Mr Amohanga said that the family’s return to New Zealand involved an ultimately unsuccessful attempt by his parents to pursue a land claim in the Waitangi Tribunal. The claim involved his grandparents. It may be that the family contemplated remaining in New Zealand if the claim had succeeded, and that his parents had not firmly committed to remaining in Australia until they returned in mid-1987. That interpretation of events is arguably consistent with statements, attributed to Mr Amohanga in various parole records, that he migrated to Australia in 1987 (rather than 1978).
Nevertheless, it is readily apparent that Mr Amohanga spent most of his childhood in Australia. All but his earliest years of schooling occurred in Australia. His parents and all of his siblings live in Australia. He has numerous family relations, aunties and uncles (more than 20), nieces and nephews (more than 40) and cousins (more than 60), all of whom live in Australia. He is not aware of any relatives who still live in New Zealand.
The fact that Mr Amohanga has spent so much of his minority in Australia, and has so many relatives, including all of his immediate family, living in Australia is one of the primary considerations to which weight must be given in the exercise of the visa cancellation power. In Mr Amohanga’s circumstances it is a consideration that points against the appropriateness of visa cancellation.
Mr Amohanga’s first convictions occurred about 6 years after his arrival, when he was still a minor. Those offences involved dishonesty, but their precise extent was not revealed in the evidence. His September 1991 conviction involved assault with intent to rob. This occurred whilst he was still subject to the 3 year good behaviour bond arising out of his October 1990 conviction for the illegal use of a motor vehicle. Mr Amohanga’s subsequent convictions up to April 1997 variously involve behavioural misconduct, some element of violence, or dishonesty.
The primary consideration that clauses 10(1)(c) and 10.3 of Direction [41] require to be taken into account in relation to the length of a person’s residence, is the period before their criminal activity began. It is difficult to reach a comfortable conclusion about the application of that consideration to Mr Amohanga’s particular circumstances. His first offence did not occur until he was almost 13, when he had been living here for about 6 years. His next offence occurred 3 years later, just after he had turned 16. Both of those offences appear to have involved dishonesty rather than violence and, as will appear from later parts of these reasons, it is Mr Amohanga’s risk of violent re-offending, rather than his past dishonesty offences, that it is of principal relevance to the outcome of the present proceedings. On the other hand, it is a matter of concern that Mr Amohanga’s offending began in his youth.
It may be appropriate to regard the period after Mr Amohanga’s return from New Zealand in 1987 as marking the commencement of his relevant period of Australian residence for the purpose of clauses 10(1)(c) and 10.3 of Direction [41]. This possibility arises for two reasons. The first is that his earlier period of residence, before he completed his schooling, counts as a formative period to which the primary consideration in clause 10.2 of Direction [41] applies. (This consideration would also extend, but with rather less force, to the period after his return from New Zealand, but before he attained his majority.) The second is that the exegesis in the opening part of clause 10.3 of Direction [41] suggests that the focus of the required consideration is the extent of the ties that the person had with the Australian community before their relevant misconduct. An assessment of the quality and significance of those ties is, in my opinion, coloured by Mr Amohanga’s return to Australia in 1987. It was that return which appears to mark his definite commitment to living in Australia. And it is in that period that he attained his majority and should have fully appreciated his responsibility to conduct himself lawfully.
As I have already pointed out, there is a degree of overlap between clauses 10.2 and 10.3 of Direction [41]. There is also some potential for overlap between the primary consideration in clause 10.3, and the “other consideration” in clause 11(3) which requires taking into account the extent of a person’s ties to the community and the extent to which they would be disrupted by the cancellation decision. There is also some potential for overlap between clause 10.3 and the other primary consideration relating to the risk of harm to the Australian community. This potential overlap arises because the length of a person’s lawful residence may assist in making an informed assessment of the likelihood of re-offending. Taking into account these considerations about the potential inter-relationship between clause 10.3 and other parts of Direction [41], I consider that clause 10.3 is intended to permit regard to be had, as a primary consideration, to the length of a person’s lawful prior residence for reasons in addition to either the assessment of the person’s risk of re-offending or the extent of their ties to the Australian community.
The primary consideration contemplated simply reflects a value judgment that, in considering the protective object of the Migration Act, and in assessing what, in the light of all the relevant circumstances, constitutes an “unacceptable risk of harm”, the length of the persons proper conduct as a resident, before offending, is a factor that may operate either in favour of, or against, the exercise of the visa cancellation power. That value judgment, and the weight that should be accorded to this primary consideration in its application to the circumstances of any particular individual, will necessarily be impressionistic.
I recognise that the first of Mr Amohanga’s convictions did not occur until about six years after his arrival in 1978. That is a consideration in his favour, but it is not a sufficiently substantial period to attract more than marginal weight. It is not a long period. It occurred when he was a minor. The community expectation would generally be that children in their developing years would conform to the standards of the community. In addition, the significance that might otherwise be accorded to it is, in my opinion, detracted from by the nature and frequency of his convictions in the approximately 4 year period after his return to Australia in 1987.
Protection of the Australian community
The primary consideration in clause 10(1)(a) of Direction [41] is the protection of the Australian community from serious criminal or other conduct, and particularly crimes involving violence. Crimes involving violence, or the threat of violence, are of special concern to the welfare and safety of the Australian community. Crimes involving violence against vulnerable persons are regarded as "especially abhorrent": clause 10.1.1 (1) of Direction [41].
It necessarily follows from those statements of concern that offences involving violence are characterised as serious offences in the application of this primary consideration. That conclusion is complemented by the specific examples of serious offences that are set out in clause 10.1.1(2) of Direction [41]. Relevant to Mr Amohanga’s conviction record, those examples include assault (his convictions in January 1991, May 1992, November 1999, June 2001, September 2002, August 2010 and September 2011) and robbery (his conviction for assault with intent to rob in May 1992).
But seriousness is a concept to which qualitative degrees can, and indeed should, be applied in a proper consideration of the visa cancellation power. In assessing the "seriousness of the offender's conduct against the community" - the expression used in clause 10.1.1(3) of Direction [41] -"due regard" must be given to the relevant aspects of the person's criminal record, including the number and nature of their offences, their periodicity and their recency relative to the exercise of the visa cancellation power. In addition, any assessment of the seriousness of the person's conduct must take into account any relevant mitigating circumstances. That information may derive from contemporary information or explanations the person provides. Relevant independent and authoritative resource information should also be considered. Information of that kind includes judicial comments that were made in relevant proceedings, professional psychological reports and pre-sentence and parole assessments: clause 10.1.1(4).
The ultimate assessment required to be undertaken is the level of risk of harm to the community as a result of the person's continued presence in Australia. That assessment requires an evaluation of the nature and seriousness of the relevant conduct and the risk that it may be repeated: clause 10.1(2) of Direction [41]. Assessment of the level of risk involves consideration of both the degree of probability of reoffending, and the nature of any apprehended consequential harm: clause 5.2(2). Even a risk that has an apparently low probability of occurrence may be given effect to as a primary consideration favouring the exercise of the visa cancellation power, particularly having regard to the “seriousness and nature of the relevant conduct”: see Direction [41] clause 10.1(2)(a) & Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 40 FCR 493.
Assessment of the seriousness of the totality of Mr Amohanga’s previous convictions is complicated by both their diversity, and the period over which they have occurred. It is apparent from the accompanying Table that his convictions can be analysed as falling into in four broad categories. These are:
(a)dishonesty offences;
(b)general behaviour related offences;
(c)common assaults; and
(d)more significant assaults.
Dishonesty offences: This description applies to Mr Amohanga’s various offences of stealing, assault with intent to rob and obtaining money by deception. These convictions all occurred in the period between May 1984 and April 1997. As the accompanying Table indicates, Mr Amohanga served a total of about two years imprisonment for these offences, on three occasions in 1992, 1994 and 1997. The total length of the sentences, even though only one of them involved a term of imprisonment of 12 months or more (ignoring for present purposes any terms of imprisonment that were served concurrently), is an indication of the seriousness of the offences. That is particularly the case in relation to the conviction in May 1992 for assault with intent to rob. That conviction carried a sentence of two years imprisonment (with a one year non-parole period). However, there is little further information about the circumstances of these various offences. The most recent of them occurred more than 15 years ago. The earlier offences occurred almost 20 years ago.
General behaviour related offences: I have used this description to refer to a range of convictions for offensive language, resisting or assaulting police, unlawful use of a motor vehicle, supplying a prohibited drug, driving offences, destruction of property and animal cruelty. These various offences occurred in two broad periods, either between August 1989 and June 1990, or between June 1999 and September 2004.
None of the offences that occurred in the first period resulted in any custodial sentence. Apart from the June 1990 offence for the illegal use of a motor vehicle they were all dealt with by fines. The amount of those fines, at least by contemporary standards, appears to be comparatively modest. The motor vehicle offence resulted in a three-year good behaviour bond. I do not consider any of these offences merit categorisation as serious harmful conduct in the present context.
The offences that occurred in the second period are rather disparate in their nature. The drug supply conviction in June 1999 related, according to Mr Amohanga, to a small amount of cannabis. In relation to that offence he was sentenced to imprisonment until the "rising of the court". That sentence in itself suggests a rather inconsequential matter. But the suggestion is likely to involve something of an overstatement. Other records suggest a more complete explanation may involve the fact that Mr Amohanga was in custody on remand from the end of June 1999 until about mid-August 1999.
The driving offences in December 2003 were dealt with by way of fine and a six-month period of licence disqualification. Drink-driving offences are regarded, according to contemporary community values, as seriously culpable conduct. However, this is Mr Amohanga’s only recorded conviction for an offence of that kind, and its particular circumstances have not been the subject of evidence. The animal cruelty convictions (in January and September 2004) resulted in a substantial fine and a nine-month suspended sentence. Such a sentence does suggest a relative degree of seriousness in these latter offences. However, I do not regard them as a kind of offence to which that categorisation should apply for the purpose of the proper application of the considerations in Direction [41], having regard to the nature of the examples set out in Cluase 10.1.1(2).
Common assault: In this description category I have included Mr Amohanga’s May 1990 and July 2002 offences involving resisting or assaulting police, the malicious property damage conviction apparently related to the other July 2002 offences, and his conviction for common assault in June 2001. None of these offences resulted in sentences of imprisonment. Those in the earlier period were dealt with by way of fine. Those in the latter period were dealt with by good behaviour bonds. The nature of these offences, because they inherently involve the use of violence, falls within the inclusive examples of serious conduct contained in clause 10.1.1(2)(d) of Direction [41]. However, because the sentencing courts dealt with Mr Amohanga only by way of fine or bond, I do not regard them as being matters that are significant considerations in the proper exercise of the cancellation power in the present circumstances.
More significant assault: This description applies to the November 1999 conviction for assault occasioning actual bodily harm. It also includes the October 2010 and September 2011 sentences. As I earlier indicated, both of those convictions involved violence by Mr Amohanga against his sometime domestic partner, JD. The Parole Service Records I refer to in paragraph 54 below indicate that the November 1999 conviction also involved an assault on JD (despite the different recollection Mr Amohanga gave in evidence, before the particular records had been produced to the Tribunal by the Minister).
The October 2010 sentencing court apparently dealt with the events of 21 April 2007 on the basis of the contents of police fact sheets prepared by a senior constable of police on the day the events occurred. Mr Amohanga partly disputed those facts in the present proceedings, and had entered a plea of not guilty when the matter came before the court on 4 June 2007. But the transcript of proceedings on 28 October 2010 indicates that he did not in fact contest the conviction. Indeed, the New South Wales police court history conviction records suggest that he originally failed to appear when the matter was before the court on 25 July 2007 and was convicted in his absence.
The 21 April 2007 police facts sheets record that Mr Amohanga and JD had been drinking together, first at a hotel and subsequently at a friend’s house. They became involved in an argument over alcohol. Mr Amohanga had a gripped JD in a head lock, walked across a road and pushed her into a fence. He then punched her violently in the stomach a number of times, and pulled her hair. Then he punched her in the face and pushed her head into the fence. An off duty police officer approached. Mr Amohanga warned him off with a profanity, and gestured as if he was firing a gun at him. He then again placed JD in a head lock and took her back across the road. There he pushed her into another fence. Whilst this was going on the off duty police officer approached a number of times. On each occasion Mr Amohanga warned him off with violent gestures. The witness observed JD was bleeding from the nose and mouth, and had a large lump over her left eye.
Mr Amohanga does not dispute that he grabbed JD on this occasion, or that he pushed her into a fence. His explanation, in the evidence he gave in these proceedings was that JD had a long history of mental illness, had become highly agitated and was actually threatening to suicide by running onto the roadway. He claimed that all he was trying to do was to protect her from herself.
The fact that JD has a long history of psychiatric illness and instability (Bi Polar Disorder and Schizophrenia) is not in contest in these proceedings. However, I do not accept the version of events that Mr Amohanga gave in these proceedings. The contemporaneous account, in the police fact sheets, of repeated punches by Mr Amohanga to JD’s head and body, the description of her bleeding from the nose and mouth, and the account of Mr Amohanga’s threatening behaviour towards the off duty police officer, are inconsistent with the significantly more benign explanation proffered by Mr Amohanga. If his conduct had in fact been entirely protective of JD's interests, and no more than was required to protect her from his apprehensions of her suicide, it is difficult to understand his repeated blows, when he had the ability to restrain her successfully in a head lock. It is even more difficult to understand the hostility he directed towards the off duty police officer witness.
In the absence of any contest about the conviction the presiding magistrate, in the remarks he made on 28 October 2010 (the date when Mr Amohanga was eventually sentenced on this matter), said it was difficult to regard the offence as “anything but an appalling way to treat anyone that you are sharing your life with or anyone in the community overall”. I agree with the appropriateness of that description.
Mr Amohanga’s 16 September 2011 conviction and sentencing for assault occasioning actual bodily harm, and breach of an apprehended violence order, related to an incident at JD’s residence on 31 July 2011. That was a little over five months after Mr Amohanga had been released from prison following his 28 October 2010 conviction and sentencing for the events of 21 April 2007. Mr Amohanga had been drinking heavily. There was a disagreement and JD had demanded he leave the house. JD gave evidence in the Local Court proceedings that Mr Amohanga left the house, but returned later and punched her about the head and face a number of times. He also hit her head into a door frame in the house.
Mr Amohanga gave evidence in the Local Court proceedings denying that he had assaulted JD. He suggested that she had fallen over, and that was the cause of her injuries. The Magistrate rejected Mr Amohanga’s account and accepted that of JD. He recorded his satisfaction that Mr Amohanga had hit JD about the head numerous times and that he had banged her head into a doorframe.
Despite the evidence he gave in the Local Court proceedings in September 2011, in his 19 March 2012 letter to the Department of Immigration and Citizenship, Mr Amohanga said he was "deeply remorseful for the events that occurred on the day of my arrest”. When he was asked about that statement in cross-examination in the present proceedings, he conceded that he was remorseful for having assaulted JD. He said he recalled having seen her injuries at the time and realised it must have been him. In response to further questioning he said that the reality was he had been so drunk at the time that he did not really recall, with any accuracy, what actually happened.
In the circumstances it is appropriate to find that, in a state of heavy intoxication, Mr Amohanga violently assaulted JD in the manner I have described above.
If I had accepted Mr Amohanga’s explanation for the events of 21 April 2007, that explanation would operate as a significant mitigating factor in evaluating the seriousness of the conduct that occurred on that day. However, I do not accept the explanation and even if JD was at the time in a drunken and agitated state, I do not regard that circumstance as a consideration that mitigates Mr Amohanga’s conduct.
Mr Amohanga gave evidence that at the time of the incident on 31 July 2011 he had been significantly depressed. It was because of his depression that he had been drinking. In 2003 Mr Amohanga had been diagnosed with Post Traumatic Stress Disorder. That was partly attributed to incidents in his youth when he had been involved in a motor cycle accident in which one of his uncles was killed. It was also partly attributed to the undoubtedly distressing experience of discovering JD’s infant son strangled in the rungs of his cot. They had occurred in April 1998, at a time when JD and Mr Amohanga were still living together.
I accept that in the period after 2000 Mr Amohanga has had ongoing symptoms of depression and anxiety associated with his psychiatric illness and that he has at times been medicated for that condition. However, I do not regard either that fact, or its possible contribution to the excessive alcohol consumption which immediately preceded the 31 July 2011 assault, as providing a significant consideration mitigating his conduct. This is because, at the time of that assault, Mr Amohanga was the subject of an apprehended violence order which required him not to approach JD. It was his failure to comply with that order, and a history of domestic violence between them, that was the principal contributing factor to the 31 July 2011 assault. According to JD’s evidence in the 2011 proceedings, Mr Amohanga assaulted her after first leaving the house and then then returning a short time later. The return suggests a deliberate, anger driven assault.
Risk of re-offending
A person’s previous general conduct, and total criminal history, are highly relevant to an informed assessment of their risk of reoffending. Recent convictions should be considered as indicating an increased risk of reoffending: clause 10.1.2 (2) of Direction [41]. Evidence that person has failed to comply with the terms of parole, good behaviour bonds or suspended sentences, or has failed to comply with judicial orders, are "particularly relevant" to the assessment: clause 10.1.2(2)(c) of Direction [41]. But it is also relevant to take into account a person's efforts at rehabilitation, and the prospect of further rehabilitation. In assessing information bearing upon those issues greater weight should be given to evidence from independent and authoritative sources including, presentence reports and parole assessments, as well as psychological assessment reports: clause 10.1.2(2)(b) of Direction [41].
Consistent with those provisions of Direction [41], the recency of Mr Amohanga’s September 2011 conviction indicates a relevant risk of re-offending. In addition, Mr Amohanga has a problematic history involving a failure to comply with good behaviour bonds, community service orders and apprehended violence orders. That history is partly evident in the accompanying Table. The Minister relies on these matters as significant considerations suggestive of the risk of Mr Amohanga re-offending. There is some justification for that view.
There is a long history of Mr Amohanga’s professed attempts at rehabilitation, and his willingness to seek and obtain assistance. It shows a variable pattern. In the most recent years, relating to his release on parole in early 2011, it shows a definite lack of co-operation with the Parole Service.
A Pre-Sentence Report prepared in November 1999, relating to his conviction for assaulting JD, attributes to him an acknowledgement that he has a problem with anger management. It records Mr Amohanga’s expressed remorse and willingness to attend counselling. It says that he has in fact reported to the Parole Service as required. It would appear that JD supported him. It would also appear from the contents of the report that the then recent death of JD’s son (in April 1998) was recognised as a significant stressor in their relationship. Following this report Mr Amohanga was bound over to be of good behaviour in relation to the November 1999 conviction.
But by November 2000 he was subject to reporting obligations to the Parole Service arising out of a bail undertaking, following his June 1999 arrest for supplying cannabis. The 22 November 2000 Parole Service Report records that Mr Amohanga had failed to make any follow up contact with the Parole Service after his November 1999 conviction. He had, on the other hand, been reporting substantially as required by his current bail undertaking. The November 2000 Report said that he had expressed some interest in attending counselling for the grief and loss issues he believed underpinned his current behaviour. The Report speculated as to whether this contrast, between his past non-compliance and promised future co-operation, reflected a more mature response to his obligations, or a merely a self-interested response to his current situation.
That speculation was answered adversely to Mr Amohanga in a March 2001 report. It described him as having been difficult to supervise in relation to his 18 November 1999 bond. He was aggressive in his attitude, and dismissive of the Parole Service’s directions. The parole officer who authorised the report concluded that Mr Amohanga would only be likely to co-operate with the Parole Service to the extent required to achieve a positive outcome for imminent court appearances, or to avoid action being taken against him for breach of his bond.
In June 2001 Mr Amohanga was made subject to another good behaviour bond. This arose out a further conviction for an assault that had occurred in March 2000 (I note that this was within the period of the good behaviour bond to which he had submitted in November 1999). A condition of the June 2001 bond was that he continue to participate in a residential rehabilitation program in Newcastle – a program to which he had in fact been admitted in early June 2001. A subsequent Parole Service Report dated November 2001 records that Mr Amohanga had discharged himself from the rehabilitation program in mid-August 2001. But it offered the insight that the staff were in fact divided as to whether the program would have been of any benefit to him. The report described the main issues confronting Mr Amohanga were grief and anger management. It also noted that the Parole Service had not had any contact with him since his discharge.
A further Probation and Parole Service report dated 17 July 2002 was prepared in relation to a breach of Mr Amohanga’s June 2001 good behaviour bond. This report noted that his previous response to supervision had been poor. He had continued to struggle with alcoholic binging. This had been a contributor to his recent offences (ie the assault and resisting arrest charges in July 2002). The report speculated that Mr Amohanga might be amenable to supervision involving psychiatric and psychological treatment, and counselling and treatment for his alcohol dependence. A subsequent report dated 6 September 2002 disclosed that Mr Amohanga had been referred to a psychiatrist and been prescribed anti-depressant medication. The Report opined that Mr Amohanga was clearly continuing to suffer from depression and trauma symptoms that may require psychological assistance.
Mr Amohanga was placed on a further good behaviour bond in February 2005 in relation to his convictions for animal cruelty. A subsequent Probation and Parole Service report of 1 July 2005 disclosed that his supervision by the Probation and Parole Service had previously been terminated in September 2004. At that time he had been thought not to require further supervision and to have reached a level of stability. Further enquiries disclosed that he was continuing with psychiatric treatment, including antidepressant medication. Consequently, although the Report noted that Mr Amohanga had failed to attend, in accordance with the supervision condition in the February 2005 bond, it went on to recommend that the supervision condition be deleted.
The pattern that emerges from the various Parole Service Reports up until mid-2005 - of professed initial compliance, and then subsequent non-compliance, with supervision requirements – is somewhat diminished by the contents of the July 2005 Report. But it is also necessary to take into account that it was only two years later, in April 2007, that the events underlying his August 2010 conviction occurred.
Furthermore Mr Amohanga’s lack of co-operation with the Parole Service is reflected in further Probation and Parole Service Reports in August and October 2010. The background events leading up to the preparation of those reports is also instructive. Police incident reports disclose that Mr Amohanga was arrested on 8 April 2010 arising out of an alleged incident of domestic violence at a time when he was living with one of his cousins. It appears that when he was arrested in relation to that incident, he was also arrested on an outstanding warrant relating to the April 2007 incident. The police incident reports between April and August 2010 consistently report that Mr Amohanga failed to report in accordance with his bail conditions. Those complaints are themselves significant, although probably only in so far as they relate to the period after 26 May 2010. The complaints are misleading in relation to the earlier part of the period. This is because up until 26 May 2010 Mr Amohanga was in fact in custody, either at the Surry Hills court cells or at the Metropolitan Remand Centre.
The 24 August 2010 Pre-sentence report recorded Mr Amohanga’s acknowledgement of previous past failures to comply with Probation and Parole Service requirements. According to that report he professed to have no ongoing drug, alcohol or mental health concerns, and wanted to make a positive contribution to the community. But he was advised that due to the nature of the April 2007 offences any bond he received would be subject to a condition requiring supervision, and it was likely he would be expected to complete a domestic abuse program. Despite initial reluctance, he professed a willingness to complete the program, so that he could move on and avoid the criminal justice system in the future. On the basis of that agreement he was recommended as being suitable for a community service order, subject to ongoing supervision by the Probation and Parole Service.
The October 2010 Probation and Parole Service Report, discloses a much less compliant attitude. It complains that his behaviour was "disrespectful and utterly disgusting". He had reluctantly agreed to attend an induction meeting. But then he was significantly late to the meeting. When he was told he had arrived too late to be included in the meeting he made disparaging remarks and then left. It was this lack of cooperation that led to the revocation of the community service order, and a custodial sentence being imposed when he was resentenced on 28 October 2010.
Later Reports in August 2011 deal with Mr Amohanga’s response to supervision after his release on parole in February 2011. That response was described as “borderline” in a 9 August 2011 Report. A later report dated 31 August 2011 specifically addressed the extent of Mr Amohanga’s participation in the psychological counselling to which he had been referred to address his anger management issues. The information conveyed by the counsellor was that, whilst Mr Amohanga had attended four or five sessions, he had rarely participated and had failed to engage with them. The Report noted that an actuarial “LSI-R” risk assessment rated Mr Amohanga as having a high risk of re-offending.
The 31 August 2011 Report also noted that contact with the local police had revealed constant concerns about reported instances of domestic violence between Mr Amohanga and JD. This conveyed the probability that Mr Amohanga was in breach of the terms of an apprehended violence order that had been served on him on 24 August 2010. That was the day when he was sentenced to community service in relation to his conviction for the events of 21 April 2007.
Mr Amohanga acknowledges that his offence in July 2011 occurred only a few months after his release from prison. He says he is deeply remorseful for his past behavioural decisions and, in particular the events that occurred in July 2011. He claims he has been profoundly moved by the birth of his daughter in November 2011 and has decided that she needs to be the priority in his life. He claims he has reached a new level of maturity and that he is doing his best.
He points to the various courses he has successfully completed in his most recent period of incarceration. These include two behaviour modification courses provided by the NSW Corrective Services Offenders Program Unit (Managing Emotions and Getting SMART), a TAFE First Aid course, and a workplace safety competency course that forms part of a Certificate 1 qualification - Access to Work and Training. These courses, whilst modest achievements in themselves, do indicate efforts by Mr Amohanga. In that respect that appears to contrast with many of his previous responses to requirements to undergo parole supervision and comply with the conditions of bonds and community service orders to which he has been subject.
He explained his past difficulties with the Probation and Parole Service as based on misguided attempts to assist him. He complains that they failed to address his alcohol and mental health problems. Whilst this complaint may accurately state Mr Amohanga’s perception, it hardly seems accurate. Mr Amohanga had been offered, and had partly undertaken, a rehabilitation course in 2001. He has been referred to psychiatric treatment and counselling as far back as 2002. The fact that he was still attending a psychiatrist and receiving treatment in July 2005 was one of the reasons why the supervision requirement was deleted from his good behaviour bond conditions at that time. He told the Parole Service in August 2010 that he had no ongoing drug, alcohol or mental health issues.
Nevertheless, Mr Amohanga did say he had particularly benefitted from his recent completion of the addictive behaviours program “Getting SMART”. He described its scope in addressing a broad range of addictive behaviour issues. But other evidence Mr Amohanga gave suggests that he was already aware of his alcohol problems and had attempted to address them. He said that over the years he had moderated his use of alcohol, but conceded that he would tend to drink more than normal when he was depressed. But he also said that he had made a real attempt to address his behavioural issues.
It is at least consistent with that claim that a report from the New South Wales Probation and Parole Service to the Department in February 2012 indicated that he has not incurred any institutional misconduct offences during his time in custody. The same is true of his prison behaviour during his incarceration between October 2010 and March 2011. That was noted in a Report dated 1 March 2011. The same report noted that Mr Amohanga had presented at initial interviews, in December 2010, as aggressive and belligerent. However, he had mellowed over subsequent interviews and demonstrated a more co-operative attitude prior to his release on 27 February 2011.
Complaints that the risk of re-offending is overstated
The information in the Probation and Parole Service Report to which I have referred provides a background that reveals Mr Amohanga’s long history of struggles with alcohol abuse, anger and domestic violence. Typically that domestic violence has been directed at JD. But Mr Amohanga complains that it is a gross and inaccurate oversimplification to interpret his criminal history as indicating that he is a “woman bashing thug”. He described JD’s mental illness and unpredictability, which he traced back to the period after the death of her son in April 1998. Mr Amohanga described JD as very troubled, unpredictable and sometimes violent. She could be good when she took her medication. But she often did not. She herself could be violent.
He said that in about 2000 she had been admitted to Cumberland Hospital. A custody battle over the children had then ensued between himself and her parents. Her parents obtained custody over the children, and he was only permitted access for three hours a month. He moved out of the area and lost contact with her for a considerable period. He discovered that her parents had arranged for her to go back to New Zealand for further treatment.
After JD came back to Australia he had received reports of her being in various women’s refuges and later living on the streets. He had endeavoured to help her. That was why they were living together at the time of the April 2007 incident. After that incident, they had moved up to Queensland, and remained there for several years. Thereafter they separated. After his arrest in 2010, and subsequent release on bail, he had been living near his elder sister in the Port Kembla area. JD had come to visit him there.
He explained the circumstances of an argument between them at a motel in late October 2010. When they became involved in a heated argument, Mr Amohanga had himself gone to the local police station and reported to them that JD had an outstanding warrant for an assault she had committed whilst at a women’s refuge when they had been living in Queensland. This explanation appears to be consistent with the relevant police incident report.
I accept that JD’s circumstances are very difficult. I accept also that she has, to a degree both sought out Mr Amohanga from time to time, and actually encouraged him to reside with her, despite apprehended violence orders against him relating to her. That reality is explicitly recorded in the police incident report of a complaint about another incident of domestic violence between Mr Amohanga and JD on 10 July 2011. In that report, which relates to events only about three weeks before the incident on 31 July 2011, JD is recorded as informing the police that she wanted Mr Amohanga to be allowed to be at her residence. She said that they were working on their relationship and that he wanted to be part of the life of the child she was then carrying. The fact that she was then pregnant to Mr Amohanga obviously conveys the reality that they had resumed an intimate relationship shortly after his release from prison at the end of February 2011.
Looking back at Mr Amohanga’s record of convictions for violence, the more significant convictions are for assaults on JD. In the months leading up to 31 July 2011, there were numerous reported incidents of violence, or apprehensions of violence, directed at JD.
In order to highlight in these proceedings the limited risk of his future re-offending, Mr Amohanga has declared his resolve not to have any future close contact with JD. I am not satisfied that it would be proper to deal with the present proceedings on the basis of accepting the reliability of that declaration. There are several reasons why I am not satisfied. The first is the reality of their longstanding relationship, and their past inability to remain separated. The second is that Mr Amohanga’s history of dealing with the Probation and Parole Service reveals his long history of simply not carrying through on declarations about his willingness to behave responsibly and comply with directions and requirements relating to his ongoing good conduct. Thirdly, he has a documented history of difficulty with anger management and I do not accept the proposition that his capacity for violence is uniquely directed against JD. Finally, even if it is correct to regard JD’s difficult behaviour as something of a catalyst in past incidents of assault, it does not detract from the apparent level of his violence and it does not, therefore, relevantly reduce concern about the risk of future harm.
The significant point, in my opinion, is not one of assigning reasons or blame for the likelihood of future contact between Mr Amohanga and JD. JD is plainly both a difficult and a vulnerable person. The long history of the relationship between them evidences some attraction between them, his perception of a willingness to provide some assistance to her (a perception that may have some factual basis), their shared grief, some aspirations for happiness together, and the repeated frustration of that aspiration by their inability to cope with the real stresses and burdens of their interaction. Against that history, and the reasons that underlie it, it is perhaps the inescapable reality, and certainly a real risk, that they will in the future, interact closely again, as they have in the past. To anticipate that reality is not to predict Mr Amohanga’s culpability for that interaction, or to reject totally his presently stated intention to avoid further close contact with JD. It is simply a matter of apprehending the inevitability of that future interaction, and to recognise the risk of future violence it may occasion – as it has in the past.
That risk seems only to be increased by Mr Amohanga’s resolve to pursue custody of their daughter Aria. Mr Amohanga at one stage planned to move to the Gold Coast. That would have seen him move well away from JD. His revised intention is to get a job close to the city, find suitable accommodation and then pursue a claim for full custody of Aria. He says that JD’s parents are approaching retirement age and cannot be expected to look after Aria indefinitely. He laments that JD cannot be relied on to take her medication, and is not a competent parent. This course of action would seem to increase the likelihood of further interaction with JD.
I consider it necessary to approach the exercise of the visa cancellation power on the basis that there is a real risk of Mr Amohanga re-offending in the future by engaging in violent assaults, particularly assaults of the kind of which he has been previously convicted involving JD. That risk is a primary consideration that favours cancellation of Mr Amohanga’s visa.
Best interests of children
Mr Amohanga has three natural children – a daughter K, JD’s son F, and JD’s infant daughter Aria. JD has another daughter - W - whom Mr Amohanga says he recognises as his own child.
K is almost 17 years of age, and still at school. She lives in Penrith with her mother’s family. Mr Amohanga has had no direct contact with her, except comparatively recently via Facebook. He does not deny his relationship with K (and F) is somewhat distant.
F is also almost 17 years of age. Since the custody proceedings in about 2000, F has been raised by JD’s parents. At the time of the custody proceedings Mr Amohanga was living at Guildford. JD’s parents lived nearby. He stayed living there for the next 6 months, for the purpose of maintaining access to the children. But JD’s parents were unresponsive. He moved away from the area in 2001. He said in evidence that he moved to Campbelltown and stayed there for a couple of years. After that he lived out in the Merrylands/Campbelltown area, until he moved to the Gold Coast sometime after about mid-2007. Mr Amohanga claims to have had “normal” contact with F on a weekly basis, other than when he has been prison. In those periods their only contact has been by phone.
Mr Amohanga’s initial claims about the extent and regularity of his contact with F are unlikely to be accurate. Police and Parole Service records record that Mr Amohanga lived in Newcastle for a time in about mid-2001. Thereafter he moved to Melbourne for a time. Between about December 2001, until at least July 2002, he lived at a Salvation Army facility in Surry Hills. His address remained in the Surry Hills & Darlinghurst areas of Sydney until mid-2006. He did return to the Guildford area for a few months in 2007. For the next few years he lived on the Gold Coast with JD. After his return in 2009, he lived in the Port Kembla/Wollongong areas.
Mr Amohanga has only been in telephone contact with F whilst he has been in custody. He says that his limited contact has affected F. He suggested that there had been some falling out between F and his grandmother. He claimed that for the last 10 months (a period that might be more than merely coincidental with Aria’s age – for reasons that will appear later in these reasons) F had been living with JD’s brother. He claimed that F wanted to go and live with his mother JD. This claim seems rather unlikely to be accurate – in light of the evidence from both Mr Amohanga and Ms JC (to whom I later refer) about JD’s mental health, and her unsuitability as a parental carer.
W is JD’s eldest daughter. She is 18 years old and lives with her paternal grandparents in Blacktown. She lived with Mr Amohanga and JD up until about 1999.
Notwithstanding the limited credible evidence of Mr Amohanga’s significant involvement with F, I accept that it is in F’s best interests, in order to facilitate such contact as he wishes to have, that Mr Amohanga remain in Australia. But against a background where they have had limited past interaction, and have not lived together since F was a very young child, I consider that Mr Amohanga’s removal from Australia and return to New Zealand would not be likely to detract significantly from F’s best interests. I reach the same conclusion, for essentially the same reasons, in relation to W.
Aria is the child JD was carrying when she was assaulted by Mr Amohanga on 31 July 2012. She was born in November 2011 and is now 9 months old. Her situation was the subject of evidence from JC, the Department of Community Services Case Work Manager who is responsible for Aria’s care. Ms JC contacted the Tribunal after the original hearing had been completed and the decision reserved. In response to her indication that she had relevant information about Aria’s care and best interests, and with some encouragement from the Tribunal, the Minister arranged for Ms JC to give further evidence at a resumed hearing. In the light of the evidence Ms JC gave, this was an appropriate, and much appreciated, additional assistance to the Tribunal.
Ms JC explained that she had contacted the Tribunal as a result partly of her own suspicions that JD and Mr Amohanga were communicating, despite the terms of the current apprehended violence order that applies to Mr Amohanga. She also recounted observing interaction between Mr Amohanga and JD when he has attended court in connection with the custody proceedings concerning his access to Aria. She noted that JD and Mr Amohanga had been seen to embrace and it was obvious to her that they still had a relationship. However Ms JC also recounted her recent chance meeting with JD. JD had appeared unwell, told her she was frightened by Mr Amohanga and scared about what might happen once he was released. It was principally this interaction, JD’s apparent fears about Mr Amohanga’s future behaviour, and Ms JC’s awareness of the history of domestic violence between them, that prompted Ms JC’s approach to the Tribunal. In the course of the evidence that she gave Ms JC made it clear that she was not seeking to convey an apprehension that Mr Amohanga would deliberately set out to ignore any supervision requirement or apprehended violence order. Her point was the more significant one that, irrespective of which of them initiated it, the nature of the relationship between Mr Amohanga and JD, and JD’s own instability, made it virtually inevitable that there would be future contact between them. And any such future contact was likely at some stage to degenerate into significant domestic violence – as it has in the past.
In relation to Aria, Ms JC explained that the Department’s concern about Aria’s welfare arose months before she was born. Before her birth the Department of Family and Community Services had received 13 mandatory notifications of concern about risks to her wellbeing. These notifications all involved concerns about JD’s mental health, and associated incidents of domestic violence between Mr Amohanga and JD. Long before Aria was born, it was readily apparent to JC that because of JD’s mental health issues it was in Aria’s best interests to be removed from JD’s care. Because of that view the Minister for Community Services took Aria into care immediately upon her birth.
Subsequently, in about January 2012, Aria was placed in the foster care of her maternal grandmother, the person who had also raised F and W. The Department case work team members responsible for Aria are satisfied that she is receiving excellent care from her maternal grandmother. Ms JC had arranged for subsequent assessments to be made of JD’s suitability to have custody of Aria. Ms JC said there is no prospect of Aria being returned to JD’s care.
In relation to Mr Amohanga Ms JC explained that, because he was in custody, no assessment of his parental care suitability had been carried out. Aria had been taken to two contact visits with Mr Amohanga whilst he has been in immigration detention since his visa cancellation. Ms JC said he had done a really good job in attending to Aria during those visits. Nevertheless she did not see it as a likely future option that Mr Amohanga would ever obtain responsibility for Aria’s care. Her apprehension was fuelled by (i) a strongly held view that JD was a totally unsuitable carer, and that (ii) that placing Aria in Mr Amohanga’s care (even assuming that he was assessed as suitable in other respects) would inevitably expose Aria to the unacceptable risk of unsupervised and continuing contact with JD.
Ms JC explained that the current proposal by the Minister for Community Services is that the Minister should remain formally and finally responsible for Aria’s care and protection. This is partly because they consider that it is in Aria’s best interests to have periodic access visits from both JD and Mr Amohanga, and partly because the maternal grandmother would likely refuse all access by either of them, if the matter of access was left solely for her to determine. The maternal grandmother has a dysfunctional relationship with both her own daughter JD and with Mr Amohanga. Her interaction with JD has been known to result in violence. She has informed the Department’s case workers that she would contemplate moving interstate in order to avoid having to interact with Mr Amohanga.
The Department casework team currently propose to prepare and obtain court approval for a care plan that would see the maternal grandmother retain long term custody of Aria, subject to the Minister’s ultimate responsibility. Mr Amohanga will have bimonthly access to Aria, if and when he is released into the community. If Mr Amohanga was returned to New Zealand, the Department would fund twice yearly visits to New Zealand by Aria and a carer. There are already plans for Aria to have to be taken to New Zealand periodically, in order to visit two of JD’s other children. Those children were born to JD when she lived in NZ, between about 2000 and 2006. Mr Amohanga is not the father of those children.
Aria’s situation is a very difficult one for all those concerned about her welfare. Ms JC’s evidence discloses a situation where her natural mother is a totally unsuitable carer. Her natural mother and father have what appears to be a deeply flawed relationship that has been characterised both by real violence, and some kind of irresistible bond that seems to compel the interaction that gives rise to the risk of violence. Her grandmother is her foster carer, but apparently weary of the burden of having to interact with her parents. Indeed, Ms JC’s evidence is that the grandmother has a hostile relationship with both JD and Mr Amohanga. There seems no real prospect that, for the foreseeable future Mr Amohanga will succeed in obtaining anything more than periodic access to Aria, and no more than 2 to 6 times a year.
At a general level it is proper to accept that it is in Aria’s best interests to facilitate a future relationship with her natural father. Those interests may be heightened by the assessment of JD’s total unsuitability to perform a long term caring maternal role – assuming Mr Amohanga is himself a suitable parental carer (a matter that has not been evidenced by his past involvement with K, F and W, and has not been assessed for the future). But on the other hand, the extent of Mr Amohanga’s foreseeable direct future contact with Aria is likely to be very limited. And it is a direct contact that the Minister of Community Services would facilitate, though with a lesser frequency, even if Mr Amohanga was returned to New Zealand.
In the difficult circumstances that exist, I conclude that it is in Aria’s best interests to maintain direct contact with Mr Amohanga. I also conclude that it is in her best interests that physical interaction of that kind should occur more often than would be possible if Mr Amohanga returned to New Zealand. But in the situation of the hostile relationship between her grandmother/principal carer, on the one hand, and each of her natural parents on the other, and the risk of future violence and dysfunction in the relationship between Mr Amohanga and JD, I do not consider that those interests are a telling consideration in favour of setting aside the visa cancellation decision.
Other considerations - family ties
Mr Amohanga lived with his parents at Kempsey until he was about 26, when they moved back to New Zealand for a second time. They came back in about 1999, lived at Merrylands for a time, and then moved to the Gold Coast 10 years ago. He referred to his mother currently undergoing treatment for breast cancer. His father suffers from asthma, and was recently hospitalised. They were present for part of the first day of the present hearing, but his father had to return to the Gold Coast for a medical appointment. He described them as old and frail. He lamented that he was the only one of his siblings who could speak his parent’s native tongue and, consequently, the only family member who could provide his father with the proper burial rites to which he was entitled as a Maori chief.
Mr Amohanga said in his letter of 28 January 2011 to the Department of Immigration, that he came from a loving supportive family that was law-abiding and churchgoing. He said he was brought up well loved and disciplined. He claimed to have a close relationship, and regular weekly contact, with all his siblings and both of his parents.
Mr Amohanga has an older sister who also lives on the Gold Coast. A younger sister and her family live in Brisbane. His other three siblings live in New South Wales. His older sister resides in the Port Kembla area. An older brother is a builder who lives in Manly. A younger brother is in custody, and has been for some considerable time.
Mr Amohanga claimed that his return to New Zealand would have a profound effect on many of his nieces and nephews because he provided spiritual support to them and was an important male figure in their life. He claimed that he tried to lead them on the right track.
Apart from his siblings Mr Amohanga has numerous other close relatives, all of whom lived in Australia.
I accept that Mr Amohanga has extensive family ties in Australia. However both his parents and two of his siblings live on the Gold Coast, too far away for regular physical interaction. And he gave little evidence of the extent of his interaction with his elder brother. The evident physical separation of the family members in Australia materially lessens the extent of the family disruption that is likely to be associated with his return to New Zealand if the visa cancellation decision is upheld. Nevertheless, I accept that his return will cause disappointment to the members of the family, both immediate and extended. That prospect is a matter that favours setting aside the cancellation decision.
Other considerations – relationship
I have referred earlier to the fact of Mr Amohanga’s long standing relationship with JD.
JD was 21 years old and still living with her parents when F was born (in 1995). Between about 1996 and 1999 they lived together, with the three children K, F and W. Sometime after the traumatic death of a fourth child (in about April 1998), JD suffered a nervous breakdown. They stopped living together. Her parents obtained custody of the children. JD went back to NZ in about 2000. Unknown to Mr Amohanga she had two further children whilst she was in New Zealand. She came back to Australia in 2005.
Mr Amohanga re-established contact with JD after a mutual friend told him about her return and that she was not getting any support from her own immediate family. Mr Amohanga said he went and visited her at a women’s refuge where she was staying. He says he helped her find accommodation and to obtain a disability support pension. That was some time in 2006 or early 2007. Later she was evicted for failing to pay rent and she came to live with him, because she had nowhere else to live. He thought that was just before Christmas 2006. They stayed living together in Guildford until after he was arrested in April. They were evicted because he was unable to pay the rent during the period he was in custody.
After release on bail in 2007 Mr Amohanga lived with one of his cousins at Strathfield. JD used to visit him there and stay the night. But she was not taking her medication. He stopped having contact with her. She ended up back in hospital in the later part of 2007. She had no family support. She went back to a women’s refuge at Potts Point. But she apparently caused some disturbance there that resulted in the police being called and she was forced to leave. He then helped her obtain temporary accommodation with the Salvation Army. Subsequently he got a phone call from friends that she was living rough in the streets.
After that Mr Amohanga and JD moved to Southport on the Gold Coast. He says that they lived together there for most of 2008 and part of 2009. There they lived together in a home unit. JD worked as a receptionist. He worked part-time for the Gold Coast City Council.
I doubt that the relationship between Mr Amohanga and JD in Queensland between 2007 and 2009 was uneventful. Other evidence from Mr Amohanga disclosed that JD was involved in some incident in a womens’ refuge in Gladstone, and that the incident resulted in a warrant being issued for her arrest.
In any event, they had returned to Sydney by late 2009. Mr Amohanga went to live with one of his cousins at Strathfield. Before his arrest in early April 2010, he was working as a scaffolder. After his release from custody, at the end of May 2010, he went to live with his sister in the Port Kembla area. JD was living either in women’s refuges or staying at her mother’s house.
Later in 2010, JD began to visit Mr Amohanga where he was living. He says she was complying with her medication at the time, and they began to talk about moving in together again.
It was against this, obviously abbreviated, version of the background of the relationship between himself and JD that Mr Amohanga complained that a lot of the evidence portraying him as violent towards JD was misdirected, because it did not pay sufficient regard to the extent and severity of JD’s mental health issues. He said that by the time of the incident in July 2011 JD had not been taking her medication for over 6 months. He claimed that he had contacted the mental health authorities several times to provide assistance in getting her to take her medication. He claimed that the response to his requests for help was that her condition was not sufficiently serious for them to intervene. His complaint was that every time she had relapsed it was whilst he had not been living with her.
Given the repeated complaints of domestic violence in the months before July 2011, Ms JC’s evidence about JD’s statement to her that she was scared of Mr Amohanga, his account of the history I have just outlined is likely to be somewhat selective in his favour. Police incident reports, and Ms JC’s evidence, suggest that the relationship between JD and Mr Amohanga is one of both complexity and considerable stress. It would seem that she has no productive relationsip with her own parents, materially contributes to at least some of the tension in the relationship with Mr Amohanga and is, at least on Mr Amohanga’s perception of events, irresistibly drawn to him for assistance and some measure of support.
If the evidence was limited to Mr Amohanga’s uncorroborated account of the relationship, I would be reluctant to come to the view that JD derived any benefit from the relationship with him, or would suffer any hardship as a result of his return to New Zealand. The evidence of Ms JC, about her observations of their interaction, and her awareness of the telephone communications between JD and Mr Amohanga, does provide a measure of corroboration. Her evidence suffices to bestow credibility on the general thrust of Mr Amohanga’s evidence – that he does provide her with a measure of support, and that she resorts to him to obtain it.
However there is, in the light of the history of violence between Mr Amohanga and JD, no sufficient basis for concluding that his removal from Australia, as a result of the cancellation of his visa, will expose her to hardship that should influence me in favour of setting aside the visa cancellation decision. The view to which I have reluctantly come is that Mr Amohanga and JD, despite their emotional interconnection, and perhaps their aspirations, simply do not have the personal skills and self-control necessary to sustain a meaningful relationship without exposing at least JD to the risk of violent assault. I conclude therefore that the relationship between Mr Amohanga and JD, in the sense of whatever emotional dependency and commitment they have between themselves, does not provide a reason to set aside the cancellation decision. On the contrary the apparently flawed nature of the relationship informs my view that there is a real and high risk of Mr Amohanga re-offending.
Other considerations - age and health
Mr Amohanga is 44 and in good health, apart from his history of PTSD and asthma. I note that in the information he provided to the Department in his 13 March 2012 Personal Details, his only prescribed mediation was his asthma puffer. He had not been prescribed any other medication. Neither was he undergoing counselling.
Mr Amohanga’s correspondence with the Minister, and his self-representation in these proceedings, displays a good level of literacy and self-expression. His evidence discloses that he has been able to sustain employment working as a scaffolder and renderer. To that extent he has, since at least 2002, and apart from his subsequent periods of imprisonment, made a positive contribution to the Australian community.
Mr Amohanga’s experience in the building and construction industry would work to his advantage in New Zealand, in promoting his prospects of employment.
Apart from his periods of employment, Mr Amohanga has been able to obtain appropriate access to the social security system, as and when the need has arisen. There is no evidentiary basis to apprehend that, apart from the inevitable need to familiarise himself with a new jurisdiction, he would be materially disadvantaged, in that respect, if he was required to return to New Zealand.
Other considerations - hardship
Mr Amohanga says he has no familial ties in New Zealand. There is no evidence to the contrary. I accept therefore that his return to New Zealand, where he lived only briefly, with his parents, when he was 15 is a factor that tells against the appropriateness of cancelling his visa.
Whether and to what extent any of his immediate family members will be able to visit him is not specifically disclosed by the evidence, and is a matter of inference. The fact that his parents have travelled to New Zealand on occasions in the past perhaps provides some slight indication that they may be capable of some occasional visits to him. His daughter Aria will be funded for visits twice a year. I consider it proper to conclude there is a likelihood that Mr Amohanga will have few family visits and that the consequential isolation and emotional hardship is another consideration that tells against the cancellation of his visa.
On the other hand, New Zealand is a country with considerable similarities with Australia. In addition, it is apparent from Mr Amohanga’s evidence that he retains a strong identification with his Maori heritage, including being able to speak his father’s native tongue. At least to that extent, the prospect of returning to a country where that heritage is a prominent aspect of the New Zealand culture, will somewhat ameliorate the hardship associated with the consequences of visa cancellation.
Warning
I referred in paragraph 3 above to the warning that was given to Mr Amohanga in February 2011, and which he acknowledged in May 2011. The fact that Mr Amohanga re-offended so soon after that acknowledgement is a consideration that favours cancellation of his visa.
Additional documents – rejection in accordance with section 500
In the course of the hearing Mr Amohanga sought to tender a number of documents that had been provided in timely manner to the Tribunal, but not to the Minister. Those documents included (i) various educational certificates relating to courses that were referred to in paragraph 10 of the cancellation decision itself, (ii) various supporting references from Mr Amohanga’s friends, siblings and from JD.
The Minister’s representative objected to these documents, relying on the “two day rule” set out in ss 500(6H) and (6J). After these documents were provided to the Minister, I invited the Minister’s representative to consider whether any of the material should be tendered by the Respondent. That invitation was accepted, in relation to the educational certificates. The objection was maintained in relation to the other documents. I reject them, having regard to the provisions of the Migration Act to which I have referred above.
In Reedy v Minister for Immigration and Citizenship [2011] AATA 363, SM Isenberg summarised the effect of a number of decisions dealing with the effect of the “two day rule” provisions. The relevant parts of SM Isenberg’s reasons are set out below:
[19] In Geum Su Kim and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 239, DP Block concluded, at [106], that three propositions could be discerned about the application of ss 500(6H) and (6J), having regard to Goldie v Minister for Immigration and Multicultural Affairs (1999) FCA 1277 (and also as applied in SAAC and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1209; Msumba and Department of Immigration and Multicultural and Indigenous Affairs [2000] AATA 87 and Re Trinh and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1306). Those propositions are, at [106]:
(a) However wide a meaning can be given to the term “statement” it must refer to a statement containing information to be presented orally in support of a person’s case; it cannot have so extended a meaning that it encompasses a letter written in a professional capacity on behalf of a person
(b) The prohibition applies only to evidence presented in support of a person’s case. (See in this particular regard Deputy President Forgie in Trinh (above))
(c) The prohibition may apply to evidence given in chief but not to evidence elicited in cross-examination.
[20] The Full Federal Court made it clear in Goldie that the purpose of ss 500(6H) was to give the Minister an opportunity to answer the case being put by an applicant. The two-day rule does not, however, prevent an applicant in examination-in-chief from explaining or amplifying material in the written statement, and that information can be tested by cross-examination. Information elicited in that way can be used to support an applicant’s case: per Msumba at [5].
The propositions to which SM Isenberg referred make clear a matter that is readily apparent from the terms of the provisions themselves – that there is no prohibition on regard being had to documents and information that are presented by the Minister. Indeed, one of the purposes of the “two day rule” is to provide precisely that opportunity, especially information that is in further response to material disclosed by the Applicant’s proposed evidence.
The circumstances of this case disclose a situation where some of the material provided by the Applicant was material which, if decision makers paid full regard to their obligations under Direction [41], could reasonably be expected to have been obtained, and considered as part of the original cancellation decision itself. In making that observation I do not intend to convey any criticism of either the primary decision maker in this matter, or the Minister’s representative who appeared in the proceedings. Indeed, I wish to convey my appreciation to the latter, for her assistance in providing further material and in securing the evidence of Ms JC, in particular.
Nevertheless, in a case of the present kind it was always going to be relevant and important to establish both the true nature of Mr Amohanga’s family situation, and the position of JD.
As to the family members, I refer specifically to the terms of clause 11(3)(e) of Direction [41]. That clause, after referring to the need to consider the prospect of a visa cancellation decision causing hardship to the person and immediate family members, concludes with the statement that “where possible, this information should be obtained through interviewing the person and their family members”.
In the case of JD I refer specifically to the terms of clause 11(3)(a)(ii)(A). It refers to the need to consider the degree to which the partner is financially, physically or psychologically dependent on the non-citizen (and if applicable) the impact of separation resulting from the person’s removal from Australia.
I wish to raise for the consideration of primary decision makers the question whether in some instances proper compliance with what appears to be the plain meaning and implications of Direction [41] are being subordinated to the convenience of an illusory procedural regularity. It seems difficult to arrive at a conclusion that considerations have been properly “taken into account” where obvious enquiries, including those specifically contemplated by Direction [41] have not been made. And it is both unsound and inadequate to rely on the procedure of providing notice of intention to consider cancellation, and expect that the visa holder will alert the primary decision maker to all relevant considerations.
There are at least two obvious reasons why undue reliance on the notice of intention procedure may be misplaced, and should be conscientiously avoided. The first is that many of the non-citizens whose visa cancellation is contemplated will be in custody. That fact alone limits their capacity to obtain and provide all the potentially relevant information. There is the additional risk that at least some visa holders confronted with the threat of visa cancellation will lack the literacy and comprehension skills required to fully address the relevant considerations. The second is that there will at least sometimes be instances where it is not in the visa holder’s self-interest to provide all the relevant information.
I wish to raise a further consideration for representatives of the Minister in conducting proceedings of the present kind before the Tribunal. That consideration is the relationship between the prohibition in ss 500(6H) and (6J) and the obligations to which primary decision makers are subject under s 33(1AA) of the Administrative Appeals Tribunal Act 1975. That relationship may require earnest consideration in at least these situations:
(a)where it is obvious that the primary decision has been made without proper regard to, and consideration of, information that Direction [41] required to be obtained and considered;
(b)where the information provided by an Applicant highlights both the likely inadequacy of the information that the primary decision maker took into account, and the existence of additional material information;
(c)where an Applicant provides information that is clearly material to the decision under review, and which causes the decision maker no disadvantage in testing or meeting, even though it has not been provided in compliance with the “two day rule” provisions.
An Applicant’s failure to comply with the “two day rule” should not encourage the Minister’s representatives to adopt, if they ever do, any view that the failure justifies a merely reflexive objection to that material being provided to the Tribunal. There are likely to be some instances where the material is of such a nature that it is essential for it to be placed before the Tribunal, if the Tribunal’s decision is indeed to be the correct or preferable decision required by the properly informed exercise of the statutory review function.
Decision
Three of the primary considerations point, although they do not in my consideration of the relevant circumstances weigh heavily, against visa cancellation. Some of the other considerations also point against cancellation, because of the disruption and hardship to Mr Amohanga, and his family, associated with his removal to New Zealand and the transition that will involve.
However, the primary consideration requiring an assessment of the risk of harm points significantly in favour of upholding the cancellation decision. Mr Amohanga has a long history of violence against JD. He has had, over many years, ample warnings about his behaviour, and offers of assistance from the Parole Service. In 2005 he was thought to have stabilised and not to require further supervision. Thereafter he assaulted JD. He re-offended in July 2011. That offence occurred when he was on parole, but not genuinely complying with his supervision requirements, and shortly after he had been warned that any re-offending would weigh heavily against him in any reconsideration of his visa status. It also occurred when he was subject to an apprehended violence order relating to JD.
The decision under review is affirmed.
I certify that the preceding 138 (one hundred and thirty eight) paragraphs are a true copy of the reasons for the decision herein of Mr P W Taylor SC, Senior Member.
.......[sgd]...............................................
Associate
16 July 2012
Date of hearing 2 and 3 July 2012 Representative for the Applicant Self Solicitor for the Respondent Ms C Darcy, Litigation Division, Immigration & Citizenship Table 1:
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