Fina and Minister for Immigration and Citizenship
[2011] AATA 946
•15 December 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 946
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/4170
GENERAL ADMINISTRATIVE DIVISION ) Re SETTIMIO FINA Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Deputy President S D Hotop Date15 December 2011
PlacePerth
Decision The decision under review is set aside and the matter is remitted to the respondent for reconsideration in accordance with the direction that the applicant’s application for a Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visa is not to be refused under section 501(1) of the Migration Act 1958 (Cth).
..........[sgd]........
S D Hotop
Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – visa – refusal to grant visa – applicant a citizen of Italy – applicant first arrived in Australia in July 2006 aged 34 years – applicant convicted of offences in Germany and in Australia – applicant does not pass character test – discretion to refuse to grant visa to applicant – primary considerations including protection of Australian community and best interests of child – other relevant considerations – primary considerations and other relevant considerations on balance weigh against refusal to grant visa to applicant – discretion to refuse to grant visa to applicant should not be exercised – decision under review set aside
Migration Act 1958 (Cth), s 501(1)
Direction [no 41] – Visa refusal and cancellation under s 501
REASONS FOR DECISION
11 January 2012 Deputy President S D Hotop Introduction
1. On 29 September 2011 Settimio Fina (“the applicant”) applied to the Tribunal for review of a decision of a delegate of the Minister for Immigration and Citizenship (“the respondent”), dated 13 September 2011, refusing his application for a Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visa (“the visa”). The delegate’s decision was made under s 501(1) of the Migration Act 1958 (Cth) (“the Act”).
2. On 15 December 2011 the Tribunal made a decision under s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) whereby the abovementioned decision of a delegate of the respondent, dated 13 September 2011, was set aside and the matter was remitted to the respondent for reconsideration in accordance with the direction that the applicant’s application for the visa is not to be refused under s 501(1) of the Act. In accordance with s 43(2) of the AAT Act, the Tribunal gave reasons orally for that decision. By letter dated 3 January 2012 the respondent, pursuant to s 43(2A) of the AAT Act, requested the Tribunal to provide a statement in writing of the reasons for its decision. The Tribunal’s statement of reasons for its decision of 15 December 2011 follows.
The Factual Background
3. The applicant was born in March 1972 in Italy and is an Italian citizen. He moved to Germany in 1986 and he resided there full-time from 1989.
4. The applicant first arrived in Australia on 17 June 2006 and he lodged an application for the visa with the Department of Immigration and Citizenship (“Department”) on 13 October 2006. His visa application was sponsored by Verona Marie Wauchope (“Ms Wauchope”), an Australian citizen.
5. On 3 April 2008 a delegate of the respondent decided to refuse the applicant’s application for the visa on the ground that she was not satisfied that the applicant and Ms Wauchope were in a spouse relationship at the relevant times, and, on 24 April 2008, the applicant applied to the Migration Review Tribunal (“MRT”) for review of the delegate’s decision.
6. On 29 July 2009 the MRT found that the applicant and Ms Wauchope were in a spouse relationship at the relevant times and remitted the applicant’s application for the visa to the Department for reconsideration on that basis.
7. On 13 September 2011 a delegate of the respondent decided to refuse to grant the visa to the applicant pursuant to s 501(1) of the Act.
The Relevant Legislation
8. Section 501(1) of the Act provides:
“ The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.”
The “character test” is defined in s 501(6) of the Act which specifies various alternative circumstances in which a person does not pass the “character test” within the meaning of that section. In the present case, the relevant circumstance is that specified in para (a) of s 501(6), namely, “the person has a substantial criminal record (as defined by subsection (7))”. Section 501(7) specifies five alternative circumstances in which, for the purposes of the “character test”, a person has a “substantial criminal record”. In the present case, the relevant circumstances are those specified in paras (c) and (d) of s 501(7), namely, “the person has been sentenced to a term of imprisonment of 12 months or more”, and “the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more”, respectively.
The Ministerial Direction
9. 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
10. The evidence before the Tribunal comprised:
· the “G Documents” (G1–G22, pp 1–185 and supplementary G Documents (G23–G28, pp 1–43) lodged by the respondent (Exhibit R1 and Exhibit R2, respectively);
· Exhibits A1–A19 tendered by the applicant;
· Exhibits R3–R13 tendered by the respondent;
· the oral evidence of the applicant and of the following witnesses:
-Kathryn White, Solveig Messal, Katrin Deuscher, Maxi Deuscher, Ingrid Cortez and Mercurio Cicchini (who were called by the applicant); and
-Verona Marie Wauchope, Tony Buttery and Renata Lines (who were called by the respondent).
The Applicant’s Criminal History
11. The applicant’s recorded criminal history in Germany is as follows (G8):
Court
Conviction Date
Offence
Offence Date
Result
District Court of Rostock 11 October 2001 Possession of narcotics in 18 cases, 10 of them in coincidence with trafficking in narcotics
March–July 1997 1 year imprisonment (suspended for 2 years) District Court of Bad Doberan 9 September 2004 Threatening in two cases, one of them in coincidence with wilful and intentional bodily harm, and wilful and intentional driving without a licence and failure to render assistance
11 October 2003 6 months imprisonment (suspended for 2 years) District Court of Leipzig 7 June 2006 Drink driving 22 January 2006 6 months imprisonment (suspended for 3 years). [The Tribunal notes, however, that it appears that the applicant also committed a road traffic offence in respect of which he was sentenced in the District Court of Rostock to a fine of “20 daily allowances of 50 Deutsche Marks each” on 28 September 2000 (see Exhibit R2, p 40 – paragraph 80 below).]
12. The applicant’s recorded criminal history in Australia is as follows (G9, G10):
Court
Conviction Date
Offence
Offence Date
Result
Perth District Court of Western Australia 14 February 2008 Aggravated Burglary and Commit Offence in Dwelling Intensive Supervision Order: 12 months Community Work: 75 hours
Breach of Violence Restraining Order
Fine: $750 Common Assault
Fine: $750 Armadale Magistrates Court 31 October 2008 Fail to give way to vehicle that is within the roundabout
24 May 2008 Fine: $150
Demerit Points: 3No Driver’s Licence
(never held)MDL disqualified:
3 months – concurrent
Fine: $200Perth District Court of Western Australia 24 July 2009 Breach of Intensive Supervision Order dated 14 February 2008
Fine: $2,000 Fremantle Magistrates Court 22 March 2011 Breach of Violence Restraining Order 28 March 2010 Intensive Supervision Order: 12 months (concurrent from 22 March 2011). The Applicant’s Evidence
13. The applicant tendered in evidence his witness statement (Exhibit A2) and he affirmed that its contents (subject to certain minor amendments) are true and correct.
14. In his witness statement the applicant referred to the circumstances which resulted in his criminal convictions in Germany as follows:
“ …
Drug possession/trafficking offences:
24.In 2001 I received the notification by mail of a court date. I was charged for selling and using cocaine. The police had statements, and they had records of all my telephone calls to my friends to whom I had sold 1 or 2 gms of cocaine to (sic) at a time. They had records that proved 18 times I had cocaine and 10 times I was dealing. Two people where (sic) witnesses against me, attesting to the fact that they had bought cocaine from me. I talked to my lawyer and he advised me to plead guilty and I did.
25.On 11 October 2001 I was convicted with (sic) the narcotics offences and was given a two year good behaviour bond and 150 hours community work. I failed to complete the hours of my community work resulting in a breach which led to the jail term of one year. However, I was only incarcerated (in January 2002) for six months and then released for good behaviour. I had undertaken rehabilitation and counselling for my drug habit in jail and when I was released in June 2002 I was totally clean and have remained so.
…
Driving incident:
35.In October 2003 I was involved in a car accident, which resulted in a criminal charge. On the evening of 10 October 2003 after finishing work as a waiter in a restaurant, I had gone to the pub with my friends and colleagues. I met up with a girl, who I had known for about three weeks, and during the evening she got upset with me and became jealous as I was talking with another woman. Later that night at about 2.30 am she asked me to go for a drive because she wanted to talk with me. We left together in her car, which she was driving. I was seated on the right hand side in the front of the vehicle. We were travelling in the direction of her home in Bad Doberon (sic), and I could see that she was upset and she began to drive faster and faster, I said ‘Please slow down I am scared’. I kept asking her to please stop, I want to get out. I was very scared, she was driving fast and dangerously. Because I was scared and wanted to stop the vehicle and get out, I started to put the handbrake on very slowly, the car twisted and the rear right side crashed against a tree. We both got out of the vehicle together. It was about 4 am in the morning.
36.The car was damaged on the rear right wheel but neither of us was injured and I told her she should have slowed down. I was really upset and probably in shock and I walked away from the scene. Later I received a letter that I was to attend court at which time I was charged for the accident, as the driver. I was unable to successfully defend myself against the charge as I had left the scene. I was sentenced to six months prison but it was reduced to a two year good behaviour bond. I did not serve any time in prison.
…
Drink driving:
38.In January 2006 I was living in Leipzig and working as a waiter and some very good regular customers came in for dinner. At 10:30 pm myself, the chef and the owner sat down and shared some drinks with them. At midnight I left as I had to get up early and start work back at the restaurant at 8 am for the breakfast shift. I made a serious mistake by choosing to drive 10 km home. I was stopped by police and I was over the limit, I was arrested and I was sentenced to six months in prison but it was commuted to a three year good behaviour bond. There was no prison sentence served.”
In his oral evidence the applicant confirmed that he was also involved in a motor vehicle accident in Germany in 2000 and he was subsequently convicted for leaving the scene of that accident.
15. The applicant referred in detail to his relationship with Ms Wauchope which began in Germany in or about April 2006 and continued after their arrival in Australia together in July 2006. He referred to the circumstances involving his relationship with Ms Wauchope which resulted in certain criminal convictions in Australia.
16. As regards the circumstances resulting in his convictions on 14 February 2008, the applicant stated:
“ First Violence Restraining Order:
61.On 25 June 2007 Verona went to Armadale Court to obtain a Violence Restraining Order. We had argued and she threatened to cancel my sponsorship and I countered that I would not pay the car loan, which was in her name. I never threatened to hurt her; I used the expression ‘kaput’ in context of withdrawing my financial support for the car loan, which I always paid. I think this was the first time Verona put a restraining order in place, and she cancelled it after a couple of weeks. I did not really understand what a restraining order was. I knew that I couldn’t go near her, but Verona continued to contact me, by phone and text, all the time. There was no break in our contact.
Aggravated burglary/assault charge:
62.In mid July 2007 I was arrested and charged for the aggravated burglary which occurred at Verona’s home in Canning Vale. Although I was living in rented accommodation in Bentley, Verona and I were still together and seeing each other very regularly - every two or three days and constantly in touch by text, email and telephone. Around 8 pm one night I called Verona who said ‘Oh Mino can I call you back in 30 minutes? I have my Aunty with me and I am having a glass of wine’. I said okay and I waited until 8.30. When she didn't call I suspected that something was wrong and I drove to our house in Canning Vale, where Verona was living. I parked the car 100 metres away from the house because there was another car parked in the front of the garage. As I was walking toward the entrance of the home into the kitchen I noticed that all the blinds and curtains were closed which surprised me because normally Verona or myself did not close them. I looked through a gap in the window and I could see a man lying on the couch, Verona was sitting very close to him, there were two glasses of wine, a bottle of wine and chips on the table.
63.I knocked on the window and saw the man run into the lounge room. Verona opened the curtain and looked at me, I said open the door and she said no I won’t open it. I felt upset because Verona had lied to me and I wanted to talk to Verona.
64.I went to the backyard and grabbed the security screen and pulled it until I broke the window into one of the bedrooms. I climbed inside through the window and went into the kitchen where I met Verona. I said ‘Where’s this man? I want to talk to this man’. I was upset and I was saying ‘Why would you do this to me, why would you lie to me?’
65.I walked in the direction of the lounge room and Verona grabbed my shirt to hold me back. I pushed her hands away from me, because she was grabbing me and pulling me, I said ‘Don’t touch me you bitch’. Verona continued to hold onto me and grab at me throughout the entire incident.
66.In the lounge room I said to the man ‘What do you want here what do you want from my wife?’ I realised he was really scared and later I felt sorry for him, because it wasn’t his fault. I did not hit the man at all; I did not touch him. He ran from me to the kitchen and he hit his head against the door (between the kitchen and lounge room). I followed him into the kitchen and he went into the toilet and he closed the door. I opened the garage door went back and opened the toilet door and told him to leave; he exited through the open garage. I did not hit Verona across the head or push her to the ground. I was pushing her hands away as Verona was grabbing at me throughout the whole incident, and when she pulled and ripped my jacket off she fell to the ground.
67.I was standing in the garage with Verona, and I said to Verona ‘Why did you do that to me? Why do you lie to me?’ While we were talking the police arrived and they parked outside the garage. I walked over to the police. I did not understand English well enough at this stage to know what was being said. Verona spoke to them and then the police talked to me and I asked Verona ‘What did they say?’ in German, then the police said something else to me and Verona said ‘Sit down on the ground’. Then Verona spoke with the police for about a minute.
68.After this I got up and got in the police car, with two officers. Verona went inside the house with the police and about 40 minutes later the police came outside and asked questions. I kept saying ‘I didn’t understand them. I didn’t understand English’. I asked for Verona and they said ‘No’.
69.The police took me to the police station where I was very scared, I didn’t know what was happening and I still hadn’t been offered an interpreter. They took my finger prints and they put me in the cell overnight. In the morning at about 9 am the police took me to Armadale Court where I was still not offered an interpreter. I appeared in court; I was represented by a duty lawyer who tried to talk with me and I kept saying I don’t understand English.
70.The judge spoke to me asked me a question; again I said ‘I don’t understand English’.
71.They took me away to HAKEA jail. I was extremely upset and scared; I had no idea what was going on. I asked to contact the Italian Consulate; I had very few friends in Australia at this time. The Italian Consulate explained that I needed somebody to sign the bail and that they would come and support me on the Monday.
72.I stayed in jail for three days. On the following Monday my good friend Vince Virzi came and signed for the bail. We left the jail and picked up my car. Two days later, when Verona realised that I had taken my car, she sent an email saying that although she knew that there was a restraining order in place she still wanted to contact me and apologised for what had happened.
73.Verona and I continued to be in contact by telephone, text and email the whole time and we decided to meet at her home. I drove to the Canning Vale property and I parked the car across the street. Verona and I had sex, champagne and celebrated being back together. However the neighbour saw my vehicle and reported it to the police.
74.When the police attended the property we were in bed together after sex. We were both naked. Verona got up and put a dressing gown on and I put my underwear on, and she suggested I hide in the wardrobe. There were two glasses and a bottle of champagne, and it was obvious to the police that someone else was in the house. They came into the bedroom and found me straight away. They explained that they could see that everything was fine and in order, but there was a restraining order in place and I shouldn’t be there. They took me home. This resulted in the breach of the VRO.”
17. As regards the road traffic offences of which he was convicted on 31 October 2008, the applicant stated:
“94. On 24 May 2008 I was involved in a minor car accident. I had been attending the correction centre for my supervision order and was driving home when I collided with another vehicle on a roundabout. We both stopped and I exchanged my details with the other driver and both of us drove away. I received a fine for this and also for not having a valid Western Australian licence. I was unaware that I needed to get one as I thought that my Italian licence allowed me to drive in Australia.”
18. The breach of the Intensive Supervision Order dated 14 February 2008, of which the applicant was convicted on 24 July 2009, was described by the applicant as involving his failing to attend three consecutive appointments with the local Community Corrections Centre. The applicant did not seek to explain his failure to attend those appointments.
19. As regards the offence of breaching a Violence Restraining Order, of which he was convicted on 22 March 2011, the applicant stated:
“160. In January 2010 Verona and I went to the Hopman Cup together and started to spend time together again, although the relationship continued to be erratic and volatile.
161.On the 28th March 2010 Verona was returning from her parents in Bunbury and called me, asking to have dinner together. I said ‘No we can’t because there is a restraining order in place’. Verona convinced me that there was nothing to worry about, that nothing would happen.
162.I was missing [D] and wanted to see him, so I agreed to meet her.
163.We met at a restaurant in Success. We had a pizza and [D] had chips. Verona started a discussion about our relationship; I said ‘Please don’t discuss this in a restaurant in front of other people’.
164.As soon as we had finished our meal I got up and paid the bill and said ‘Please let’s go’. Verona was upset, she wanted to keep discussing our relationship and I wanted to leave.
165.We went outside and Verona got in her vehicle and I put [D] in his baby seat, which was in the front passenger seat of her car. Then she rammed her vehicle into mine, twice and drove away dangerously very quickly. Verona later admitted to me in a Facebook message that she did this deliberately …
166.I asked the owner of the restaurant to call the police because of what she had done. The police arrived and I gave a statement. There were also three witnesses who saw the accident and the police took a picture of my car. I later obtained copies of the statements from the police under freedom of information …
167.After one week the police called me to give another statement and told me that because the restraining order was in place I had breached it.”
[The Tribunal notes that “[D]” refers to the applicant’s and Ms Wauchope’s son who was born in December 2008.]
20. Much of the applicant’s evidence, both in chief and in cross-examination, related to his relationship with Mr Wauchope from April 2006 until approximately April 2011 which he acknowledged had been “very volatile”, including “some very good times” when they had been “in love with each other” and “some bad times”. In the course of their relationship they were married in September 2007, had a child (a son) together (born in December 2008), and they were ultimately divorced in September 2011.
21. Various allegations by Ms Wauchope of sexual assault and physical assault on the part of the applicant towards her both before and after their marriage, and of physical assault towards their child, were put to the applicant. He denied the allegations of sexual assault towards Ms Wauchope and the allegation of physical assault towards their chid. He acknowledged, however, that there had been many “heated discussions” between him and Ms Wauchope throughout their relationship, sometimes involving physical contact, including “pushing” or “slapping”, perpetrated by each of them against the other.
22. It was also put to the applicant that Ms Wauchope had alleged that, during their relationship, he consumed alcohol excessively and used drugs, namely, “ecstasy” tablets and crystal methamphetamine “by licking it off his finger”. The applicant denied ever using crystal methamphetamine or any other “hard drugs” in Australia. He acknowledged, however, that he had taken one “ecstasy” tablet which, he said, was given to him by Ms Wauchope on their wedding day, and that he had had “a few smokes of marijuana with friends”.
23. The applicant acknowledged that he had made false statements and declarations in Departmental documents in connection with his arrival in Australia and subsequent visa applications. More specifically, he acknowledged that:
· in his incoming passenger card dated 17 July 2006, he had falsely stated that he had no criminal convictions and had falsely declared that that information was true and correct (G23, Exhibit R2, p 1);
· in his application for the visa on 13 October 2006, he had falsely indicated that he had no children or other dependants and he had falsely stated that:
-he had met Ms Wauchope on 9 April 2005 and had begun a spouse relationship with her on 9 September 2005;
-he had not been convicted of a crime or offence in any country;
and had falsely declared that that information was complete and correct (G7);
· in a “Personal particulars for character assessment” form dated 14 January 2007, and in an application for a Bridging visa B dated 22 February 2007, he had falsely stated that he had not been convicted of a crime or offence in any country, and he had falsely declared that that information was correct (G23, G24, Exhibit R2, pp 6, 7, 12, 16).
The applicant said, however, that, because he did not understand English, he “could not understand the questions” and “did not realise the paperwork was serious”, and he had relied on Ms Wauchope’s advice and assistance in completing those documents. He added that Ms Wauchope “ticked the boxes” and he signed.
24. The applicant also acknowledged that he had given false evidence at the hearing before the MRT on 2 December 2008, namely, his evidence that:
· he and Ms Wauchope met on 9 April 2005 and lived together for at least 5 months before coming to Australia;
· he did not indicate, in his visa application, that he had a son in Germany because he has never been sure that that person is his child;
· he had “not touched” any drugs “for 7 years now”. (G27, Exhibit R2, pp 24, 25).
25. The applicant said that he was required, under his Intensive Supervision Order, to attend anger management counselling and he attended a Relationships Australia Men’s Domestic Violence Program for 6 months from November 2010 to May 2011. He said that, as a result of that program, he came to understand “what is acceptable and what is not acceptable”, and he also learnt that his relationship with Ms Wauchope “was never going to work”.
26. As regards his feelings towards, and his relationship with, his son (born December 2008), the applicant stated:
“116. … I was with Verona for the birth and held [D] as soon as he was born; I promised him I would never leave him.
117.Every day I would visit Verona and [D] at the hospital. I went straight from work and when I arrived I would kiss them both and tend to them both. I took her flowers after the birth and bought [D] a teddy bear. I loved to sit with them and enjoyed being with my new son and wife. I also slept over for two nights.
…
119.During their stay in hospital Verona asked me to bathe [D]. I was a little bit nervous because he was so tiny. I expressed my concerns to Verona and we called the nurse who came to help me. Verona and I went with the nurse and we bathed [D] together.”
The applicant then described ongoing problems in his relationship with Ms Wauchope, culminating in his decision to move out of their home at the end of January 2009. His statement continued:
“133. We continued to communicate all the time and I would visit [D] as often as I could, although this was erratic, depending on Verona’s state of mind. Even when we were separate or together [D] was the focus of my attention, I love him. I would always go to him, kiss him, hug him and play with him.
134.I paid child support and additional money to Verona from the moment I left the home. Verona even wrote to Immigration confirming this on 9 March 2009 … I have documents from the Child Support Agency proving that I have kept up my payments - the minimum amount per week that I have ever been liable for is $56/week and currently child support is assessed at $126/week … I also had had deductions taken from my work salary …Also when [D] was born I started investing in an educational scholarship fund, ASG Friendly Society, and have paid approximately $130/month since his birth. I continue to this day to pay this fund. It will mature when he is 13 and I hope to be able to spend it on his education then. I have also paid day care, car repayments and I have often giving (sic) Verona additional ad hoc cash. Many of these payments can be seen in my bank statements … Even on the last night I saw Verona on 13 September 2011 I gave $300 cash because she told me she didn’t have money to buy food for [D].
135.In April 2009 we took a long weekend holiday to Sydney, to discuss the possibility of reconciliation, but this was unsuccessful.
…
137.After we returned from Sydney we no longer were a couple, although we remained in close contact all the time and always discussed issues about [D]. I was as helpful and supportive as I could be and as Verona would allow me to be.
138.On 6 May 2009 I obtained a court order as Verona was not giving me proper access to [D]. Verona signed the orders, she insisted that my time with [D] be supervised, and that she be the supervisor. It was a serious error to accept Verona as the supervisor. My visits and time with [D] were totally compromised because Verona used it as an opportunity to discuss our relationship, which I didn’t want to do.”
The applicant then referred to a relationship which he commenced with another woman [M] in late 2009. His statement continued:
“168. Around April 2010 I ended my relationship with [M] and committed to working on my marriage with Verona. I believed in trying to see if the relationship could work for the sake of my son [D], but many of my friends could not understand why I went back to Verona. Still I believed it was worth trying. I love [D] and wanted him to have family, parents who live together.
169.We moved back to the Canning Vale property in April 2010.”
Finally, as regards his son, the applicant stated:
“253. If I lose the opportunity to stay in Australia and am banned from re-entry I would lose my son [D], I would lose the opportunity to be a good father to him and be involved in his life and upbringing. When [D] was born I promised him that I would not leave him and would always care for him. I am fighting for my right to spend time with him and parent him properly. To lose this would be traumatic for me.”
27. The applicant referred to his present relationship with Kathryn (Kate) White whom he met in March 2011. He stated:
“247. Over the last eight months Kate and I have relied on each other for support and love. Both of us have aligned our priorities toward each other, when we met both of us had other relationships, including my complex situation with Verona and we both respected these circumstances, we have taken time to get to know each other, speaking daily and getting together in the afternoons. As our personal circumstances changed we were in a position to be more serious with each other and spend more time together. Which we were doing during August and September. (sic)
248.I have been getting to know her children, staying with them for dinner and supporting her as she is very busy and does not have family in Perth.
…
252.We both want to settle together, Kate and I have planned caring for each other’s children and how we can structure our lives together. We love each other. Our current situation has meant that we are both hopeful and cautious about our future. …”
28. The applicant’s statement concludes as follows:
“254. It would also be very hard for me to leave my job; I have been working for five years in the Market Authority and for Tony Galati for four years. I have been promoted to manager, I have my own products to promote and people who work for me and rely on me. I work seven days a week and love my job.
255.My job means that I can provide a future for all my children, continuing to support them all the time as I have been, as well as planning to provide something for their futures. As they get older I am looking forward to them living with me. I have started making these plans with the girl’s (sic) mothers. I hope that [L] (the applicant’s son in Germany, born January 2000) as well will join me as he gets older. If I went back to Europe I would have to start again and it would be very difficult to find a position that would allow me to provide for my children as I can now.
256.I have reached an age where I feel settled and mature; I am in a happy, supportive and loving relationship with Kate and we both feel that we have a future together, we are family. My relationship with Serafina and Vince Virzi is also very important to me; they have cared for me like their son since I first met them in 2006. Tony Galati, my boss, is my friend and like an older brother to me, he has cared for me and always guided me and given me opportunities. If I were to be banned from re-entry I would lose these relationships in my life.
257.I love my life in Australia and have tried to be a good, responsible person. I feel confident that my future here will be positive and without any more problems.
…”
The Evidence of the Witnesses Called by the Applicant
Kathryn Honor White
29. Ms White confirmed that she had signed a statement, dated 15 November 2011, for the purpose of this proceeding and that its contents are true and correct. That statement was tendered in evidence by the applicant (Exhibit A3).
30. Ms White said that she first met the applicant in March 2011 and that they commenced to have an “intimate” relationship in late July/early August 2011. She said that their relationship is now a very close and serious one and that she hopes and expects that it will continue indefinitely. She confirmed that she is an Australian citizen.
31. Ms White confirmed that the applicant has “never exhibited any violent tendencies” towards her or anyone else in her presence. She described him as a “responsible drinker” and added that he does not use drugs and that she has witnessed him “actively discourage” others from doing so. She also stated that the applicant relates well to her children and that she trusts him with them.
32. Ms White confirmed that she had received a telephone call and six emails from Ms Wauchope since she and the applicant had commenced their relationship, including a lengthy email, dated 18 November 2011, critical of the applicant (Exhibit A1, pp 40–42). She also stated that she had recently seen much “derogatory and defamatory material” about the applicant on Ms Wauchope’s public “Facebook”.
Solveig Messal
33. Ms Messal gave evidence by telephone from Germany. She confirmed that she had provided a statement, dated 10 October 2011, for the purpose of this proceeding and that its contents are true and correct. That statement was tendered in evidence by the applicant (Exhibit A5).
34. Ms Messal’s statement is as follows:
“ Mr Settimio Fina is the natural father of my daughter, [J].
She was born on … July 2003 in Rostock.
We are in regular contact with each other at shorter or greater intervals, depending on the circumstances.
In addition, Mr Fina regularly contacted us on birthdays or special occasions and sent his daughter presents.
Despite being separated, we consulted each other for problems or important issues regarding our daughter.
To my knowledge, Mr Fina is trying to maintain regular contact with all of his children. He invited his oldest daughter to visit him and paid for her flights etc.
I know that he loves all of his 4 children.
Our separation was merely based on our different interests.
Mr Fina never pointed a pistol at my head. This statement is based on the imagination of his Australian wife, Verona. I have no contact with her and I prefer not to maintain any contact, after she kept and keeps sending me angry emails about Mr Fina. I am not interested in getting involved in a relationship of my ex-boyfriend or comment on it in any way.
I have the feeling that he is happy in Australia, that he goes to work regularly and that it means a lot to him to build his future there.
In my view, Mr Fina’s ex-wife Verona has accumulated a lot of frustration and unresolved disappointment in relation to Mr Fina due to their separation, so that she feels the need to share this with everyone and cause him harm.”
Katrin Deuscher
35. Ms Deuscher gave evidence by telephone from Germany. She confirmed that she had provided a statement, dated 30 September 2011, for the purpose of this proceeding and that its contents are true and correct. That statement was tendered in evidence by the applicant (Exhibit A6).
36. Ms Deuscher’s statement is as follows:
“ I, Katrin Deuscher, born … May 1968, natural mother of Maxi Deuscher, born … December 1995, hereby confirm that Maxi’s natural father, Mr Settimio Fina … has always fulfilled his rights and obligations since our daughter was born.
After emigrating to Australia, Mr Fina has also contributed to all the greater expenses or carried these completely.
He paid for Maxi’s mobile phone, laptop, horse riding lessons and school excursions, and he also sponsored one holiday each summer (Italy, France, England and Australia).
Mr Fina does not only support his daughter, since he has been in Australia, he was also able to help me financially on several occasions.
The contact between Maxi and her father is heartfelt and very loving. They talk on the phone every weekend, whilst chatting online almost on a daily basis throughout the week.
He likes to spoil Maxi and reads every wish from her eyes.
He made plans for Maxi to stay with him in Australia for a few months after completion of her school education, so that she can improve her English skills and increase her chances of starting an apprenticeship.
Settimio Fina would do anything for his daughter. She is the most important person in his life, and this is what his wife Verona never wanted to accept. She always tried to drive them apart by telling lies about her father as well as slandering and insulting my family.
A particular incident that occurred during Maxi’s stay in Australia a year ago shows how important Maxi is for her father. Settimio’s wife Verona was so violent towards Maxi that I could still see the marks on her after 4 weeks when she was back in Germany.
Settimio immediately took his daughter and moved into a separate apartment with her the same night.
After that, his wife Verona lost it completely and harassed the two of them almost daily.
Her bullying even followed Maxi back to Germany. I was forced to block every single email address and telephone number, because Verona’s bullying towards Maxi was getting worse and increasingly aggressive.
Maxi has been receiving psychological treatment ever since.
I can certainly prove all these statements, and I would also be prepared to make these statements in Court.
I cannot wish for a better father for my daughter. Mr Fina was always supportive towards us despite our separation.”
37. Ms Deuscher said that her daughter had received numerous emails from Ms Wauchope and that she had read some of them and had forwarded some of them to the applicant. [The Tribunal notes that those emails are included in a bundle of documents (at pp 122–133) comprising attachments to the applicant’s witness statement (Exhibit A2).]
Maxi Deuscher
38. Maxi Deuscher, the applicant’s 15-year-old daughter, gave evidence by telephone from Germany. She confirmed that she had written a letter of support to the applicant, dated 2 October 2011. That letter was tendered in evidence by the applicant (Exhibit A7).
39. Maxi Deuscher’s letter states as follows:
“ I wanted to say thank you again, for everything that you are doing for me.
I am so happy to have a father like you.
You are always there for me and you want to fulfil all my wishes, you are doing everything for me.
Because of you, I was able to get to know Australia, you paid for my flights. And not only the flights, you also paid for everything else and you did so much to make me feel good. No matter how much Verona tried to drive us apart, you always stood by me and you were there for me.
You call me every weekend, you ask me how I am and you care about me. That’s what a real dad does!
I don’t understand how Verona can think that you are not looking after me?!
You are my idol. Later on, I would like to be there for my children in the same way you are there for me.
You even suggested that I could come to Australia for a while after finishing school and with that you could open the doors to a much better future for me.
I don’t know how you got mixed up with Verona. At first I still liked her. I really thought she was right for you. But then she revealed her real face to me and to you as well. I don’t understand how all this could happen.
I don’t know what she is thinking. I never met a person who attacks children, I mean, not just physically but also emotionally. She has insulted me, no, not just me, she has insulted my friends and family, which I think is even worse. Although she doesn’t even know them. I would have expected more from an adult! Well, things can be very deceiving. But what bothers me even more, and it’s really getting me down, is that I have to watch how she uses and destroys YOU, my own father!
I will never forget what she has done to you. Even though I am trying to push it to the back of my mind, I cannot forget it. I know that everybody makes mistakes, you too, and me, and I think everybody deserves a second chance, but the things this woman has done I will personally NEVER forgive!
She didn’t really hurt you physically, but she has done worse. She destroyed you mentally. And no, I am not exaggerating, it’s the truth. And let’s be honest here, most physical damage goes away after a while, but how long does it take to recover mentally?
Some never make it!
Well, she might be very smart (as she claims she is), but that won’t help her, when she stuffs it all up again for herself with all these little games!
How does the saying go? – Think before you act. Maybe some people should really follow this rule. If she had done a bit of thinking, she would probably have noticed that she doesn’t only stuff up your life, and mine (because without you I would never get a chance to visit Australia and have better career opportunities), no, she also stuffs up [D’s] life, because he is caught in the middle.
Papa, I had to cry when I was writing his letter. And I can say with clear words that all of this is the truth, and that I am more than serious about it all!!
I can only wish you all the best. You deserve to live a beautiful life and I hope that the people in Australia will understand this and give you a chance. Because you are not a bad person. You are the best father I can wish for and I am proud of you!”
40. Maxi Deuscher confirmed that she had received numerous emails from Ms Wauchope. Asked how she felt about them, she said she was “very sad and worried” about her father and that she did not believe the things that Ms Wauchope was telling her about him.
Ingrid Cortez
41. Ms Cortez confirmed that she had made a statutory declaration, dated 14 October 2011, for the purpose of the present proceeding and that its contents are true and correct. That statutory declaration was tendered in evidence by the applicant (Exhibit A8).
42. Ms Cortez’s statutory declaration is as follows:
“1. Mino Fina and I conducted a romantic relationship throughout 2011 beginning in April and recently ending, we remain good friends.
2.On Thursday 4th of August 2011 Mino went to his ex-wife’s home to visit his son [D].
3.At around 9.30 pm I received the first of three text messages from Mino’s phone which said ‘Hi Verona’ but it was written ‘Hiverona’ five minutes later I received the following message ‘loove my verona amo’ five minutes after this I received the third message which read “im wit my verona fuk of now’.
4.I immediately realised it wasn’t Mino as he only messages me in Italian as he doesn’t write English well. Verona purposely used incorrect grammar to make me believe that they came from Mino. I did not respond to any of the text messages.
5.When I did not respond to any of the text messages I received a call from Mino’s phone. I answered ‘Hello’ and Verona (his ex-wife) began to yell abuse ‘Listen to me fucking bitch, Mino is with me now, he told me he wants to be with me and our son so if I see you near him again I will kill you’ once I heard this I hung up without saying another word to her.
6.My phone rang once again so I turned it off; the next day when I turned it on I had three missed calls from Mino’s number from the night before.
7.Mino rang me the following day and I explained what had happened and what Verona had threatened me with. Mino realised that Verona must have taken his phone whilst he was asleep with his son. I had no hesitation in believing him.” (original emphasis)
43. Ms Cortez said that her serious relationship with the applicant ended in August 2011 after she received the telephone call referred to in para 5 of her statutory declaration. She said that she had never had a conversation with Ms Wauchope before then and she assumed that the telephone call was from Ms Wauchope. She added that she also assumed that the text messages referred to in para 3 of her statutory declaration were sent by Ms Wauchope.
Mercurio Cicchini
44. Mr Cicchini confirmed that he is a Clinical Psychologist with 34 years’ experience, including 10 years’ experience as a prison psychologist, and that, in addition to conducting a private practice, he has undertaken forensic assessments for the criminal courts on behalf of the Department of Corrective Services.
45. Mr Cicchini also confirmed that he had, at the request of the applicant’s solicitors, prepared a psychological report regarding the applicant, dated 18 November 2011, for the purpose of this proceeding. That report was tendered in evidence by the applicant (Exhibit A19).
46. Mr Cicchini said that he interviewed the applicant on 10 November 2011 for approximately 2 hours, and subsequently telephoned him 3 times for clarification of certain matters, for the purpose of preparing his report. He confirmed that he had never met the applicant before 10 November 2011. Mr Cicchini also confirmed that he had been provided with various documents, including details of the applicant’s recorded criminal history in Germany and Australia and a statement of the applicant (which, the Tribunal infers, was similar to the applicant’s abovementioned witness statement) setting out chronologically the events in his relationship with Ms Wauchope.
47. Having covered the abovementioned matters in some detail, Mr Cicchini’s report concludes (at pp 15–17) as follows:
“ Clinical synthesis
There is no doubt that Mr Fina has not dealt with the challenges posed by the negative events of the above relationship in a perfect manner. He has over-reacted emotionally on several occasions when feelings of jealousy have been aroused. (However it would also appear that he has had the misfortune of trying to cope with the vagaries of a partner whose emotional vulnerabilities led to behaviours and tensions in which a repetitive withdrawal of support, or a threat of such, was ever present). In other words, he has had to deal with a particularly extreme level of threat to his emotional vulnerabilities – a situation which was extreme in its severity.
The reactive disposition to jealousy apparent in Mr Fina is a clinical issue which warrants further attention, notwithstanding his involvement in a Domestic Violence Programme for about 6 months. Unless addressed therapeutically there is a latent risk of a regression to behavioural acting-out, if Mr Fina is exposed to intense stresses of the type recorded above. The risk is latent or dormant in that Mr Fina will function satisfactorily if his underlying sensitivities to rejection/abandonment/ sexual infidelity are not aroused by a female with whom he is in a meaningful relationship. However such sensitivities can be re-aroused, if relevant stresses were to arise, and can only be reduced in their motivational propensity through therapeutic gains (development of insight and tolerance of the underlying negative feelings).
A clinical analysis suggests that the negative features in the above relationship which have brought Mr Fina to the attention of the authorities since coming to Western Australia with his partner involve attachment disturbances from early childhood which underpin feelings of insecurity and jealousy. Sadly, both parties appear to have this sensitivity, and do not appear to have handled the associated insecurity and felt vulnerability in constructive ways. The parties seem to have responded to perceived abandonment/rejection/loss of support in antagonistic ways which increased stresses and conflict. Also, acting-out (reacting behaviourally) as opposed to processing negative feelings in the absence of retaliation.
Comments on Mr Fina’s attitude and behavior in relation to judicial obligations and the law
It could be said that the conflicts, stresses, estrangement and withdrawal of support evident above have continued to unfold over time, culminating in Mr Fina’s current predicament. Despite these setback (sic) and disappointments Mr Fina does not present as being vindictive, but remains passively shocked by such events.
The details provided by Mr Fina offers (sic) a perception of his criminality which may not match that presented via Immigration Department records. The writer, who has over 30 years’ experience dealing with antisocial persons in this State, and with members of the general community, does not agree with the opinions expressed in the Statement of Reasons for Refusal of a Visa, that ‘over the last 3 years he has displayed a repetitive pattern of violent offending’ (Point 11), and that his breach of judicial orders on three occasions, most recently in March 2011, ‘demonstrates his disregard for the law’ (point 12).
With respect to Point 11, the serious offence in WA was Aggravated Burglary and Commit Offence in Dwelling, which did not attract a prison sentence, but penalties of Intensive Supervision Order for 12 months, and 75 hours community work. The Assault offence involved low level contact (Common Assault – not Aggravated Assault Occasioning Bodily Harm, or Grievous Bodily Harm). Furthermore, he has not incurred any additional convictions for violence. It needs to be clarified that it cannot be assumed that a Breach of a Violence Restraining Order involves or constitutes an act of violence (as the incidents described above clearly show). Having consensual, loving sex can constitute a breach.
Mr Fina explained that his failure to comply with the original Intensive Community (sic) Supervision Order was associated with the requirement that he attend group counselling. He said that he attended a couple of meetings, but stopped attending, in part, because in 2008 his English language skills were under-developed. Of course, he could have confided in his supervising officer about the problem, and asked for a revision of the requirements – but failed to do so. But overall, the ensuing Breach can be viewed more as a failure in communicating and solving a problem than as a ‘disregard for the law’, which has been attributed in this case. A second contributing factor to not fulfilling his obligations was that his wife was pregnant at the time, and he felt that he should be there for her to provide support. In that case he ‘pulled the wrong rein’, so to speak, and has gained little from his decision.
Risk and benefits to the community
My opinion is that Fina (sic) does not pose a serious risk to the wellbeing of members of the Australian community, although there is some risk, given his history of acting rashly on occasions, of some types of offending, particularly in association with relationship stresses, if the recur. However, those risks can be reduced by his undertaking psychological counselling, particularly at times of increased stress. Furthermore he has developed a new relationship. It would appear most unlikely that the relationship stresses he has hitherto experienced will ever recur or be replicated (given its intense, frequent and unusual nature). In other words, the stress loading on Mr Fina is likely to drop substantially if in the future a satisfactory conclusion is arrived at in terms of suitable contact with his son. Apart from a fair outcome in that domain, Mr Fina could also benefit if he is also protected from manipulations or provocations from potential antagonists by a fair application of the law.
Given his integration within the Perth community as a worker, I believe his desire to remain in the country, and to find contentment in his endeavours and family relationships, should be supported. In this way he, his son, and the local community can all benefit.
…” (original emphasis)
48. Mr Cicchini acknowledged that he had only been provided with the applicant’s account of his relationship with Ms Wauchope and he confirmed that he had not spoken with Ms Wauchope. He said, however, that the applicant had informed him of Ms Wauchope’s allegations of sexual assault and common assault.
49. As regards the Domestic Violence Programme undertaken by the applicant in the period November 2010 – May 2011, Mr Cicchini opined that the applicant had “made some gains” and has acknowledged that, in respect of his relationship with Ms Wauchope, he had sometimes over-reacted emotionally and behaved inappropriately.
50. Regarding the risk of the applicant’s engaging in violent behaviour in the future, Mr Cicchini opined that there continues to be some risk, but, he added, only if the same kind of relationship stresses recur – and he further added that the “odds” of that happening are “very low”. He also opined that the applicant would benefit from ongoing counselling.
Additional Material Relied On by the Applicant
51. Numerous character references, in support of the applicant, are included in the G Documents (G20, pp 134–165) and in exhibits tendered in evidence by the applicant (Exhibits A9–A18). It is unnecessary to set out those references in these reasons.
The Evidence of the Witnesses Called by the Respondent
Verona Marie Wauchope
52. Ms Wauchope confirmed that she had signed a witness statement, dated 25 November 2011, for the purpose of this proceeding and she said that everything in that statement is “100% the absolute truth”. That statement was tendered in evidence by the respondent (Exhibit R3).
53. Mr Wauchope also confirmed that she had made a written statement in November 2009 as a result of a sexual assault on her by the applicant on 31 October 2009 as described in paras 161–179 of that statement (G12, pp 105–107). She said that she had spoken to her mother about the incident later that night, and that on the following day she had spoken to a “male friend” of the applicant who advised her to go to the police. She said that she went to the sexual assault centre and made the statement a few days later. She acknowledged that she had not signed the statement and explained that a detective at the police station had told her that only 2%–3% of such allegations of rape result in a conviction and that it could take up to 18 months, so she decided not to pursue the matter. She confirmed, however, that the contents of the statement are “absolutely true”.
54. In her witness statement (Exhibit R3), Ms Wauchope stated:
“5. I have read the applicant’s statement. I acknowledge that my relationship with the applicant was unstable and very shaky. I also acknowledge that I often became very angry and emotional at the way he treated [D] and me. However, I did not write all of the Facebook emails (sic) to the applicant that were attached to his statement. I believe some Facebook messages and emails, as well as many SMS messages have been fabricated in his attempts to make me look hysterical/obsessive. The applicant always insisted on access to my Facebook account so he could check on my contact with other men. Sometimes I gave my phone to friends because I could not bear communicating with the applicant. Sometimes my friend and colleague [CL] would communicate with him via SMS pretending to be me.”
55. The remainder of Ms Wauchope’s witness statement is divided into headings as follows.
56. Under the heading “General habits of the applicant”, Ms Wauchope refers to the applicant’s alcohol consumption and drug taking, including assertions that:
· the applicant had been fired from a job because of “frequent absences” due to hangovers;
· one of the applicant’s fellow workers told her that the applicant “would take drugs at work in the morning to wake up and enjoy his day, and by midday when the drugs started to wear off, he would drink excessively to ‘come down’ off the drugs”, and that the applicant had told her that he stole drugs from the sons of his boss;
· she “often saw the applicant taking ecstasy talents and crystal meth at home” and that he took crystal meth “by licking it off his finger”.
57. Under the heading “Violent behaviour”, Ms Wauchope referred to an incident when her son [D], who was then 2 weeks old, woke up crying in the middle of the night. Her statement continued:
“ … I saw the applicant picked (sic) him up, shook him and shouted at him. The applicant was standing next to the bed and said ‘here, you take him’ and he then threw [D] at me and went to sleep in another room. I was too scared to speak and I put [D] on my breast, he was screaming.
12.The next day I confided in a girlfriend, Helene Fuller, who called the Department of Child Protection. The next day I received a call from the Department asking me to attend the Cannington Police Station. I attended and spoke at length to a domestic violence officer. The police wanted me to make a statement against the applicant but I defended his action. I did not want to make a statement because I was scared of the repercussions of the applicant finding out.
13.The applicant became enraged when he discovered that Helene Fuller had reported the incident to the Department of Child Protection. The applicant blamed me for ‘getting him into trouble’ even though I had not intended that Helene call the Department. I promised never to speak with her again.
14.That night the applicant left he was yelling at me blaming me for talking to Helene. He told me ‘It is not your fucking business to talk about my life to other people. … I will give you nothing for [D], not one cent … you will get nothing from me’. And he left.
15.At approximately 9 pm I followed him to the driveway with my baby son in my arms, I was crying a lot at this stage. I begged him not to go. I said ‘Mino … please … don’t go now … I need you now Mino … please stay ..,. we can sort this out.’ The applicant was shaking his head and shouting ‘No … No … No!’
16.I watched him reverse out the driveway at about 9 pm. He did not look at me. I sat on the driveway with [D] still in my arms and cried for close to an hour before I could get up again.
…”
58. Under the heading “Lack of care and parental responsibility”, Ms Wauchope referred (inter alia) to:
· an incident in mid-December 2008 when she was driving home with the baby when a tyre burst, whereupon she telephoned the applicant (who was at home) for help, but he refused and hung up the telephone;
· the applicant’s practice of bringing fresh produce from the markets (where he was working) to their Italian neighbours and Italian pensioners he had befriended, while she was left to buy fruit and vegetables herself.
59. Under the heading “Promiscuity”, Ms Wauchope referred, in particular, to the applicant’s relationship with [M] in early 2010, and she also referred to her relationship with [DR] in April 2010.
60. Under the heading “Contact with applicant’s former partners and children and further violence from applicant”, Ms Wauchope referred to her contact with Ms Messal and Maxi Deuscher. She referred in detail to Maxi Deuscher’s visit in June/July 2010, including an incident involving an argument between her and the applicant resulting in the applicant deciding to leave with Maxi. Her statement continued:
“58. I was standing in the doorway watching him throw clothes on the bed. I picked up a wooden coathanger and in frustration I threw it on the floor … it bounced off the hard floor and hit the applicant in the shins. He flew into a rage chasing me down the passage. He grabbed me by the throat and punched me very hard in the side of the head. The second hit knocked me out.
59.[D] was strapped in his pusher in the living room. This was how I rocked him to sleep. He was now awake and screaming at the commotion. He was scared. I must have woken up after a few minutes as the applicant was still there stepping over me in the passage as he was taking things to his car. He was shouting at me “DIE VERONA DIE …. YOU DESERVE TO DIE”.
60.He then left with Maxi ignoring [D] completely. Maxi was begging me not to call the police. She had seen her father hit me and appeared very scared by what she saw.
61.I got up and picked up my son. I then grabbed the landline and called my mother who immediately called an ambulance.
62.I refused to make a statement to police who arrived with the ambulance because I was scared of the repercussions.
63.About 4 months later the applicant and I reconciled. …”
Ms Wauchope also referred to an incident in February 2011 when she returned home after a birthday celebration dinner with her two older children (which the applicant did not attend). Her statement continued:
“65. After the kids left I went to bed and the applicant fell asleep on the couch. It was a hot night and I was only in my underwear. I went out to the couch and put my hand on the applicant’s shoulder and tried to rouse him to tell him to come to bed. The applicant flew into a rage and hit me in the face and smashed up a pedestal fan. The noise woke [D] who ran into my arms and screamed ‘No Daddy, Mummy hurt’. The applicant pushed me out into the street with [D] in my arms, wearing only my underwear. …
66.My neighbour called the police who arrived within 5 minutes. Four police cars arrived on the lawn and took the applicant away as he was well known to police for his dangerous and violent behaviour due to the number of calls that I had made to the police following situations of domestic violence.
67.In April 2011, the applicant was at my house and we started to argue. He shouted at me that ‘It is true Verona … and don’t you hold this against me later … it is true I stayed with you to get my visa … all my people told me to do this … but IT WASN”T WORTH IT … IT WASN”T WORTH IT!!!’ Hearing this was the last straw for me, I felt extremely depressed and was admitted to Marian Centre because I could not deal with my situation any longer. The Marian Centre provides inpatient and outpatient services and a range of therapy, specialising in depression and anxiety.
68.I never tried to resume a relationship with the applicant after this night. The applicant came to the Marian Centre in April 2011. He told me he loved me and would give me two weeks to sort out my life. I told him I did not want two weeks and that it is over between us.
69.The applicant then became very upset and angry. He did not try to see [D] again until weeks before he was detained in September 2011.”
61. Ms Wauchope’s witness statement concludes as follows:
“75. I am gravely concerned and have seen first hand the emotional turmoil and physical hurt which [D] has experienced. I believe that [D] has suffered greatly because of the applicant’s actions and I consider it best for him not to have any further contact with the applicant.
76.I have had a number of dealings with the Department of Child Protection. On 8 November 2011, I requested that the Department provide me with a summary of their involvement. Annexed hereto and marked ‘VMW4’ is a letter from the Department of Child Protection which I received on 9 November 2011.”
62. Annexure “VMW4” to Ms Wauchope’s witness statement is a letter, dated 9 November 2011, from a Child Protection Worker, Department for Child Protection to Ms Wauchope which states as follows:
“ I am writing to provide you with a summary of the Department for Child Protection’s involvement with yourself, your son [D] and your ex-partner Settimio Fina.
Reason for DCP Involvement
· There have been 3 periods of involvement with your family. The first was in the beginning of 2009 and the second was at the end of 2009. This current period of involvement has been since March 2010.
· Throughout the Department’s involvement there has been continued third party information received from Police of there being violence towards yourself in your relationship with Settimio which has also been verified by yourself throughout our involvement with you. The Department has been involved with your family to determine the safety of [D] in the household when you and Settimio were present together in a relationship.. The Department at the time had been concerned about your ability to protect [D] from witnessing violence in the household and concerns with your decisions at times to continue to stay in the relationship over protecting your son witnessing violence.
· Earlier this year you reported that [D] was struck in an incident where you were being attacked by Settimio and you were holding your son. You demonstrated appropriate action by going to the safety of a neighbour, calling Police and asking family to care for [D] for a short period of time. After this incident the Department and you came up with a safety plan with (sic) which I emailed to you on 15.02.2011 and the bottom line was that you were to obtain a Violence Restraining Order against Settimio. You advised that there were previous Family Court Orders in place allowing Settimio access to [D] which you were to supervise. Both Settimio and you were advised that DCP would have grave concerns for [D’s] safety if you were to supervise this given the past volatile nature of your relationship. Settimio was advised that he should contact a professional contact supervision agency. You were encouraged at the time also to contact the WA Family Court to request an alteration to the conditions of your previous Court Order so that you would not be responsible for undertaking the supervision of the contact between Settimio and [D].
· Since this time the Department has remained involved due to the Violence Restraining Order not being granted when it was contested by Settimio and due to your absence at the Court on the day of the hearing. The Department had held concerns that Settimio and you may resume your relationship however you have been clear with us that this has not happened and we have no information that would suggest otherwise.”
63. In the course of a lengthy cross-examination, Ms Wauchope (inter alia):
· confirmed that she is engaged to be married to Tony Buttery;
· confirmed that there is “no chance” that she will ever again live with the applicant or that she will voluntarily be alone with the applicant;
· confirmed that she had described the applicant as a “very jealous, obsessive and possessive, controlling person” (para 33 of her witness statement), but denied that she is a “very jealous, obsessive and possessive, controlling person”;
· acknowledged that she had sent the various text messages (pp 141–196 of the bundle of attachments to the applicant’s witness statement – part of Exhibit A2) to the applicant’s mobile telephone, with the exception of certain messages which had been sent by her friend [CL] with her assent;
· admitted sending certain “Facebook” messages, but denied sending certain other “Facebook” messages, extracted at pp 197–242 of the abovementioned bundle of attachments to the applicant’s witness statement (part of Exhibit A2);
· denied that she had sent any text messages to Ingrid Cortez on 4 August 2011 and denied that she had spoken to Ms Cortez by telephone on that day;
· acknowledged that she had sent an email to Ms White on 18 November 2011 warning her about the applicant (Exhibit A1, p 40);
· denied that she had prepared a poster (a copy of which appears at p 93 of the abovementioned bundle of attachments to the applicant’s witness statement) warning “all Australian women” about the applicant, although she added that she “had an idea who did” prepare that poster;
· denied that she had crossed or ticked the boxes in the applicant’s incoming passenger card dated 17 July 2006 (G23,) and added that she then “had no idea” that the applicant had a criminal history;
· acknowledged that she had written, in the applicant’s application for the visa, the date “9/04/2005” (G7, p 41) as the date on which the applicant and she had first met, and added that this was “just an oversight” (the correct date being 9 April 2006);
· confirmed that her various allegations of sexual assault and physical assault by the applicant towards her are true and correct;
· denied that she gave an “ecstasy” tablet to the applicant on their wedding day, 30 September 2007;
· denied that she had ever left their baby son [D] alone with the applicant since his birth;
· stated that she wants the applicant “out of [their] lives”.
Tony Buttery
64. Mr Buttery confirmed that he had signed a witness statement, dated 24 November 2011, for the purpose of this proceeding and that its contents are true and correct. That statement was tendered in evidence by the respondent (Exhibit R4).
65. Mr Buttery’s witness statement is as follows:
“ …
2. I have never met the Applicant.
3.I started to date Miss Verona Wauchope in April 2011. Our relationship blossomed very quickly and we soon fell in love. Verona is a wonderful person. She is very easy to get along with. Her persona is one of a gentle nature, kind and compassionate. She always puts others before herself; she is a very selfless person. I find Verona to be extremely honest with a high degree of morality.
4.When I met Verona I was a single parent with two small children aged seven and eight. My children have also fallen in love with Verona. Their relationship is very close and they have asked me if they can call Verona, mum. My daughter says Verona is the best ‘big’ person she has ever met. Verona stays at my house most days of the week, on days she does not stay my children are always asking for her.
5.Verona is a fantastic parent with three wonderful children, [D] almost three, Kurt nineteen and Brooke twenty two. All three children are a credit to Verona. Kurt and Brooke are an example of two intelligent, honest, decent young adults with impeccable manners. They are both studying for degrees at University, they will be a valuable contribution to society and an asset to any company they choose to work for. The character of Kurt and Brooke is a testament to the parental skills of Verona. Verona was divorced from Kurt and Brooke’s father (Mike) when their children were young, five and seven. The divorce was very amicable. Verona and Mike have stayed friends until this day. Kurt and Brooke see their father regularly.
6.When I first met [D] I noticed he was very clingy towards his mother. When I slept at Verona’s house I observed that [D] often awoke during the night in a very distressed state, he would scream for his mammy. Also when he awoke in the morning he would be in a similar distressed state. Watching [D] whilst he slept, it was obvious he was having nightmares, constantly moving, kicking with his legs and talking. Even if [D] slept in the same bed as his mother he would still wake up screaming for his mammy. It was obvious that [D] was going through emotional distress. This was quite heartbreaking to witness. I have never witnessed this behaviour with my own children.
7.In the last 3 to 4 months I have seen [D] on average 3 days a week. I see [D] when he and Verona stay overnight at my house and sometimes I stay overnight at Verona’s house.
8.Looking back the change in [D] has been remarkable. [D] is now extremely sociable, he no longer suffers from nightmares and sleeps in his own bed all night. He often calls me daddy and views my two children as his brother and sister. All three children get along exceptionally well. I view [D] as my son and love and care for him as my own child. [D] is a pleasure to be around. [D] is now an integral part of a stable loving family.
9.Recently I proposed to Verona and she accepted my offer of marriage. We are now engaged and our wedding is planned for 2012.”
Renata Lines
66. Mrs Lines confirmed that she had signed a witness statement, dated 24 November 2011, for the purpose of this proceeding and that its contents are true and correct. That statement was tendered in evidence by the respondent (Exhibit R5).
67. Mrs Lines’ witness statement is as follows:
“1. My Name is Renata Lines, my husband Michael and I are Verona Wauchope’s parents and we live in Bunbury.
2.My husband and I have endured many stressful days and nights and many threats and abuse from the applicant, Settimio ‘Mino’ Fina. He is a very violent man, drinks heavily and is very much into hard drugs. I have seen him drunk and lose his temper on many occasions and have regularly smelled marijuana and alcohol in his presence.
3.When the applicant first arrived in Australia, he stayed at our home with our daughter for a week or so. One morning as the household was busy with morning activities, I found him in our bedroom at my husband’s bedside table looking through his drawers (my husband takes prescription medicine for his back). I asked the applicant what was he looking for, he just waved his hand (he spoke very little English at that time). I started to get very concerned, I told my daughter this and she was very shocked. After they had left to go home, I became aware that money was missing from my purse ($50.00 plus some loose change).
4.In the last few years, we have had many phone calls at all hours of the night, and many times had to rush to Perth from our home in Bunbury at 2 am.
5.On 31 October 2009 I received a phone call from Verona just after 7 pm. Verona was very upset and told me that she had been raped by the applicant. Annexed hereto and marked ‘RL1’ is a true copy of the statement I made to Bunbury Police following this phone call.
6.The applicant is bad tempered and could not stand his son [D] crying when he was just a few weeks old.
7.On several occasions I saw him be quite rough with [D] in picking him up, especially in the first weeks after birth. I have also seen the applicant put the baby bottle into [D’s] mouth in a very rough manner.
8.On 1 February 2011, my daughter called me after a violent incident with the applicant. My husband and I drove up from Bunbury and we picked up [D] at 2 am and brought him back to our house. When DCP called us, they said we are putting a ‘red alert’ on the house, which they explained meant that we could ring a special number and the police would come to our house straight away.
9.Mino has never been there for [D]. Only since being taken into detention has he started action to get access to him.
10.[D] witnessed many physical attacks on his mother by Mino, and one where Verona was holding [D] in her arms in February 2011. The neighbour called the police and many of them came, handcuffed Mino and took him away. Verona’s neighbour told me this straight after it had happened.
11.We would be in shock if DCP would allow Mino to have access to [D]. It has taken a long time to settle the trauma, which [D] has endured.
12.After the attack on 1 February 2011, my husband and I drove to Verona’s place at 2 am and stayed the night with her. The next day we brought [D] back to Bunbury so he would be safe. Verona also came down to Bunbury after work the next day. That night I witnessed [D] waking in the middle of the night screaming, running up the passage and flinging himself at the front door in absolute terror.
13.Our daughter is now in a very caring and loving relationship, with a professional man, Tony Buttery, who has children of his own, and [D] is very much at home in the family type situation. I have seen the way Tony interacts with him, picks him up and treats him like his own son. I have seen [D] call Tony ‘Daddy Tony’ on many occasions.
14.I look after [D] 2 or 3 nights a week to help Verona. At the beginning of this year, [D] would not settle down to sleep without me being in bed with him. He used to wake up crying all the time. This gradually got better, but only in the last two weeks has he been able to sleep by himself and not wake through the night.”
68. The contents of Annexure “RL1” to Mrs Lines’ witness statement (referred to in para 5 thereof) are as follows:
“Statement of Renata LINES
1.I am a 62 year old Mortgage Broker and I currently reside in Bunbury.
2.My daughter is Verona WAUCHOPE
3.Verona is married to Settimo (sic) FINA.
4.IDENTIFY FINA is the accused present in court.
5.The accused and Verona have a 10 month old baby together, his name is [D].
6.Verona met the accused whilst she was working in Dresden, Germany.
7.In July 2006 Verona returned to live in Australia in (sic) with the accused.
8.Verona married the accused in September 2007.
9.Verona’s relationship with the accused began to deteriorate shortly after [D] was born.
10.Just after 7 pm on Saturday the 31st of October 2009 I received a phone call from Verona.
11.She said, ‘Oh Mum.’
12.I asked her if there was something wrong.
13.She was crying and sounded very upset.
14.She said, ‘I’ve just been raped by him.’
15. I said, ‘Why is he there.’
16.She said, ‘He just comes around whenever he likes.’
17.I told her to call the police.
18.She said, ‘I’m too frightened as he’s threatened to kill me before.’
19.I stayed on the phone with Verona for about half an hour trying to console her.
20.I tried to calm her down.
21.I told her to lock all the doors put the baby down and try and get some sleep.
I declare that this statement is true to the best of my knowledge and belief and that I have made this statement knowing that if it is tendered in evidence I will be guilty of a crime if I have wilfully included in this statement anything which I know to be false or that I do not believe to be true.
…”
69. In cross-examination Mrs Lines acknowledged that she had not seen the applicant take “hard drugs” or take $50 from her purse.
The risk that the conduct may be repeated
90. 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.”
91. The Tribunal accepts that the applicant’s abovementioned convictions of breaches of Violence Restraining Orders in 2008 and 2011 and breach of an Intensive Supervision Order in 2009, and his making false statements and declarations in Departmental immigration documents in 2006 and 2007 and his giving false evidence to the MRT in December 2008, are indicative of a degree of lack of respect for the law on his part and a preparedness to contravene the law when it suits him to do so. That being the case, the Tribunal cannot be satisfied that it is unlikely that the applicant will commit any offence in the future.
92. The matter for the Tribunal’s assessment in this case, however, is whether there is a real and unacceptable risk that the applicant may in the future commit a serious offence, or engage in serious conduct involving harm to the Australian community, of a kind contemplated by the Government’s objectives in para 5.1 and by para 10.1, of Direction [41].
93. In assessing the existence and degree of any such risk, the Tribunal notes that the applicant has not been convicted of any serious offences, within the meaning of para 10.1.1 of Direction [41], since his arrival in Australia in July 2006; nor is the Tribunal satisfied that the applicant has engaged in any seriously harmful conduct of a kind contemplated by the Government’s objectives in para 5.1 and by para 10.1, of Direction [41] since his arrival in Australia.
94. The Tribunal, for present purposes, attaches great weight to the psychological report of Mercurio Cicchini, dated 18 November 2011 (Exhibit A19), and to Mr Cicchini’s oral evidence (see paragraphs 44–50 above). In the Tribunal’s opinion, Mr Cicchini’s report is based on a comprehensive history of the applicant’s criminal convictions in Germany and in Australia, and of his relationship with Ms Wauchope in the period from 2007 to March 2011. Although the history of the relationship between the applicant and Ms Wauchope was provided to Mr Cicchini by the applicant, the Tribunal is satisfied that that history (which is set out at length in Mr Cicchini’s report) is both comprehensive and balanced and that it constituted a sufficient and appropriate foundation for the formation and expression by Mr Cicchini of a sound opinion as to whether the applicant poses a risk of harm to the community. Mr Cicchini’s relevant opinion, as stated in his report, is as follows:
“My opinion is that Fina (sic) does not pose a serious risk to the wellbeing of members of the Australian community, although there is some risk, given his history of acting rashly on occasions, of some types of offending, particularly in association with relationship stresses, if they recur. However, those risks can be reduced by his undertaking psychological counselling, particularly at times of increased stress. Furthermore he has developed a new relationship. It would appear most unlikely that the relationship stresses he has hitherto experienced will ever recur or be replicated (given its intense, frequent and unusual nature). …”
95. In his oral evidence Mr Cicchini referred to a Domestic Violence Programme which the applicant undertook from November 2010 to May 2011 and he opined that the applicant had “made some gains” from participating in that program and had acknowledged that, in respect of his relationship with Ms Wauchope, he had sometimes over-reacted emotionally and behaved inappropriately. As regards the risk of the applicant’s engaging in violent behaviour in the future, Mr Cicchini opined that there continues to be some risk, but only if the same kinds of relationship stresses recur – the probability of which, he opined, is “very low”.
96. The Tribunal accepts the abovementioned opinions of Mr Cicchini and it is satisfied that, at the present time, there is only a very low risk that the applicant may in the future commit a serious offence or engage in serious conduct involving harm to the Australian community of a kind contemplated by the Government’s objectives in para 5.1, and by para 10.1, of Direction [41]. The Tribunal is of the opinion, furthermore, that such a low risk of serious harm as the applicant presents would not, in the circumstances of this case, be regarded by the Australian community as unacceptable.
Conclusion regarding protection of the Australian community
97. Having regard to all of the factors referred to in para 10.1 of Direction [41] which are relevant to the circumstances of the applicant’s case, the conclusion of the Tribunal is that, although the “primary consideration” referred to in para 10(1)(a) of Direction [41] – namely, “the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence” – militates in favour of refusal to grant the visa to the applicant, it does not so militate to a significant degree.
Whether the person was a minor when they began living in Australia
98. 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 paragraph 6(1) of Direction [41], the word “minor”, for the purposes of the Direction, “has the same meaning as in section 5(1) of the Act”, namely, “a person who is less than 18 years old”.
99. The applicant was 34 years old when he first arrived and began living in Australia on 17 July 2006. The applicant was, therefore, not a “minor”, within the meaning of para 10.2 of Direction [41], when he began living in Australia.
100. Accordingly, this “primary consideration” cannot weigh in the applicant’s favour. Nor, in the Tribunal’s opinion, should it weigh against the applicant.
The length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity
101. 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.”
102. The applicant has been ordinarily resident in Australia from 17 July 2006. His first criminal convictions in Australia, which occurred on 14 February 2008, related to the offences of Aggravated Burglary, Breach of a Violence Restraining Order, and Common Assault which he committed on the same occasion on 17 July 2007. Thus, the applicant was ordinarily resident in Australia for 12 months before he engaged in criminal activity involving offences of which he was subsequently convicted. By his own admission, however, he had previously made false statements and a false declaration in his visa application form dated 13 October 2006. Accordingly, he engaged in conduct which, in the Tribunal’s opinion, “bears negatively on [his] character”, within the meaning of para 10.3(1) of Direction [41], only about three months after he began ordinarily to reside in Australia. The Tribunal assumes that the false statement which the applicant admittedly made in his incoming passenger card on 17 July 2006 was made before he arrived, and began ordinarily to reside, in Australia and, accordingly, that conduct does not fall within the terms of this “primary consideration”.
103. Having regard to the abovementioned circumstances, this “primary consideration”, in the Tribunal’s opinion, does not weigh in the applicant’s favour. It is, however, open to the Tribunal to regard this “primary consideration”, in the abovementioned circumstances, as weighing against the applicant but, in the Tribunal’s opinion, little, if any, weight should be attached to it in that event.
Relevant international obligations
104. 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).”
105. It is common ground that the only relevant international obligation in this case is the obligation, pursuant to Article 3 of the Convention on the Rights of the Child, to regard “the best interests of the child” as “a primary consideration”.
106. 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.
...
(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.”
107. In the present case the relevant child is [D], the son of the applicant and Ms Wauchope, who was born in December 2008 and who resides with Ms Wauchope.
108. As regards “factors which may indicate that the child’s bests interests are served by separation from the person” (para 10.4.1 (4) of Direction [41]), Ms Wauchope in her evidence alleged that the applicant has physically abused and neglected [D] and that [D] witnessed an assault by the applicant on her and was thereby emotionally distressed. The Tribunal, however, is not satisfied that these allegations are true.
109. The Tribunal notes the letter, dated 9 November 2011, from the Department for Child Protection to Ms Wauchope (see paragraph 62 above) which confirms that the Department became involved with Ms Wauchope and the applicant in the interests of [D’s] safety in three periods, namely, early 2009, late 2009 and from March 2010. It is clear, however, that the involvement of the Department came about as a result of Ms Wauchope’s allegations of violence and physical abuse on the part of the applicant towards her and [D] – allegations which the Tribunal is not satisfied are true. The abovementioned letter indicates, furthermore, that the Department’s concern for [D’s] safety had centred on the continuation of the domestic relationship between Ms Wauchope and the applicant but that the Department had subsequently been informed by Ms Wauchope that she and the applicant had not resumed their relationship and the Department had no information that would suggest otherwise.
110. For the purposes of para 10.4.1(4) of Direction [41], the Tribunal is not satisfied that any factors exist which would indicate that [D’s] best interests would be served by separation from the applicant.
111. Para 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:
·[D] is now three years old (having been born in December 2008); he is an Australian citizen and has spent the whole of his life in Australia;
·[D] has at all times resided with Ms Wauchope, his mother;
·the Tribunal is satisfied that the applicant loves and cares deeply about [D] and that he has conscientiously endeavoured, despite the ongoing difficulties of his relationship with Ms Wauchope (including periods of separation in 2009, 2010 and 2011 culminating in a final separation in April 2011 and divorce in September 2011) and Ms Wauchope’s lack of cooperation, to have as much meaningful contact and to maintain as close a parental relationship with [D] as practicable;
·the Tribunal notes that on 6 May 2009 the applicant obtained an Order from the Family Court of Western Australia providing for his access to [D] on Wednesdays and Saturdays from 2:00 pm to 5:00 pm;
·the Tribunal is satisfied that, if the applicant remains in Australia, he is likely to play as great a parental role in relation to [D] as practicable (given his divorce from Ms Wauchope and Ms Wauchope’s expressed wish that he have no further contact with [D]) up to [D’s] eighteenth birthday;
·Ms Wauchope presently fulfils a parental role in relation to [D] and it seems that Mr Buttery, Ms Wauchope’s fiancé, would be likely to play a step-parental role in relation to [D] after he and Ms Wauchope are married and are living together with [D] and Mr Buttery’s two children as a family unit;
·the Tribunal is satisfied that the applicant has already developed a strong bond with [D] and that, if he were physically separated from [D] by reason of his removal from Australia, such separation would be likely to have an adverse emotional effect on [D];
·the Tribunal is not satisfied that the applicant’s prior conduct has had any negative impact on [D] – the Tribunal does not accept Ms Wauchope’s evidence in that regard;
·[D] is only three years old and the Tribunal is unaware of any relevant wishes expressed by him;
·the Tribunal assesses that, if the applicant is removed from Australia, [D] will not accompany him and, accordingly, factors relating to living standards, educational, health and welfare services, and language and cultural barriers in the relevant overseas country are not applicable in this case.
Conclusion regarding relevant international obligation – the best interests of the child
112. Having considered all relevant factors referred to in para 10.4.1 of Direction [41], the Tribunal is satisfied, having regard, in particular, to the existing strong bond between the applicant and [D] and to the likelihood that the applicant will continue to play as great a parental role as practicable in relation to [D] and thereby maintain the close bond between them, that it would clearly be in [D’s] best interests if the applicant remained in Australia. Accordingly, this “primary consideration” relating to “the best interests of the child” militates against refusal to grant the visa to the applicant, and, in the Tribunal’s assessment, it so militates to a significant degree.
Overall assessment of the primary considerations
113. Having considered the primary considerations in this case, the assessment of the Tribunal is that they, on balance, weigh against refusal to grant the visa to the applicant. That assessment is based on the Tribunal’s opinion that, although “the protection of the Australian community” weighs in favour of refusal, it does not, in the circumstances of this case (as previously discussed), so weigh to a significant degree, and that that primary consideration, and the other two primary considerations (to the extent, if any, to which they weigh in favour of refusal), are outweighed by “the best interests of the child” which, in the circumstances of this case, weighs against refusal to a significant degree.
Other Considerations
114. 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”.
115. The respondent rightly conceded that none of the “other considerations” referred to in para 11(3) of Direction [41] weighs against the applicant and in favour of refusal to grant the visa to him.
116. However, some of those “other considerations”, in the Tribunal’s opinion, clearly weigh in favour of the applicant and against refusal to grant the visa to him – in particular:
·the disruption that the applicant’s removal from Australia would cause to his established ties to the Australian community, including his substantial employment ties and his very close relationship with Kathryn White, an Australian citizen, and his apparently wide circle of supportive friends and fellow workers; and
·the hardship to the applicant that would be likely to result from his removal from Australia, including:
- the great distress and emotional hardship that he would suffer by reason of his physical separation from his young son, [D], and the loss of the opportunity to continue to develop a close bond with him and to play a substantial parental role in his upbringing; and
- the loss of his established and apparently successful employment in Australia and of the opportunity to continue to build his future in Australia and to enjoy the Australian way of life and the extensive social network which he has developed in Australia.
Conclusion
117. Having regard to the totality of the primary considerations and the other relevant considerations in this case, the Tribunal concludes that those considerations, on balance, weigh against refusal to grant the visa to the applicant. Accordingly, the preferable outcome in this case, in accordance with Direction [41], is that the applicant’s application for the visa should not be refused under s 501(1) of the Act.
Decision
118. For the above reasons, the Tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration in accordance with the direction that the applicant’s application for the visa is not to be refused under s 501(1) of the Act.
I certify that the 118 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop
Signed: .............[sgd D Brodie]....................................
Associate
Dates of Hearing 28, 29 November, 15 December 2011
Date of Decision 15 December 2011
Date of Written Reasons 11 January 2012
Counsel for the Applicant Mr N Poynder
Solicitors for the Applicant Lewis Law
Counsel for the Respondent Mr R Hooker
Solicitors for the Respondent Australian Government Solicitor
Key Legal Topics
Areas of Law
-
Immigration & Refugee Law
Legal Concepts
-
Judicial Review
-
Natural Justice & Procedural Fairness
-
Legitimate Expectation
0
0
2