DONALD STEVEN GILES and MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2012] AATA 104
•22 February 2012
[2012] AATA 104
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/5153
Re
DONALD STEVEN GILES
APPLICANT
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
RESPONDENT
DECISION
Tribunal Deputy President S D Hotop
Date 22 February 2012 Place Perth Decision under review affirmed.
.................[sgd]..............................
S D Hotop
Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – visa – cancellation – applicant a New Zealand citizen – applicant has criminal record in New Zealand from 1991 to 2001 – applicant first arrived in Australia in 2005 when aged 33 years – applicant falsely declared on incoming passenger card that no criminal convictions – applicant committed offences in Australia from July 2009 to December 2010 – applicant formally warned about possible visa cancellation if further offences in June 2010 – applicant does not pass character test – discretion to cancel visa – primary considerations and other relevant considerations – protection of Australian community outweighs best interests of child and other relevant considerations – preferable decision is that visa be cancelled – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 501(2)
Direction [no 41] – Visa refusal and cancellation under s 501
CASES
Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 390
REASONS FOR DECISION
Deputy President S D Hotop
22 February 2012
INTRODUCTION
Donald Steven Giles (“the applicant”) has applied to the Tribunal for review of a decision of a delegate of the Minister for Immigration and Citizenship (“the respondent”), dated 21 November 2011, cancelling his Class TY Subclass 444 Special Category (Temporary) visa (“the visa”) under s 501(2) of the Migration Act 1958 (Cth) (“the Act”).
THE FACTUAL BACKGROUND
The applicant was born in January 1972 in New Zealand and he is a citizen of New Zealand. He first arrived in Australia on 11 March 2005 and, with the exception of the periods 3–17 March 2007 and 26 February-13 March 2009 when he was outside Australia, he has remained in Australia.
On 22 February 2011 the applicant, on his pleas of guilty, was convicted in the Fremantle Magistrates Court of the following offences, and he received the following sentences:
·Aggravated Stalking – imprisonment for 12 months
·Breach of Suspended Sentence Order – imprisonment for 6 months (cumulative)
·Breach of Suspended Sentence Order – imprisonment for 2 months (cumulative)
·Breach of Suspended Sentence Order – imprisonment for 2 months (concurrent)
·Breach of Violence Restraining Order – imprisonment for 4 months (concurrent)
·Threatening to Injure, Endanger – imprisonment for 4 months (concurrent).
or Harm a Person
His total effective sentence was 20 months’ imprisonment from 22 February 2011, and he was made eligible for parole.
By letter dated 4 May 2011 an officer of the Department of Immigration and Citizenship (“the Department”) formally notified the applicant that the visa was to be considered for cancellation under s 501(2) of the Act and gave him the opportunity to comment. The applicant provided to the Department a written submission and supporting documents on 28 June 2011 and a further submission on 23 September 2011.
On 21 November 2011 a delegate of the respondent decided to cancel the visa under s 501(2) of the Act.
THE RELEVANT LEGISLATION
Section 501(2) of the Act provides:
“ The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.”
The “character test” is defined in s 501(6) of the Act which specifies various alternative circumstances in which a person does not pass the “character test” within the meaning of that section. In the present case, the relevant circumstance is that specified in para (a) of s 501(6), namely, “the person has a substantial criminal record (as defined by subsection (7))”. Section 501(7) specifies five alternative circumstances in which, for the purposes of the “character test”, a person has a “substantial criminal record”. In the present case, a relevant circumstance is that specified in para (c) of s 501(7), namely, “the person has been sentenced to a term of imprisonment of 12 months or more”.
THE MINISTERIAL DIRECTION
In reviewing the delegate’s decision in this matter pursuant to s 500 of the Act, the Tribunal is required, by s 499(2A) of the Act, to comply with a direction given by the respondent under s 499(1) of the Act. The relevant direction, as presently in force, namely, Direction [no 41] – Visa refusal and cancellation under s 501 (“Direction [41]”), was given by the respondent on 3 June 2009 and commenced on 15 June 2009. Part A of Direction [41]:
“ provides directions on the application of the character test ... set out in section 501(6) of the Act;”
and Part B:
“ provides directions on the primary and other considerations that are relevant to determining whether it is appropriate in the specific circumstances of the case to exercise the discretion to refuse to grant or cancel the visa. …”
Direction [41] will be relevantly referred to in more detail later in these reasons.
THE EVIDENCE
The evidence before the Tribunal comprised:
·the “G Documents” (G1–G27, pp 1−181) lodged by the respondent on 20 December 2011 (Exhibit R1);
·the Respondent’s Further Documents (pp 1–5) filed on 30 January 2012 (Exhibit R2);
·statement of the applicant dated 7 February 2012 (Exhibit A1);
·a bundle of documents filed by the applicant on 7 February 2012 (Exhibit A2); and
·the oral evidence of the applicant.
THE APPLICANT’S CRIMINAL HISTORY
New Zealand
The applicant’s recorded criminal history in New Zealand is set out in a New Zealand Police document produced under summons by the New Zealand Ministry of Justice (Exhibit R2, pp 4–5).
The applicant’s criminal record in New Zealand (in chronological order) is as follows:
Court
Date
Offence
Sentence
Porirua District Court
11 July 1991
Shoplifts (over $500)
Order for Return of Property
Enters with Intent
Reparation - $225/Order for Return of Property
Wellington High Court
2 October 1992
Aggravated Robbery (Manually)
Imprisonment (Concurrent) 2 years
Unlawfully Takes Motor Vehicle
Imprisonment (Concurrent) 6 months
Porirua District Court
8 September 1994
Common Assault (Manually)
Fine $500
Porirua District Court
28 September 1995
Wilful Damage
Imprisonment (Concurrent) 1 month
Resist Police
Imprisonment (Concurrent) 1 month
Wilful Trespass
Imprisonment (Concurrent) 1 month
Assault Person With Blunt Instrument
Imprisonment (Concurrent) 7 days, 1 year
Whangarei District Court
11 August 1997
Common Assault (Manually)
Non Residential Periodic Detention 3 months
Whangarei District Court
23 February 1999
Other Burglary (Other Property)
Supervision by Community Corrections 9 months/Imprisonment (Cumulative) 6 months
Male Assaults Female (Manually)
Imprisonment (Concurrent) 6 months/ Supervision by Community Corrections 9 months
Contravenes Protection order – No Firearm (x3)
Imprisonment (Concurrent) 1 month on each charge
Male Assaults Female (Manually)
Imprisonment (Concurrent) 3 months
Whangarei District Court
22 July 1999
Contravenes Protection Order – No Firearm
Non Residential Periodic Detention
5 months/Final WarningWhangarei District Court
16 November 1999
Cultivate Cannabis
Fine $550
Cultivate Cannabis
Fine $150
Whangarei District Court
8 March 2000
Criminal Harassment
Imprisonment (Concurrent) 3 months/
Supervision by Community Corrections 9 months
Threatening Language
Convicted and Discharged
Threatens to Kill/Do GBH (Verbally)
Imprisonment (Concurrent) 3 months/
Supervision by Community Corrections 9 months
Whangarei District Court
30 May 2000
Common Assault (Manually)
Non Residential Periodic Detention 5 months
Whangarei District Court
24 July 2000
Disorderly Behaviour – Likely Cause Violence
Non Residential Periodic Detention 6 months
Whangarei District Court
17 May 2001
Disorderly Behaviour S4 S/Offences Act
Convicted and Discharged.
Australia
The applicant’s recorded criminal history in Australia is set out in a Western Australia Police document produced under summons by Western Australia Police (Exhibit R2,
pp1-3).The applicant’s criminal record in Australia (in chronological order) is as follows:
Court
Date
Offence
(Date)
Sentence
Fremantle Magistrates Court
17 September 2009
Aggravated Assault Occasioning Bodily Harm (20 August 2009)
Community Based Order 12 months (Supervision)
Perth Magistrates Court
4 November 2009
No Authority to Drive (8 July 2009)
Fine $250 MDL Disqualified 3 months
Unlicensed Vehicle (Owner/Driver)
(8 July 2009)
Fine $50
Rockingham Magistrates Court
20 November 2009
Breach of Community Based Order (CBO dated 17 September 2009)
Community Based Order Varied and Continued
Perth Magistrates Court
29 January 2010
No Authority to Drive – Disqualified/
Suspended (15 November 2009)
Fine $400 MDL Disqualified 9 months (Cumulative)
Rockingham Magistrates Court
3 February 2010
No Authority to Drive – Never Held and Disqualified (20 November 2009)
Fine $600 MDL Disqualified 9 months (Cumulative)
Give False Personal Details to Police (20 November 2009)
Fine $350
Fremantle Magistrates Court
22 June 2010
Breach of Community Based Order Without Reasonable Excuse (13 January 2010)
Fine $200
Damaging Property (10 May 2010)
Imprisonment 2 months (Cumulative) (Suspended for 12 months)
Breach of Violence Restraining Order (10 May 2010)
Imprisonment 2 months (Concurrent) (Suspended for 12 months)
Breach of Community Based Order (CBO dated 20 November 2009)
(20 August 2009)
Imprisonment 6 months (Concurrent)
(Suspended for 12 months)Perth Magistrates Court
14 January 2011
Give False Personal Details to Police (23 November 2010)
Fine $300
Fremantle Magistrates Court
22 February 2011
Aggravated Stalking (18 December 2010)
Imprisonment 12 months (Cumulative)
Breach of Suspended Sentence Order of 22 June 2010
Imprisonment 6 months (Cumulative)
Breach of Suspended Sentence Order of 22 June 2010
Imprisonment 2 months (Cumulative)
Breach of Suspended Sentence Order of 22 June 2010
Imprisonment 2 months (Concurrent)
Breach of Violence Restraining Order
Imprisonment 4 months (Concurrent)
Threatening to Injure, Harm or Endanger Person
Imprisonment 4 months (Concurrent).
TRANSCRIPT OF PROCEEDINGS IN FREMANTLE MAGISTRATES COURT ON 17 SEPTEMBER 2009
A transcript of the proceedings in the Fremantle Magistrates Court in respect of the applicant’s conviction of Aggravated Assault Occasioning Bodily Harm on 17 September 2009 is in evidence (G12). Relevant extracts from that transcript are as follows:
“ …
HIS HONOUR: Mr Giles, it has been alleged that on 20 August this year at Hamilton Hill you unlawfully assaulted [CNF] and thereby did her bodily harm in circumstances of aggravation, namely that you were in a domestic relationship. Do you understand that charge?
GILES, MR: Yes.
HIS HONOUR: And you wish to plead ---
GILES, MR: Guilty.
…
THE PROSECUTOR: Sir, the accused is how you see him. The complainant is 170 centimetres tall, medium build. They have been in a domestic relationship for about 14 months. They live in different addresses. Now, the complainant is 16 weeks pregnant with the accused’s baby.
At 10.30 pm on Thursday, 20 August, the accused was at the front door of the complainant’s house in Hamilton Hill. The accused went into the house. He was drunk, and as soon as he started ranting about old photos, letters and cards from the complainant’s ex-boyfriend from five or seven years ago – the accused started choking the complainant with his forearm and holding her down on the bed. The accused used his body weight with his right forearm to lean on her neck and push her down. The complainant tried to scream out but he pushed his hand over her mouth, nose and stopped her yelling out. The accused pushed her head back and covered her mouth with enough force to split her lips and cause them to bleed.
The accused said to the complainant that if she kept trying to yell out he would smash her up. He grabbed her jaw with his hands and squeezed her jaw. He slapped her a couple of times to the face with an open hand. The accused repeatedly choked the complainant during the night. …
…
TAN, MR: … Your Honour, the statement of facts in the main – my client admits to it, except for one or two minor matters. According to my client, he started choking the complainant with his forearm and he did not hold her down on the bed.
The other matter is that the defendant did use his body weight together with his right arm to lean on her neck and pull her towards him because they were lying on the bed and, according to the complainant, he did choke – according to the accused, he did choke the complainant twice during the night, not repeatedly choking her.
That said, your Honour, the accused is a New Zealand national and he is 37 years old. He works in the construction industry. For many, many years he was in a de facto relationship and from this de facto relationship he has three daughters, 21 years old, 18 and 16 years old, and a son, seven years old. Presently he is taking care of his son and both live in a flat at Cloverdale.
After that long de facto relationship had ended he befriended the complainant, and that took place about 15 months ago. He instructs me that his relationship with the complainant is not bad and, like all relationships, there are ups and downs. The complainant is carrying his child. They live separately and occasionally he would spend a weekend at her flat. Sometimes they quarrel, and mostly over the same thing: her possession of old photographs and old love letters from her previous relationship. My client has repeatedly requested her to get rid of the photos and the letters but she did not do so. Not only did she not get rid of it, she lied to the defendant that she had done so.
My client realised she had lied when he saw the photos and love letters at her mother’s place. When he discovered that she had lied he was in a very confused state and that day for several hours at his flat he brooded and he had about eight to nine bottles of Stein Lager and half a glass of wine. Under the influence of alcohol, that night at about 10.30 he took a taxi to the complainant’s flat. There they quarrelled and at one point of time he grabbed her by the arm and choked her, basically in order to quieten her down as she was screaming loudly, cursing and swearing at him to stop because my client was repeating himself so many times over the disposal, or the non-disposal of the old photos and love letters, and when he choked her he realised it and he quickly released her. He instructs me that the choking was only for about two to three seconds. On the following morning he left the flat.
Your Honour, to show his remorse and shame he pleaded guilty at the first available opportunity. He has no previous convictions in this jurisdiction and he has been in Australia for the last five years. He has co-operated fully with the police by providing a record of interview and he admitted to the assault charge. However, he denies the other two charges.
In his record of interview, your Honour, he readily admitted that he is a violent person, especially under the influence of alcohol. Realising his violent nature, last Wednesday, your Honour, he admitted himself into a residential and therapeutic programme for men who have been violent within a family relationship. Perhaps your Honour could take a look at this letter to say that he had himself admitted to this residential treatment place, and the treatment will last for three months. The programme is called Communicare Breathing Space and is funded by the Department of Community Development. Apparently, there are 12 participants and they are supposed to stay in the premises for three months and they are supposed to abstain from alcohol, from drugs, and it is quite an intensive training programme.
Your Honour, it is my submission that the defendant’s act of participating voluntarily into this programme is a big step towards his rehabilitation. In fact, prior to this assault charge in August, some time around April or May, at the suggestion of the complainant the defendant attended counselling at Kingsway for a short period of time.
The defendant says that the assault was basically a spur of the moment reaction to the complainant’s lies, her denial and her loud screaming and it was definitely not pre-meditated. It just happened.
…
HIS HONOUR: Mr Donald Steven Giles has been charged that on 20 August 2009 at Hamilton Hill he assaulted, unlawfully assaulted, [CNF] and thereby did her bodily harm in circumstances of aggravation, namely being in a domestic relationship.
There were two other charges, and I will come to those; two other charges, and I will come to those shortly. However, he has pleaded guilty to that particular charge and I record a conviction today.
Now, the other two charges I need to now mention. Firstly, there is a related charge, if you like, unlawfully detained that same person and on the same day sexually penetrated that same person without her consent. Now, both of those other charges are matters that cannot be finally dealt with by this court and have to be finally dealt with by the District Court. …
…
I have heard the statement of material facts and they do indicate a serious course of conduct in relation to this particular charge. I am not dealing at all with the unlawful detention of [CF] and nor am I dealing with the other serious charge. In relation to this particular matter, my understanding is that he held her down on many occasions with his forearm on the bed, choking her, and choked her several times and she was in a situation where she could not breathe, she could not scream, she could not do anything. It was serious.
He says through his counsel that he was only choking her for about two or three seconds and he says that he did it as a result of there being – it seems that this is the submission, that she would not get rid of photographs of her previous partner or in between – when they were together and – between when the accused and her were together and when they separated and now he is going back occasionally. That made him angry.
He realised – as I understand it, he has realised since, so there is some slight discrepancy in relation to that but no doubt Mr Giles does not resile from the fact that the matter was serious.
I have heard the statement of material facts. I have also heard from Mr Tan on behalf of Mr Giles and I have been informed by Mr Tan, and I have got confirmation from Linda Smith, a letter from Linda Smith, saying that Mr Giles has enrolled and is, in fact, in a three-month behavioural change programme called Communicare Breathing Space. My understanding is that he is involved in that now and will be involved in that for at least three months residential and nine months after that. There is also – my understanding that there will be further counselling in relation to other anger management and alcohol abuse counselling.
Bearing in mind that the dispositions – every disposition is open to me in relation to this; gaol, a gaol term whether suspended or not, fines and/or – coupled with fines, fines alone or community-based orders. The only one that is not open to me at this stage, I have not got a pre-sentence report, is an intensive supervision order.
Bearing in mind the circumstances of this assault, and I am only dealing with the assault, I am not dealing with the other matters, I have come to the conclusion that I can adequately deal with this matter by way of a community-based order. It would be the most appropriate, in my view. I have heard from Mr Tan and it does appear there needs to be – his activities as far as assaults need to be curbed and it would be in the best interests of the public as well as the interests of justice that this matter be dealt with by way of a community-based order.
So, Mr Giles, stand up, please. I am going to – in relation to this – I have recorded a conviction in relation to this. You will be ordered to participate in a community-based order for a period of 12 months. There will be a supervision requirement, so the order runs for the whole 12 months. There is a programme, you will continue with the Breathing Space residential programme, and you are also required to undertake alcohol abuse counselling.
…”
THE SENTENCING REMARKS OF MAGISTRATE HOGAN IN FREMANTLE MAGISTRATES COURT ON 22 FEBRUARY 2011
In sentencing the applicant for the offences referred to in paragraph 3 above, Magistrate Hogan made the following remarks:
“ HER HONOUR: … Now Mr Giles, just stand up please. On 20 August 2009, you assaulted your partner, it was an assault occasioning bodily harm, and for that offence you were initially placed on a community based order. You during the course of that community based order undertook some treatment options in terms of men’s programs. There was a program that you voluntarily took yourself to.
But unfortunately despite attempting to go through the rehabilitation process you committed further offences and they were committed in May 2010. That led to on 22 June 2010 you being placed on three separate suspended imprisonment orders; one being in relation to that original assault occasioning bodily harm, one in relation to breaching a violence restraining order, and one in relation to damaging property, all relating to the same complainant or victim.
The current matters before me relate to breaching violence restraining order again in relation to the same person, making threats to unlawfully injure, endanger or harm [CF], and there is the aggravated stalking. There was some 234 phone messages left over a very short period of time. I have listened to the DVD where the police had [C] there and she played the phone messages and they were then recorded. I have also got a written copy that the police took of some of the more threatening and offensive messages and they are extremely frightening and offensive, there is no doubt about that.
I can hear – some of them I can’t hear because you’re (sic) voice is slurred and you sound as though you’re out of it. I’m told you had not had any alcohol for quite some time, that being a problem in the past, but you then got on to medication which you abused and apparently when this happened it was the medication that made you slur your words, et cetera. But there is just no way around it what was said in those messages is extremely offensive material.
You have of course by committing these offences that came before me most recently breached the suspended imprisonment order. The Sentencing Act basically says if you commit an offence whilst you’re on a suspended imprisonment order then you go to gaol, no questions about it. Sometimes the courts are able to decide that it would be unjust in all the circumstances to trigger the sentence, but here there is just no way I could possibly reach a conclusion that it would be unjust to trigger the sentences.
The first step I have taken is I have triggered the sentences I imposed upon you back in June, so in relation to the two charges – unlawful damage and breach of violence restraining order – I imposed sentences of two months concurrent with each other but cumulative upon the six-month sentence I imposed in relation to the aggravated assault occasioning bodily harm, so that is a total of eight months now triggered.
The other sentences that I am now to look at are in relation to the actual stalking, damage and breach violence restraining order offences. I have already made comments about the extremely offensive nature and threatening nature of those phone calls, it just came one after the other after the other. They have been preceded by you going around to the house where you were banging on the windows, I think you were beeping [C’s] car horn so you obviously knew she was there, yelling out, they – that is [C] and her mother and your 10-month-old baby at the time – stayed inside, rang the police, you went away but then you started with the phone calls immediately after that.
They in one way all run together but it’s in another way two separate things, actually going to the house in breach of the restraining order and then going away – I don’t know how far you went – but starting to make these calls one after the other and most of them extremely offensive, so really there is no option by (sic) imprisonment for these other offences.
Now in setting the terms of imprisonment, we have just heard of another stalking case where the person got a very long sentence. The actual maximum sentence for this offence is eight years but there is a jurisdictional limit in this jurisdiction which brings it down to a maximum I can impose is two years. However, when I look at what is the appropriate sentence I am entitled to take that maximum into account even though I can’t impose eight years’ imprisonment or indeed more than two years.
There are some factors that do mitigation (sic) the sentence. One of them of course is not that you don’t have a previous record. You have a terrible record for violence and socially unacceptable behaviour, totally unacceptable behaviour, in relation to women and other members of the community.
You have made attempts to try and change your ways and I am going to recognise that. I note from the psychologist’s report that you have accepted the seriousness of the content of the text messages and to her she assessed you as very ashamed of what you had done. I see that you completed the cognitive brief intervention program in Hakea, I’ve got that document here. I’ve got the Mission Australia letter so that’s I think a different program in relation to drug and alcohol use. There is also confirmation from the doctor or the medical officer in Hakea that you haven’t received any medication since your admission into prison. So they’re all relevant documents that I have taken into account.
The concerns of the report writers are in relation to the risk of you reoffending should you be released into the community at this point. Before you can be released into the community and indeed when you are eventually released on parole – and by the way I have made parole eligibility orders again because of the attempts at rehab that you have made and I can see from the psychological report that it’s certainly worth pursuing rehab with you. But you do need to carefully address your behavioural controls, your use or abuse of alcohol and/or other drugs and various other matters that are able to be addressed through programs available within the prison system and on your release on parole if the Parole (sic) Review Board does grant you that.
On the charges, in relation to the breach violence restraining order and threats to injure that were charged together in the one complaint, on each of those I sentenced you to four months’ imprisonment and I have made those two sentences concurrent to take into account the time that you have spent in custody so they won’t be adding on any further to your sentence.
In determining the sentence on the aggravated stalking, again I have taken into account the time that you have spent in custody and the other matters that go towards mitigation and I have decided that the appropriate penalty is 12 months’ imprisonment cumulative upon the eight months that I just triggered. So in all you’re now looking at 20 months’ imprisonment with parole eligibility. Thank you.” (G24, pp 152–154)
FURTHER DETAILS OF OFFENCES COMMITTED BY THE APPLICANT IN MAY AND DECEMBER 2010
Further details of offences committed by the applicant in May and December 2010, referred to in the abovementioned sentencing remarks of Magistrate Hogan, are set out in a Department of Corrective Services Immigration Report dated 25 March 2011 (G13) as follows:
“ THREATS/STALKING
Between 8:00 pm on 18 December 2010 and 8:00 am on Monday 20 December 2010, Giles sent numerous text messages and left numerous amounts of voicemail messages on the victim’s mobile phone. A Violence Restraining Order was in place prohibiting Giles from contacting the victim. There are over 234 messages in total of text and voice messages left on the victim’s mobile phone. A typical message recorded on the victim’s voicemail from Giles states: ‘I will get to you before the cops get me and that’s a promise the best you can do is run away to your friends, I know you haven’t got many. These people won’t find me for about a week, so you are f..king water yourself for a whole f..king week you c..t.’
BREACH OF VRO
On 18 December 2010, Giles breached that order by attending a property to which he had full knowledge that the victim would be there. Giles was yelling from the outside of the house attempting to communicate with the victim, and banging on the front windows, and beeping the victim’s horn of the car parked in the driveway. At the time of the offence the victim was at the premises with her mother and 10 month old baby. Giles departed from the premises and sent a text message to the victim’s phone, it stated ‘Kan u jst talk to me on tha fone plez.’ Numerous other text messages followed. Police were called to the premises as the victim her baby and mother were terrified. An investigation located Giles two days later at his home address. He was arrested.
BREACH OF VRO/DAMAGE PROPERTY
On 14 (sic) May 2010 at 3.30 pm Giles was at a home on Carrington Street, Hilton for a supervised visit of his 4 month old baby daughter. At 3.31 pm Giles was drunk and contacted the protected person by telephone saying, ‘I’m taking baby tonight. Just try and stop me.’ At 3.35 pm Giles again called the protected person. The protected person heard whispering and heard the sound of a baby crying. At 3.45 pm the protected person attended Carrington Street, Hilton to collect her 4 month old child. Giles intimidated the protected person by gesturing with a single finger in an offensive motion. Giles said, ‘F..k off and go, I am taking baby.’ Whilst holding the 4 month old baby Giles banged on the protected person’s car bonnet. Giles also banged hard on the windscreen of the vehicle causing the glass to smash. Estimated cost of repair is $500. The protected person feared for her safety so drove to nearby shops where she called Police. At 4.30 pm Police attended and arrested Giles.”
THE APPLICANT’S EVIDENCE
The applicant tendered in evidence his statement dated 7 February 2012 (Exhibit A1) and he affirmed that its contents are true and correct.
He referred first to his criminal history, acknowledging that his criminal history in New Zealand is “extensive” but stating that he does not believe that his criminal history in Australia is extensive. He sought to explain that belief as follows:
“3. Seven offences were breaches, while I was attending Breathing Space a residential program for domestic violence, I was asked to leave the three month program for not attending cooking an painting classes. I had a verbal agreement with the Manager of Breathing Space that I could miss those classes so I could pick my son … up from school on Friday an drop him off to school on Monday, I was asked to leave after seven weeks.
4.I explained to CJS that because I was at Breathing Space for seven weeks an I wasn’t working I had to get two jobs so I could cover my rent which was several weeks behind as well as other payments an living an food expensives for my children an that I was unable to report, for fear of losing my jobs which I just obtained an that I had no car to get there.
5.The breaches of the VRO had surrounding circumstances to them. My ex partner an I were still in a intimate relationship an she often persisted that I breach the VRO order several times to spend time with our daughter an herself, then when we argued she would ring the police. She wasn’t willing to take the VRO off because DCP was threating to apprehend our baby if she did.
6.Three offences were for driving.
7.The other offences happened on the 18th Dec 2010. The aggravated stalking was 234 phone calls an txt’s an voice mail. The threats to harm an injure were part of the 234 phone calls there was ten voice mails that were threating an the rest of the phone calls an txt’s were normal everyday conversation and txt’s about our daughter an were we would meet etc.” (sic)
He added that he took “full responsibility” for assaulting his ex-partner “in a domestic dispute” in August 2009 and for “breaking” the “window screen” of his ex-partner’s car in May 2010. As regards the former offence he stated:
“ … it was the only time it happened an (sic) I am deeply ashamed.”
The applicant also referred to his rehabilitation history, his two children under the age of 18 years, and his concerns about being returned to New Zealand. These aspects of his statement will be referred to later in these reasons.
In cross-examination the applicant gave evidence to the following effect:
·the total of 234 messages referred to in the stalking offence extended over “a couple of months” but only the last 10–12 messages were “threatening” and these extended over only a 2-day period;
·the threats included threats to “get rid of” his ex-partner by “dropping her in a hole somewhere”, and to take their baby;
·those threats were threats to kill his ex-partner, not merely to harm her;
·he was subject to a Violence Restraining Order at the time;
·when he damaged his ex-partner’s car and smashed the windscreen at the end of a supervised visit with his baby daughter in May 2010, he was drunk and was holding his baby daughter at the time;
·in addition to the offence of aggravated assault against his ex-partner in August 2009, he was also charged with two more serious offences against her but those charges were based on false allegations by his ex-partner and they were subsequently “dropped”;
·when he first arrived in Australia in March 2005, and when he subsequently returned to Australia after visits to New Zealand in March 2007 and March 2009, on each occasion he knowingly made a false declaration on his immigration incoming passenger card that he did not have any criminal convictions;
·he made that false declaration because he was afraid that if he told the Department about his criminal record in New Zealand he would be refused entry to Australia;
·he visited New Zealand in 2007 to attend his younger brother’s wedding;
·he visited New Zealand in 2009 with his (then) partner [CF] and they saw some of his relatives there;
·his father, two brothers and a sister live in New Zealand but he has not had any contact with his father for 10 years and he is “not that close” to his elder brother and sister and has had contact with them “very rarely”;
·he has two children living in New Zealand – a daughter who is about to turn 24 and a son who is 13 years old;
·his mother, three daughters (aged 21, 18 and 2) and a son (aged 10) live in Australia;
·as regards his 10-year-old son, he is now being brought up by his mother and a sister and he speaks to him on the telephone every 2–3 days;
·as regards his daughter who has just turned 2, he was subject to a Violence Restraining Order at the time she was born and he got the Order varied so that he could attend her birth and he was subsequently allowed to see her once per week in a supervised visit;
·he has not seen or spoken to his 2-year-old daughter since December 2010 when he was taken into custody, but he is allowed to communicate with her by mail and he does so;
·he used marijuana daily from the age of 12 years until December 2010 but since he has been in custody he has not used any medication or drugs;
·in New Zealand he used to get very drunk on alcohol at least 2–3 times per week, whereas in Australia he has only got drunk “when under pressure”, about once per fortnight;
·he joined the “Mongrel Mob” gang in New Zealand when he was 18 years old and living in Porirua, near Wellington;
·he was still a member of the Mongrel Mob when he left New Zealand in 2005, but he did not tell them he was leaving;
·he has not had anything to do with the Mongrel Mob since he left New Zealand;
·while he was a member of the Mongrel Mob he was threatened in 2004–2005 because he was thinking of leaving;
·he moved to Whangarei and he was “intimidated” but there was no violence;
·his younger brother (whose wedding he attended in New Zealand in 2007) and his brother’s friends are associated with the Mongrel Mob and when he saw them at the wedding there was some “confrontation”;
·the Mongrel Mob has “friends” in the Police Force, the Tax Department and the Social Welfare Department – “if they want to get you, they will”;
·he was refused parole in December 2011;
·in March 2011 he assaulted another prisoner because he was “provoked” and he punched the other prisoner in the face several times and cut his lip;
·he will not re-offend because of what he has learnt from the courses he has completed and because he has stopped taking drugs;
·if he was returned to New Zealand his 2-year-old daughter would stay in Australia with her mother, and his 10-year-old son would probably stay in Australia because there would be a better life for him here, although he would want his son to be with him and his son would want to be with him.
ADDITIONAL EVIDENCE RELIED ON BY THE APPLICANT
The applicant also sought to rely on the following material which is in evidence.
A letter signed by Tania Heka, dated 19 January 2012, states as follows:
“ …
I am writing to you in regards to Donald Steven Giles for whom I am writing this letter for as support for him to continue living in Australia.
I have known Donald for 24 years. I am his ex partner and we have 3 children together. I fear that if he is deported back to New Zealand my children will no longer have a father and there children will no longer have a grandfather due to his past gang relations in New Zealand with the Porirua Mongrel Mob who have on a numerous occasions have threatened his life and our family when we use to live in New Zealand, hence that is why we left that town to start a new life somewhere else but found New Zealand such a small country and the gangs in New Zealand are every where. We came to Australia for a better life to get away from the terra and life threatening violence the Mongrel Mob have caused me and my ex partner Donald and our children and myself.
I hope Donald is able to continue living in Australia so he is able to lead a safe life here and never have to worry about having to hide and run from the gang life he use to be in.
…” (sic) (part of Exhibit A2)
[The Tribunal notes that Ms Heka is not the applicant’s “ex-partner” who was the victim of the abovementioned offences committed by the applicant in August 2009 and May and December 2010.]
A letter signed by Jeannetta Brown, dated 13 December 2011, states as follows:
“ …
I am the mother of Donald Steven Giles whom is currently serving time in Albany.
I am writing in support of my son’s appeal against the decision of been sent back to New Zealand.
Before coming to Australia my son had no problems with the law for nine years.
His decision to come to Australia was to get away from a life of gang, and to give his children and himself a better life here. During his time here, my son has a daughter whom is Australian born, to be sent back to New Zealand, the contact between father and daughter will be taken away.
As Donalds mum I am asking that my son be given another chance to stay in Australia.
In my heart I know, my son has a better chance being in Australia than going back to New Zealand.” (sic) (part of Exhibit A2)
A letter (undated) signed by Jasmine Giles states as follows:
“ … I am writing in support ov my father Donald Giles.
My family and I support my father we are all here to help him and to make sure his saftey comes first my dad is a good man, I have seen him improve a lot.
He’s made big changes with in him self each and every day is a stepping stone in the right path and he has taken to the right path with all that he has with in him self!!
I am proud ov the man my father has become and is becoming.
How ever I do have fear for his life if he’s sent back to New Zealand.
My father moved us all here to get away from the gang life in New Zealand to better our lifes and his he may not have even been here today if he hadn’t made the move here! Today I plead that you let him stay my dad will be hunted down a killed if he goes back to New Zealand he is wanted by some real nasty men!! The gang life there has had a big impact on our lives and we just wont it 2 be behind us to live free here in Perth with out fear ov anything happening to him. My father safety is at risk if hes sent back, and he’ll be leaving behind 6 kids who love him and turn to him for support!
I as a person need my father here in perth with me he is my support person the one I count on when times are hard. He’s there for not only me but my brothers and sister’s.
My dad always seems to make me feel better after ive spoken to him, always focuses on the postive thing’s and keeps me going.
Hes my back bone, I need him here with us in our lifes.
I wouldn’t know what to do if he was to be taken from us!
Im so greatful that he had the gut’s to leave behind the gang life and try give us a better life her to better our lifes and his. My father will DIE if he is sent back. I hope yous understand this.
We all surrport him and are here for him!
…” (sic) (part of Exhibit A2)
A letter (undated) signed by Sheena Heka states as follows:
“ I … am writeing to you in regars to my father Donald Giles. He is a awesome father and the main source of income in our household here in Perth. Since he has been taken away from us we have struggled to live and take care of our day to day bills. My brother aged 9 has missed out on father time. Dad and my brother would go to the movies, adventure world, to the Skate Park, go shoot hoops or even resling on the tramp, now that dad has gone my brother is not the same. I have a ten and a half month baby. She was only five months old when dad was taken from us. She loves and misses him darely and if you’s deport our dad I do not think we will survive with out him. He holds our family together through the good times and the bad. We are just makeing it by because dad is close and we can go see him weekly or he rings. Please don’t send our father home to New Zealand. I’m afraid if you do you will be tearing our family apart.
…” (sic) (G21)
[The Tribunal notes that, according to the applicant’s evidence, Sheena Heka subsequently returned to New Zealand and presently lives there.]
A letter (undated) signed by Tania Giles states as follows:
“ … I am writing a letter to you in regards to my dad DONALD GILES. We live in Perth Western Australia and we need our dad on a daily bases for day to day support, he looks after us and provides for his family, myself, my two other sisters and our younger brother. Our father is our world when we need him he is without a delt always there for us. It would be very sad and upsetting if he got deported you’s have already taken him away from us and put him in prison we are barely making it without him here. Please! dont send him back to New Zealand we need our dad!” (sic) (G22)
A letter (undated) from the applicant’s 10-year-old son (written when he was 9 years old) states as follows:
“ … I like to play rugby and
wrestleiwrestling with my dad. I miss my dad, I love him heaps I don’t want him to leave us and go back to New Zealand I wish he would come home I miss him” (sic) (G23)The applicant also tendered in evidence (part of Exhibit A2) seven letters which he said were written and sent to him, on behalf of his daughter (who turned 2 in February 2012), by her mother. These letters, which appear to have been sent periodically from October 2011 to January 2012, are generally lengthy and refer mainly to the applicant’s daughter’s activities with her mother and contain expressions of love for the applicant.
The Tribunal notes that none of the authors of the letters referred to in paragraphs 21 – 27 above was required by the respondent for cross-examination and none of them was in attendance at the hearing.
COURSES UNDERTAKEN BY THE APPLICANT IN PRISON
The G Documents include numerous certificates confirming the applicant’s participation in various courses conducted at Hakea and Albany Prisons, namely:
·2-hour course on blood-borne viruses (23 December 2010);
·Brief Intervention Cognitive Skills Programme (10 February 2011);
·12-hour brief intervention “Living Healthy Lifestyle” group programme (25 February 2011);
·Good Beginnings Introductory Parenting Education Course (4 March 2011);
·Life Skills Program – Accommodation, Healthy Lifestyles, Employability and Money Management modules (7–8 March 2011);
·Certificate I in Construction (Work Safely in the Construction Industry) (17 March 2011);
·Prison Addiction Services Group Session – Distorted Thinking (24 March 2011);
·Prison Addiction Services Group Session – Miracle Question and Lifestyle Balance & Preferred View (30 May 2011);
·Prison Addiction Services Group Session – Distorted Thinking & Power v Equality (13 June 2011);
·Prison Addiction Services Group Sessions – EWS, SIDs, PIGs, HRSs & Relapse Prevention (Cravings & Urges); Problem Solving & Goal Setting; Stages of Change & Four L’s and Costs and Benefits (20 June 2011);
·Department for Communities – Parenting From The Inside course (July & August 2011);
·Department of Corrective Services – Pathways Program (100 hour Addictions Offending Program) (25 August 2011);
·Regional Counselling and Mentoring Services Inc – Recall from an Adult Perspective course (9 September 2011).
ANALYSIS
Application of the “character test”
By reason of the fact that the applicant “has been sentenced to a term of imprisonment of 12 months or more” – on 2 October 1992 and 28 September 1995 in New Zealand and on 22 February 2011 in Western Australia – the Tribunal finds that the applicant has a “substantial criminal record”, as defined in s 501(7) of the Act, and that, by reason of s 501(6)(a) of the Act, he does not pass the “character test”.
It follows from that finding that the discretionary power to cancel the visa, pursuant to s 501(2) of the Act, is enlivened in this case.
Should the discretionary power to cancel the visa be exercised in this case?
Part B of Direction [41] comprises paragraphs 8 – 11. Paragraph 9 states:
“(1) … decision-makers must take into account the primary considerations in every case. The other considerations (defined in paragraph 11) should be taken into account where relevant.
Note:The primary considerations are set out in paragraph 10 of this Direction. The other considerations are set out in paragraph 11.
(2)Decision-makers should only take into account directly relevant considerations.
…”
The Primary Considerations
Paragraph 10 of Direction [41] sets out the primary considerations as follows:
“ 10.The primary considerations
(1)In deciding whether to refuse to grant a person a visa or cancel a person’s visa, the following (the primary considerations) are to be considered:
(a) the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
(b) whether the person was a minor when they began living in Australia;
(c) the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and
(d) relevant international obligations, including but not limited to:
(i)the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
(ii)the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).”
The protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence
Paragraph 10.1 of Direction [41] states:
“ 10.1Protection of the Australian community
(1)Due consideration is to be given to the Government’s objectives set out in Part 1, paragraph 5 of this Direction.
(2)The factors relevant to assessing the level of risk of harm to the community of the person’s entry or continued stay include:
(a) the seriousness and nature of the relevant conduct; and
(b) the risk that the conduct may be repeated.”
The objectives set out in Part 1, para 5 of Direction [41] are as follows:
“ 5.1Objectives
(1)The objective of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens.
(2)In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.
(3)The Government is especially mindful to protect the safety of the community’s more vulnerable members, including minors, the elderly and the disabled.”
The seriousness and nature of the relevant conduct
Paragraph 10.1.1(1) of Direction [41] states:
“ 10.1.1 The seriousness and nature of the conduct
(1)Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community. Those crimes involving violence, particularly against vulnerable persons (such as minors, the elderly and the disabled), are especially abhorrent to the whole community.”
Paragraph 10.1.1(2) lists (in subparas (a) – (m)) “examples of offences and conduct that are considered serious”, including (relevantly):
“(d) grievous bodily harm, reckless injury, assault and aggravated assault (including abduction);
(e)robbery;”.
Paragraphs 10.1.1(3) and 10.1.1(4) relevantly state:
“(3) The sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community. Due regard must be given to the extent of the person’s criminal record, including
(i) the number and nature of offences;
(ii) the period between offences; and
(iii) the time elapsed since the most recent offence.
(4)The following factors are also to be considered:
(a)any relevant information, including, but not limited to, evidence from independent and authoritative sources in respect of the person such as judicial comments in an individual’s case, professional psychological reports, pre-sentence reports for the courts, parole assessments, victim impact statements and similar sources of authoritative information or assessment;
(b)any relevant factors the person provides as mitigating factors;
…”.
The applicant’s criminal record in New Zealand comprises 25 convictions in respect of offences committed in every year (except 1993, 1996 and 1998) in the period from 11 April 1991 to 25 March 2001. Those offences include several serious offences, notably, aggravated robbery (June 1992), assaulting a person with a blunt instrument (June 1995), assaulting a female (January 1999), and threatening to kill or do grievous bodily harm (January 2000), in respect of each of which a custodial sentence was imposed. The applicant’s criminal record in New Zealand is, in the Tribunal’s opinion, both extensive and serious.
The applicant’s criminal record in Australia comprises 18 convictions in respect of offences committed in 2009 and 2010 from 8 July 2009 to 18 December 2010. Although the majority of those convictions related to breaches of suspended sentence orders, community based orders and violence restraining orders, road traffic offences, and giving false personal details to police, there are also convictions in respect of more serious offences, notably, aggravated assault occasioning bodily harm (August 2009), and threatening to injure and aggravated stalking (December 2010), which were committed against the applicant’s (then) domestic partner. In the Tribunal’s opinion, the applicant’s criminal record in Australia, comprising 18 convictions spread over a relatively short period of less than 18 months, including some serious offences committed against his (then) partner culminating in the offence of aggravated stalking for which he received a sentence of 12 months’ imprisonment, is a matter of serious concern.
Having regard to the applicant’s entire criminal history, the Tribunal is satisfied that that history demonstrates a propensity on the part of the applicant to use or threaten violence against others, particularly in the context of a present or past domestic relationship, when under the influence of alcohol or drugs. As Magistrate Hogan remarked, when sentencing the applicant on 22 February 2011 for offences committed by him against his (then) partner on 18 December 2010:
“ You have a terrible record for violence and socially unacceptable behaviour, totally unacceptable behaviour, in relation to women and other members of the community.”
Having regard to the fact that the applicant’s criminal history includes a number of offences which have involved violence or the threat of violence (most recently on 18 December 2010, following which he was taken into custody on 20 December 2010 and has since remained in custody), his criminal conduct must, in the Tribunal’s opinion, be regarded as a matter of serious concern to the welfare and safety of the Australian community.
The risk that the conduct may be repeated
Paragraph 10.1.2 of Direction [41] states:
“ 10.1.2 The risk that the conduct may be repeated
(1)The person’s previous general conduct and total criminal history are to be considered highly relevant to assessing any risk of re-offending.
(2)The following factors are to be considered as particularly relevant to this assessment:
(a)a recent history of convictions, which should be considered as indicating an increased risk of re-offending;
(b)evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation. Greater weight should generally be given to evidence from independent and authoritative sources, such as judicial comments, professional psychological reports, pre-sentence reports for the courts, parole assessments, and similar sources of authoritative information or assessment; and
(c)evidence that the person has breached judicial orders, including parole, bail, bonds, suspended sentences and any other relevant undertakings or conditions imposed by the courts.”
The applicant’s recorded criminal history was set out in paragraphs 10 and 12 above. As previously stated, the applicant’s criminal record in New Zealand, from April 1991 to March 2001, is both extensive and serious, comprising 25 offences committed with relatively short periods between them throughout that period and including several serious offences involving violence against persons for which custodial sentences were imposed. After a gap of some eight years until July 2009 (during which the applicant had moved to Australia in March 2005) the applicant commenced to re-offend and, in the period from July 2009 to December 2010, he committed offences resulting in 18 convictions, including some serious offences against the person, namely, aggravated assault occasioning bodily harm (August 2009) and threatening to injure and aggravated stalking (December 2010). He has been in custody since 20 December 2010. His most recent offence was, however, committed while he was in custody when, on 10 March 2011, he assaulted another prisoner by punching him in the face numerous times (see G13, p 101).
As regards rehabilitation, the evidence before the Tribunal indicates that the applicant:
·in April or May 2009, at the suggestion of his (then) partner, “attended counselling at Kingsway for a short period of time” (G12, p 93);
·in September 2009, admitted himself into a 3-month intensive residential “behavioural change” program called “Communicare Breathing Space” (G12, pp 92–93, 97);
·subsequently continued with anger management and alcohol abuse counselling;
·has undertaken various courses in prison from December 2010 (see paragraph 29 above).
The Tribunal notes, furthermore, the following statement of Magistrate Hogan in her sentencing remarks of 22 February 2011:
“ … I have made parole eligibility orders again because of the attempts at rehab that you have made and I can see from the psychological report that it’s certainly worth pursuing rehab with you. …”
The applicant asserts that he has gained “new knowledge” and understanding from the courses he has completed and that he now has the “problem solving skills” to deal with “high risk situations” without resorting to violence and he has made changes in his life by choosing to remain alcohol-free and drug-free. There is, however, no independent, authoritative evidence before the Tribunal which supports those assertions and indicates that the applicant presently has good prospects of rehabilitation.
There is, on the other hand, evidence before the Tribunal that the applicant has, in recent times, committed numerous breaches of community based orders, violence restraining orders and suspended sentence orders. The applicant’s criminal history in Australia indicates that he has committed such breaches on eight occasions over the period from November 2009 to December 2010.
The Tribunal also notes that the applicant’s criminal history in Australia includes three offences of driving without a licence (once in July 2009 and twice in November 2009) and two offences of giving false personal details to police (in November 2009 and November 2010). In addition, on three occasions (March 2005, March 2007 and March 2009) the applicant knowingly made a false declaration, for immigration purposes, that he had no criminal convictions. In the Tribunal’s opinion, the applicant’s conduct in committing those offences and knowingly making those false declarations demonstrates a lack of respect for authority and for the law.
Although the applicant’s stated acceptance of responsibility, and expression of remorse, for, in particular, assaulting his former partner in August 2009, and his stated belief that there is “a very minimal risk” of his re-offending, appeared to the Tribunal to be sincere, the Tribunal, in the absence of independent, authoritative evidence in support of the proposition that there is a minimal or very low risk of his reoffending, is not prepared to accept that proposition.
Having regard to the matters referred to in paragraphs 41-46 above and to:
·the reference by Magistrate Hogan, in her sentencing remarks on 22 February 2011, to the “concerns of the report writers … in relation to the risk of the [the applicant’s] reoffending”; and
·the decision of the Prisoners Review Board in December 2011 to deny release on parole to the applicant;
the Tribunal is of the opinion that there is presently a real risk that the applicant may re-offend in a serious manner involving the use of violence against a member or members of the Australian community.
Conclusion regarding the protection of the Australian community
Having regard to the Government’s objectives referred to in para 5.1 of Direction [41], the applicant’s extensive criminal history including, in particular, several serious offences involving violence or the threat of violence, and the Tribunal’s assessment that there is presently a real risk that he may re-offend in a serious manner involving the use of violence against a person or persons, the Tribunal concludes that this “primary consideration” weighs heavily in favour of cancellation of the visa.
Whether the person was a minor when they began living in Australia
Paragraph 10.2 of Direction [41] states:
“10.2 Whether the person was a minor when they began living in Australia
(1)If the person was a minor when they began living in Australia and spent their formative years in Australia, thereby increasing the likelihood of establishment of greater ties and linkages to the Australian community, this is to be given favourable consideration.
(2)Less weight should be given if the person began living in Australia as a minor but was close to attaining adulthood at that time.
Note: For example, if the person was between 17 and 18 years old on arrival.”
By para 6(1) of Direction [41] the word “minor”, for the purposes of the Direction, “has the same meaning as in section 5(1) of the Act”, namely, “a person who is less than 18 years old”.
The applicant was 33 years old when he first arrived and began living in Australia on 11 March 2005. This “primary consideration, therefore, cannot weigh in the applicant’s favour.
The length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct
Paragraph 10.3(1) of Direction [41] states:
“ 10.3 The length of time that a person has been ordinarily resident
(1)Reflecting the fact that the longer a period of residence in Australia the greater the likelihood of significant ties to the Australian community, more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character.
Note:For example, a period of more than 10 years of residence in Australia prior to a person engaging in criminal activity or activity which bears negatively on the person’s character would be an important consideration.”
The applicant has been ordinarily resident in Australia from 11 March 2005 and the first offences, of which he was subsequently convicted, were committed by him on 8 July 2009, namely, the offences of driving without a licence and driving an unlicensed vehicle. He thereafter continued to engage in criminal activity in Australia on a frequent basis until December 2010 when he was taken into custody, and he presently remains in custody. However, he had previously, by his own admission, knowingly made a false declaration, for immigration purposes, when he re-entered Australia on 17 March 2007.
Given that the applicant had been ordinarily resident in Australia for four years and four months before he commenced to engage in criminal activity (for which he was subsequently charged and convicted), and for only two years before knowingly making a false declaration for immigration purposes on re-entering Australia (having knowingly made a similar false declaration upon his initial entry into Australia in March 2005), the Tribunal does not regard this “primary consideration” as assisting the applicant’s case. Indeed, it would be open to the Tribunal, in these circumstances, to regard this “primary consideration” as weighing against the applicant and in favour of the cancellation of the visa: Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 390 at 396-397.
Relevant international obligations
Paragraph 10(1)(d) of Direction [41] refers to:
“ relevant international obligations, including but not limited to:
(i)the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
(ii)the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).”
The only relevant international obligation in this case is the obligation to have regard to “the best interests of the child”.
Direction [41] relevantly states:
“10.4 International obligations
(1)Reflecting Australia’s obligations under the CROC, if there is a child in Australia who is potentially affected by a visa refusal or cancellation decision, decision-makers must have regard to the best interests of the child.
…
10.4.1The best interests of the child
(1)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse to grant or cancel a visa is expected to be made.
(2)The best interests of any child who is 18 years or older is not a primary consideration but may be considered with other considerations under paragraph 11 of this Direction.
(3)If there are two or more relevant children, it is not to be assumed that the best interests of each child will coincide. It may be that the best interests of one child may indicate that the person should not be refused a visa or have their visa cancelled and be removed from Australia, whereas the best interests of another child may not be adversely affected by visa refusal or cancellation and removal. The best interests of each child should therefore be given individual consideration.
(4)Under Australian law, it is generally presumed that a child’s best interests will be served if the child remains with its parents. Factors which may indicate that the child’s best interests are served by separation from the person include, but are not limited to:
(a)any evidence that the person has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; or
(b)any evidence that the child has suffered or experienced any physical or emotional trauma arising from the person’s conduct.”
It is common ground that the applicant has two children under 18 years of age who live in Australia, namely, a son aged 10 years and a daughter aged 2 years. Accordingly, pursuant to paras 10(1)(d)(i), 10.4(1) and 10.4.1(1) of Direction [41], the best interests of each of those two children is a “primary consideration” in this case.
There is no evidence before the Tribunal, and the respondent does not contend, that either of the factors referred to in subparas (a) and (b) of para 10.4.1(4) of Direction [41] is applicable in this case.
Paragraph 10.4.1(5) of Direction [41] lists the factors which “are to be considered” in considering the best interests of the child. As regards those factors which are applicable in the circumstances of this case, the Tribunal comments as follows.
The nature and duration of the relationship between the child and the person
According to the applicant’s evidence, he had been “a single father to [his] son … for the last few years”, but that, since his incarceration in December 2010, his son has been living with, and brought up by, his son’s mother (Tania Heka) and a sister. The applicant described Ms Heka as “an awesome mum”. In his application for review, he stated that he and his son are “very close” and have formed a “very tight father and son bond” (G1, p13). A letter written by the applicant’s son is in evidence (see paragraph 26 above). The Tribunal accepts that there continues to be a close and loving relationship between the applicant and his son.
The applicant’s 2-year-old daughter lives with, and is cared for by, her mother (the victim of the applicant’s offences of aggravated assault in August 2009 and aggravated stalking and threats to injure in December 2010). He described his relationship with his daughter in his statement (Exhibit A1) as follows:
“ I have always had contact with my daughter … prior to my incarceration, I was there talking an singing to her while she was in her mum tummy. I was at the birth of my baby an I was there to look after her when she came home from hospital an even though there was a VRO in place my ex partner persisted I be involved in our daughter’s life, I was having supervised visits once a week as well as daily visits at [her] mums place an her grans place at my work place an my own place an we would go away for weekends.
I now have a family court order which states that we are allowed to have contact with each other via photo’s cards presents pictures paintings which has been happening since Oct 2011.” (sic)
Various letters purportedly written on behalf of the applicant’s daughter to the applicant are in evidence (see paragraph 27 above). The applicant said, in his oral evidence, that he has not seen, or spoken with, his daughter since he was taken into custody in December 2010.
The extent to which the person is likely to play a full parental role up to the child’s eighteenth birthday
The Tribunal accepts that, if the applicant remains in Australia, he is likely to play a substantial parental role in relation to his 10-years-old son up to his eighteenth birthday. As regard the applicant’s 2-year-old daughter, the extent to which he is likely to play a parental role up to her eighteenth birthday is uncertain. The Tribunal accepts that the applicant wishes to play as substantial a parental role as possible. However, the extent to which he will in fact be able to do so, if he remains in Australia, is doubtful because of such matters as:
·the continued existence of a Violence Restraining Order against the applicant in respect of the child’s mother;
·the possible future intervention of the Department for Child Protection if that Violent Restraining Order is revoked or otherwise ceases to operate (see para 5 of the applicant’s statement set out in paragraph 17 above);
·the absence of any Family Court order regarding the applicant’s physical access to the child other than the order whereby he was allowed weekly supervised visits prior to his incarceration in December 2010.
Other persons who already fulfil a parental role in relation to the child
The mother of each child already fulfils a parental role in relation to that child.
Any known wishes expressed by the child
The applicant’s son, in his abovementioned letter (see paragraph 26 above), stated that he “[did not] want [the applicant] to leave … and go back to New Zealand”, and that he wished that the applicant “would come home”.
The Tribunal is unaware of any relevant wishes expressed directly by the applicant’s daughter.
The likely effect that any separation from the person would have on the child
In his application for review, the applicant stated that his son had been “experiencing substantial emotional hardship” since his incarceration. The Tribunal notes, however, that Tania Heka, the child’s mother and carer, did not refer, in her letter of 19 January 2012 (see paragraph 21 above), to the effect that the applicant’s removal from Australia would have on their son in particular ─ rather, she stated generally:
“… my children will no longer have a father…”.
The Tribunal accepts, however, that, if the applicant is returned to New Zealand unaccompanied by his son, his son would miss him greatly and be likely to experience substantial emotional distress by reason of their separation.
As regards the applicant’s daughter, the applicant has not seen, or spoken with, her since December 2010 when she was 10 months old. Since October 2011 the applicant has communicated with her by mail and he has received several letters apparently written on her behalf by her mother. In those circumstances, the Tribunal is not satisfied that the applicant’s removal from Australia would have any immediate effect on his daughter’s emotional wellbeing. The Tribunal notes, in this connection, that there is no evidence before it regarding the views of the child’s mother in relation to any effect that the applicant’s removal from Australia would be likely to have on the child.
Conclusion regarding relevant international obligation
Having regard to the matters discussed in paragraphs 60─67 above, the Tribunal is satisfied that it would be in the best interests of each of the applicant’s abovementioned children under the age of 18 years if the visa was not cancelled and he remained in Australia. In the Tribunal’s opinion, it is appropriate to attach significant weight to this “primary consideration” in this case primarily by reason of:
·the close bond which the applicant has formed with his son and the substantial parental role which the applicant played in relation to his son prior to his incarceration and the likelihood of his continuing to play such a role up to his son’s eighteenth birthday if he remains in Australia; and
·the substantial emotional distress which his son is likely to experience if separated from the applicant by reason of the applicant’s removal from Australia.
The Tribunal concludes, therefore, that that “primary consideration” weighs against cancellation of the visa to a significant degree.
Other Considerations
Paragraph 11 of Direction [41] states:
“11. Other considerations
Note: These are not primary considerations.
(1)In reaching a decision on whether to refuse or cancel a visa, other considerations, although not primary, may be relevant and, if so, must be considered.
(2)It is appropriate that these considerations, where relevant, must be taken into account but, generally, they should be given less weight than that given to primary considerations.
…”
Paragraph 11(3) sets out an inclusive list of “other considerations”. The Tribunal comments on those “other considerations”, which are relevant in this case, as follows.
The extent of disruption to the person’s family ties to the Australian community
The applicant’s mother and four of his six children live in Perth, Western Australia ─ as does Tania Heka, the mother of three of his children, whom he has known for 24 years.
The Tribunal accepts that the applicant has close family ties in Australia, although it notes that he is not a member of a family unit (comprising himself, a partner and child(ren)). Those family ties will, of course, be adversely affected if he is removed from Australia but they, nevertheless, will be able to be preserved by electronic and telephonic means of communication.
Links to the country to which the person would be removed
Having regard to the applicant’s evidence, the Tribunal is satisfied that he continues to have some close family ties in New Zealand ─ notably, his daughter, Sheena (who herself has a baby daughter aged approximately 18 months), his 13-year-old son, and his younger brother. He also retains substantial cultural links to New Zealand, having been born, raised and educated there, and having lived and worked there until 2005 (when he was 33 years of age).
Hardship likely to be experienced by the person or their immediate family members lawfully resident in Australia
The Tribunal accepts that the applicant, if he were removed from Australia, would be likely to experience substantial emotional distress and hardship by reason of his physical separation from (especially) his two minor children and, to a lesser extent, his two adult children and his mother who live in Australia. The Tribunal notes, on the other hand, that the applicant would have the benefit of physical contact with his daughter Sheena, his baby granddaughter, and his 13-year-old son in New Zealand.
The applicant submitted that he would also suffer financial and physical hardship because he would not have employment or accommodation in New Zealand. He also submitted that his life would be in danger from the Mongrel Mob in New Zealand and that he would have no police protection and would always be “on the run” from them and, because he would have “no place to hide”, they would find him.
The Tribunal is not prepared to accept the applicant’s assertions regarding danger to his life from the Mongrel Mob in New Zealand. The Tribunal is, on the other hand, prepared to accept that the applicant be likely to be financially and physically disadvantaged by being returned to New Zealand in that his employment and future prospects generally would probably be less favourable in New Zealand than they would be in Australia.
The Tribunal notes, however, that such hardship as the applicant would suffer by being returned to New Zealand would be the ultimate product of his own failure to heed a formal warning by the Department in June 2010 (see paragraph 79 below) and his subsequent commission of serious offences (resulting in a total sentence of 20 months’ imprisonment) in December 2010.
As regards the applicant’s immediate family members in Australia (other than his two minor children), namely, his mother and his two daughters, Jasmine and Tania, the Tribunal notes the contents of their letters which are in evidence (see paragraphs 22, 23 and 25 above) and accepts that they would suffer emotional hardship and perhaps also some financial hardship if the applicant was removed from Australia. The Tribunal also notes the contents of the letter from Tania Heka (who, although not a member of the applicant’s immediate family, is a friend of 24 years’ standing, an ex-partner, and the mother of three of his children) which is in evidence (see paragraph 21 above) and accepts that she too would suffer some emotional hardship if the applicant was removed from Australia (although, in her case, the Tribunal expects that such hardship would be somewhat mitigated by the knowledge that the applicant would be able to have physical contact with their daughter, Sheena, and their baby granddaughter in New Zealand).
Whether the person has been formally advised in the past by an officer of the Department about conduct that brought the person within the character (visa refusal and cancellation) provisions of the Act
By letter dated 9 June 2010 an officer of the Department wrote to the applicant as follows:
“ On 21 October 2009 the Department of Immigration and Citizenship notified you that the visa which authorises your continued stay in Australia may be liable for cancellation under section 501 of the Migration Act 1958 on character grounds.
After taking into account all relevant considerations, a delegate of the Minister has made a decision not to cancel your visa on character grounds at this time. Your current Class TY, Subclass 444 Special Category (Temporary) visa will continue to provide you with permission to remain in Australia. However the delegate decided that you are to be given the following formal warning:
Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered.
…” (original emphasis) (G20, p140)
A written acknowledgment, signed by the applicant and dated 25 June 2010, states as follows:
“ I, Donald Steven GILES acknowledge that I have received the Notice of decision not to cancel visa under subsection 501(2) of the Migration Act 1958. I understand that I can again be considered for refusal or cancellation of any visa granted to me if further information of relevance comes to the attention of the Department at any time in the future and that if this happens, my past conduct and previous relevant information can also be reconsidered.” (original emphasis) (G20, p142)
OVERALL ASSESSMENT OF THE PRIMARY CONSIDERATIONS AND THE OTHER RELEVANT CONSIDERATIONS
Having considered the primary considerations and the other relevant considerations in this case, the ultimate task of the Tribunal is to determine, on the basis of the appropriate weight to be given to each of those considerations having regard to Direction [41], whether or not those considerations, on balance, favour cancellation, or non-cancellation, of the visa.
As regards the primary considerations, in the Tribunal’s opinion the protection of the Australian community weighs heavily in favour of cancellation of the visa, whereas the relevant international obligation, namely, the obligation to have regard to the best interests of the child, weighs against cancellation of the visa to a significant degree. Neither of the other two primary considerations assists the applicant’s case and the Tribunal prefers to regard each of them as a neutral consideration in this case.
As regards the other considerations referred to in paragraphs 71-79 above, in the Tribunal’s opinion most of those considerations weigh against cancellation of the visa, in particular, those considerations discussed in paragraphs 72 and 74-78, but one of those considerations, namely the Department’s previous warning to the applicant and the applicant’s subsequent commission of further serious offences (see paragraph 79 above), in the Tribunal’s opinion, weighs against the applicant and in favour of cancellation of the visa to a significant degree.
In the Tribunal’s opinion, the consideration which should be given the greatest weight in the circumstances of this case is the protection of the Australian community. The Tribunal has formed this opinion having regard, in particular, to:
·the Government’s objective in seeking to protect the Australian community from unacceptable risks of harm as a result of criminal activity by non-citizens (see para 5.1(2) of Direction [41]);
·the applicant’s extensive and serious criminal record which includes numerous offences involving the use, or the threat, of violence against persons and which Magistrate Hogan described as “a terrible record for violence and socially unacceptable behaviour, totally unacceptable behaviour, in relation to women and other members of the community”;
·its opinion that there is a real risk that the applicant may re-offend in a serious manner involving the use of violence against a member or members of the Australian community; and
·its opinion that that risk of the applicant’s re-offending and thereby causing serious harm to the Australian community is a risk which the Australian community, having regard to all the circumstances of the applicant’s case, including his repeated breaches of community based orders, violence restraining orders and suspended sentence orders, would regard as unacceptable,
In the Tribunal’s assessment, in the circumstances of this case, the protection of the Australian community, and the consideration referred to in paragraph 79 above, which weigh in favour of cancellation of the visa, outweigh the collective weight of the primary consideration regarding the best interests of the child, and the other considerations referred to in paragraphs 72 and 74-78 above, which weigh against cancellation of the visa.
CONCLUSION
The Tribunal concludes, therefore, that, having regard to the totality of the primary considerations and the other relevant considerations in this case, those considerations, on balance, favour cancellation of the visa. Furthermore, in the Tribunal’s opinion, the cancellation of the visa in this case would accord with the standards, values and expectations of the Australian community. Accordingly, the preferable decision in this case is that the visa be cancelled pursuant to s 501(2) of the Act.
DECISION
For the above reasons, the decision under review is affirmed.
I certify that the preceding 86 (eighty -six) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop.
.................[sgd D Brodie].................
Administrative Assistant
Dated 22 February 2012
Date of hearing
13 February 2012
Representative of the Applicant Self-Represented
Representative of the Respondent Mr D McLaren
Solicitors for the Respondent Sparke Helmore
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