Hohua and Minister for Immigration and Multicultural Affairs
[2001] AATA 102
•14 February 2001
DECISION AND REASONS FOR DECISION [2001] AATA 102
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/1875
GENERAL ADMINISTRATIVE DIVISION )
Re TIHINI DALLAS FRASER HOHUA
Applicant
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Deputy President J Block
Date14 February 2001
PlaceSydney
Decision The decision under review is affirmed.
(signed J. Block)
..............................................
Deputy President
CATCHWORDS
IMMIGRATION – special category visa – cancellation on character grounds – whether applicant fails the character test – substantial criminal record – past and present general conduct – discretion - hardship
Migration Act 1958 – sections 5, 234, 499, 500(6C), 500(6H), 501, 501G
Kiokata v Minister for Immigration and Multicultural Affairs [1999] AATA 1022
Ly v Minister for Immigration and Multicultural Affairs [2000] AATA 339
Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666
REASONS FOR DECISION
14 February 2001 Deputy President J Block
(a) The Applicant seeks review of a decision made by a delegate of the Respondent on 5 December 2000 to cancel his Special Category (Subclass 444) Visa, pursuant to section 501 of the Migration Act 1958 ("the Act").
(b) The Applicant was represented by Mr Ray Turner, of Tzovaras Legal, solicitors, while Mr Nathan Cureton, of Blake Dawson Waldron, solicitors, appeared for the Respondent. The Tribunal had before it the G Documents lodged pursuant to section 500(6C) of the Act together with the following exhibits:
Exhibit A1 Outline of evidence of the Applicant
Exhibit A2 Outline of evidence of Michelle Hurt
Exhibit A3 Applicant's bundle documents.
Exhibit A4 Further bundle of documents.
Exhibit R1 Bench copy in respect of the conviction of the Applicant on 29 October 2000 of "assault occasioning actual bodily harm".
Background
The Applicant was born on 30 July 1963 in New Zealand and remains a citizen of that country. He attended school until the fifth form, and subsequently worked on and off in various positions. The Applicant arrived in Australia with Ms Michelle Hurt ("Ms Hurt") and their son, Jason, on 25 April 1999.
Relationship with Ms Hurt
(a) The Applicant met Ms Hurt and began a relationship with her at some time after his release from prison in the early 1990s. She was born in Australia, but moved to New Zealand with her family at the age of one year. She only resumed her residence in Australia when she came here with the Applicant in 1999. It is clear from the evidence that their relationship has been an unstable and volatile one. According to the Applicant's evidence, Ms Hurt moved in with him in 1992, while her evidence was that they had met in 1993 (G10, page 53). She was working at the time as the head chef in a restaurant. The Applicant's evidence was that she was aware that he had been in gaol, but that early in their relationship she did not know the reason for his imprisonment. The Applicant claimed that she did not know the length of his sentence, and that she knew about his imprisonment because her mother worked in the police force. The Applicant also stated that Ms Hurt was aware of his involvement with gangs.
(b) The Applicant gave oral evidence that the couple had relationship problems when he was trying to separate from the gang with which he was involved. He claimed that he and Ms Hurt separated, then reconciled after about 6 months. At some time after their son Jason was born they separated again, but reconciled shortly thereafter. They were also apart for a period of several months when Ms Hurt came to Australia to visit her mother. He and Ms Hurt again separated for a time, some two months before departing New Zealand. At the time she went to live in Tauranga, a town relatively close to where he was living. About 6 or 7 months after their arrival in Australia the Applicant and Ms Hurt had yet another period of separation. His evidence was that this was because he was maintaining contact with former girlfriends in New Zealand. He claimed that Ms Hurt monitored his calls to New Zealand, and that this resulted in arguments.
(c) Following the Applicant's release from Parramatta Correctional Centre, in February 2000, where he was held in relation to stealing charges, he again reconciled with Ms Hurt and resumed living with her. Once again, however, this situation did not last and they separated later that year. He claimed that his former girlfriends had started calling again and that he and Ms Hurt had arguments in consequence. It was following this separation that an apprehended violence order ("AVO") was taken out against the Applicant by Ms Hurt; the Applicant was also charged with assaulting her. (This incident will be discussed later in these Reasons.) Since the taking out of the AVO the Applicant has had contact with Ms Hurt. She visits him at Villawood Detention Centre.
(d) Ms Hurt gave a somewhat different account of their relationship in her oral evidence. She claimed that their relationship was now good, and that they had been planning to get married for several years, but that they were waiting until they were more financially secure. Ms Hurt is pregnant and they are expecting their second child. She admitted that there had been stress in the relationship and that this led to arguments. Her evidence about the number and length of separations was not consistent with that of the Applicant, as she indicated fewer separations for shorter periods of time. She stated that the Applicant has a short temper, especially after a hard day's work. While she admitted that they had not lived together since July or August 2000, she maintained that they had been close and getting along well since that time; (apart from the incident resulting in the AVO and assault charge in October 2000). She stated that she was looking into seeking help, perhaps in the form of some sort of counselling, for the Applicant, to help him deal with his temper and his troubled past.
Criminal History(a) The document at G6, page 43, from the New Zealand police, lists the offences for which the Applicant was charged with and convicted of in New Zealand, and is set out as follows:
COURT OFFENCE DATE RESULT DATE OFFENCE RESULT
DC WHAKATANE 13/03/1988 29/06/1988 MALE ASSAULTS FEMALE (MANUALLY) TOTAL FINES $200 SUPERVISION 9 MONTHS BEGIN 29/06/1988
DC WHAKATANE 07/10/1989 18/10/1989 OBSTRUCT / HINDER POLICE TOTAL FINES $150
DC WHAKATANE 06/01/1990 20/02/1990 ASSAULT PERSON WITH STAB / CUTTING INSTRUMENT IMPRISONMENT 1 YEAR BEGIN 20/02/1990
21/01/1990 MALE ASSAULTS FEMALE MANUALLY ON CRN 008700036 CUMULATV. IMPRISON 9 MONTHS
DC WHAKATANE 28/02/1991 08/05/1991 BREACH OF PAROLE IMPRISONMENT 3 MONTHS BEGIN 08/05/1991
(b) In respect of the first assault charge the Applicant was fined $200 and placed under supervision for nine months. In his oral evidence he claimed that at the time he was working as a hotel security guard and had intervened when a fight erupted between rival gangs, and that this led to the assault charge. He claimed that the victim was his aunt, and that he hit her when she stepped between him and her son, who were fighting as members of rival gangs.
(c) The second charge related to "obstructing / hindering police". For this offence he was charged $150. The Applicant's evidence was that he had stopped police carrying out an investigation into the conduct of one of the members of the gang, of which he was the chief or president.
(d) The third charge, in 1990, related to a stabbing assault. The Applicant was sentenced to 12 months imprisonment for this offence. He gave evidence that the incident occurred in the course of a fight between two rival gangs. He assaulted an opponent gang member with a Japanese sword, which allegedly belonged to the victim. A further charge, which was dealt with at the time, was that of assaulting a female. This incident occurred several days after the stabbing. The Applicant was sentenced to 9 months imprisonment, apparently to be served concurrently with the sentence for the stabbing conviction. He claimed that he could not remember the circumstances surrounding this latter assault, nor could he remember who was assaulted, or whether or not it was in the course of gang related violence.
(e) The length of time spent in prison by the Applicant remains unclear. While the record at G6, page 43 seems to indicate that the 12 month and 9 month sentences were to be served concurrently, the Applicant in his oral evidence stated that he spent the entire 21 months in prison. However, the time of imprisonment was to begin in February 1990, and the record shows that he failed to report to his probation officer in February 1991, indicating that he was out of gaol after 12 months. The Applicant could not remember when he was released. For his breach of parole the Applicant was sentenced to 3 months imprisonment.
Other incidents of violence
(a) There is a warrant for the Applicant's arrest in New Zealand in relation to the breach of a protection order (the New Zealand equivalent of an AVO). This protection order was taken out against him by (or on behalf of) Ms Hurt in 1999. In evidence the Applicant could not remember what led to the taking out of the protection order. He could not remember whether or not he struck Ms Hurt, but said he did not think that he did. The Applicant breached the protection order and as a result he was charged. However, the Applicant and his family departed New Zealand two days before his scheduled court appearance in relation to the charge. Ms Hurt stated in evidence that she and the Applicant were both aware of the impending court appearance, but decided they should nevertheless leave New Zealand; (she said that she did not consult her mother, who worked in the police, because she knew what her mother's advice would be).
(b) In oral evidence the Applicant stated that the incidents which led to the taking out of AVOs against him related to "skeletons in the closet" and differences from the past which he and Ms Hurt had been unable to resolve. She said the arguments sometimes got out of hand.
(c) In October 2000 an AVO was taken out against the Applicant by (or on behalf of) Ms Hurt following an incident at the Applicant's residence. This occurred at a time when the Applicant and Ms Hurt were living separately. The Applicant claimed that he returned home from work one afternoon to find that Ms Hurt and a friend were at his home. He claimed they had been drinking and the music was playing loudly. Jason was also present in the house, but he was upstairs watching television. The Applicant and Ms Hurt argued, and he became angry when she would not leave the house. He went outside and threw a rock, allegedly at the screen door, which broke through the screen and hit Ms Hurt in the face. The police were called and the Applicant was arrested. Although the Applicant claimed that the charge has not been dealt with, the papers indicate that he was convicted and received a $2000 fine (Exhibit R1).
Arrest for stealing property in dwelling house and robbery
(a) The Applicant was arrested in November 1999 as a consequence of an incident which occurred after the Applicant and Ms Hurt had separated. That incident is described in a police fact sheet at G8, pages 47-48, as follows:
New South Wales Police Service
FACTS SHEET Cont'd
Defendant: HOHUA, Tihini DallasANTECEDENTS
Police contacted New Zealand Police and established that he has arrest warrants outstanding for Assault matters and failing to appear at court. . Due to the serious nature of this offence and that defendants prior history in New Zealand for breaching his bail police ask that bail is refused.
FULL FACTS
Approximately 5.55pm on Tuesday the 30 November, 1999 the male and female victims were at their rented premises at 49 Amourin Street, Brookvale. The female victim was speaking with the defendant, her ex-partner on the telephone. This relationship broke down approximately 6 weeks earlier and the defendant had moved permanently from the home.
This phonecall became heated resulting from an argument over money. As a result the female victim hung up the telephone and took her five year old son and left the house.
OFFENCE 1 - STEAL FROM DWELLING.
Approximately 6.10pm the male victim was at home when the defendant walked through the open door of the house at 49 Amourin Street, Brookvale. The defendant started asking questions about where Michelle was and the male victim stated that he didn't know. The defendant was extremely aggitated and demanded to know where the female victim was. The defendant then walked into the female victim's bedroom and removed cash from her wallet, some compact discs, a stereo, a microwave, a Sony Play Station, some perfume, a jewellery box containing coins and jewellery.
OFFENCE2 - ROBBERY.
The defendant approached the male victim who was seated on a lounge. The defendant said, "I need $700 off somebody and your living under this roof so I want the money off you Nick as I'm not going to get the money any other way." The defendant said this in an aggressive tone. The defendant then raised his right fist and gestured it towards the victim and said, "I want this money, your coming with me, so I can get my money." The male victim complied with this and the defendant subsequently drove the male victim to the Warringah Mall Commonwealth Bank ATM and he told the male victim to withdraw $700 in cash. The male victim withdrew the $700 and handed it to the defendant. The defendant then drove the victim back to 49 Amourin Street, Brookvale and re-entered the home and took a house key and left the address.
The male victim states that he was petrified during the ordeal and genuinely feared personal injury from the defendant if he didn't comply with his demands. The male victim further stated, "I felt that the best option for me was to stay quiet and do whatever Dallas told me for my personal safety."
Approximately 11.00pm on Tuesday the 30th November, 1999 the defendant returned to 49 Amourin Street, Brookvale. The female victim contacted police and at 11.05pm the defendant was arrested.
The defendant was conveyed to Dee Why Police Station where upon legal advice he declined to answer any questions.
The defendant was searched and police located $759 in cash, essentially $50 notes, the amount stolen from the male victim during the robbery and the money removed from the female victim's purse. Also within the defendant's wallet was the $230 New Zealand dollars.
The defendant and the defendant's flatmate gave police permission to retrieve the female victim's property that was in the defendant's bedroom.
All property recovered.
(b) The charges in question were not proceeded with and there were no resulting convictions. Evidence was not given by either any member of the police force or by a man referred to as "Nick" (referred to later in this paragraph). Having regard to the decision in Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666 (at 690), the Tribunal does not accord any probative value to anything in the police fact sheet which goes beyond descriptions of the surrounding circumstances given by the Applicant and Ms Hurt.
(c) As set out previously, the Applicant and Ms Hurt were separated at the time. Nick, a work-mate of the Applicant, was sharing the residence, in which the Applicant had previously resided, with Ms Hurt. A bond of approximately $1,400 had been paid, half by each of the Applicant and Ms Hurt. The Applicant said that there was no agreement with Nick that Nick would pay any amount to the Applicant, while Ms Hurt said that there had been such an agreement.
(d) The Applicant went to the house and took money (in both New Zealand and Australian currency) belonging to Ms Hurt and, in addition, certain chattels. She said that the chattels had been given to her by the Applicant. When it was pointed out that they were nevertheless hers she said dismissively that they were only material things. The chattels are specified in the "facts sheet" quoted and referred to in paragraph 6(a) above. They included a stereo, a video cassette recorder, a microwave oven and a jewellery box containing both the Applicant's and Ms Hurt's jewellery.
(e) The circumstances in which Nick came to pay $700 to the Applicant are not clear. The Applicant denies that there were any threats against Nick; he said that after all only Nick knew the address of his own bank, where money was drawn from the ATM at that bank, and he had given directions to the Applicant as to this address.
(f) In the absence of evidence by Nick the Tribunal does not find that $700 was extracted from him by threats of any kind. However, the Applicant clearly felt that he was entitled to $700 from someone, probably Ms Hurt. (As set out previously, his evidence was that there was no agreement with Nick obliging him to pay this amount.) All this being so, there was no explanation of why the Applicant took money and goods from Ms Hurt and in addition obtained payment of $700 from Nick.
Misleading statement on incoming passenger card
(a) The Applicant and Ms Hurt arrived in Australia in April 1999. On the flight from New Zealand the Applicant was asked to fill in an incoming passenger card (G7, page 45). In his evidence, the Applicant claimed that he had taken medication prior to the flight, as he was afraid of flying, and as a result he was sedated. Both he and Ms Hurt claimed in evidence that she filled in the card, and the Applicant subsequently signed it. In answer to the question "Do you have any criminal convictions?" a tick was placed in the box marked "No". Their evidence differed on the question of whether or not the Applicant read the card prior to signing it. The Applicant claimed he did not read it, while Ms Hurt stated that he did look at it before signing it.
(b) Ms Hurt said in her oral evidence that she did not know about the Applicant's convictions and the fact that he has spent time in gaol. He said that she did know, and indeed it does not seem likely to the Tribunal that she knew nothing at all of his convictions and the fact that he had spent some considerable time in prison.
(c) The Applicant's oral evidence was that he merely signed the card and had nothing to do with its completion. However, in a letter dated 31 January 2000 (G9, page 49) addressed to Ms Speed, (the Applicant's case officer at the Visa Cancellations Unit of the Department of Immigration and Multicultural Affairs), he said:
…my only reckcollection [sic] about the flight was being woken up at the terminal and asked to sign a card that the attendant handed to Michelle on the Plane is about all I can remember as of now I do not think I have a visa other than my own Passport I came over on and also I have never being convicted on any charge in the last (12) months and nor have I been sentenced or imprisonment in the last 12 months.
(d) The incoming passenger card in question does in fact contain reference to the last 12 months but in a different context. The letter to Ms Speed does, in the Tribunal's view, tend to indicate that the Applicant was not, as he said, wholly unaware of the contents of the incoming passenger card.
(e) Generally, in respect of the incoming passenger card, it would seem that the Applicant did have some knowledge of its contents. If it was filled in my Ms Hurt the Tribunal finds it difficult to believe that she knew nothing of his past criminal record and prison sentence.
(f) In any event, and as submitted by the Respondent, the Applicant must take responsibility for signing the form: Kiokata v Minister for Immigration and Multicultural Affairs [1999] AATA 1022 (per Deputy President Chappell). In that decision the Deputy President stated (at 73):
"…a person cannot avoid his or her obligations to answer questions accurately and truthfully in immigration applications by merely asserting that reliance was placed upon someone else to provide this information and it is they who should be held solely responsible for any deficiencies."
Gangs
(a) The Applicant gave evidence in relation to his involvement with gangs in New Zealand. He claims that he belonged to the "Black Power" gang in Whakatane, in the Bay of Plenty on the North Island. He gave evidence that he was the president of the club. He sought to change his role after his son, Jason, was born. At a meeting of the club he officially resigned from the club and handed in his badge. The club's membership was allegedly not happy about his resignation. He said he feared that if he returned to New Zealand he would be in danger. The Applicant also expressed a fear that if he returned to New Zealand with his son, Jason would be a potential target for the gangs.
(b) The Applicant expressed concern about Jason becoming involved with the gangs if they returned to New Zealand. While he claimed that he would do his best to stop his son becoming a gang member, he feels this would be difficult as the gang structure is so prevalent. He stated that there were 27 Black Power clubs in his home region when he left New Zealand. The Applicant gave evidence that there were Black Power members in Auckland, as well as on the South Island and the rest of New Zealand.
Failure to Meet the Character Test
Because he has been sentenced to a term of imprisonment for 12 months or more, the Applicant is deemed to have a substantial criminal record by the operation of subsections 501(6) and (7) of the Act. Accordingly, he does not meet the character test as defined in section 501 of the Act. The only question remaining to be decided is whether the residual discretion should be exercised in the Applicant's favour. In considering this question, I am bound by section 499 of the Act to take into account Ministerial Direction number 17 ("the Ministerial Direction"). This requires me to take into account three primary considerations: the protection of the Australian community, the expectations of the Australian community and the best interests of any relevant child, as well as some secondary considerations, which will be discussed below.
Protection of the Australian Community(a) As to the first primary consideration, I am to consider:
(a)the seriousness and nature of the conduct
(b)the likelihood that the conduct may be repeated, including any risk of recidivism.
(c)whether the visa refusal may prevent or discourage similar conduct (general deterrence)
(b) As to the seriousness and nature of the conduct, the Applicant's solicitor submitted that the Applicant's criminal history was at the bottom end of the spectrum of seriousness. However, the Ministerial Direction lists among its examples of offences which are considered by the Government to be very serious:
2.6 (n) any other crimes involving violence or the threat of violence:
such crimes are of special concern to the welfare and safety of the Australian community.
It is clear that the Applicant's actions fall squarely within this category.
(c) The Ministerial Direction also points to the sentence imposed for a crime as an indication of the seriousness of the offender's conduct against the community. The Applicant's solicitor submitted that the 12-month sentence imposed on the Applicant indicated that, on the scale of such offences, it was a relatively minor one. The Respondent submitted that the sentence imposed was indicative of a very serious offence. The Tribunal considers that the Respondent's submission is to be preferred.
(d) It was also submitted on behalf of the Applicant that the offence occurred some time ago, in 1990, and that this should be taken into account. However, the Applicant's past and present general conduct since that criminal offence has not reflected well upon his character. He has had AVOs taken out against him and has, (very recently indeed), been convicted of assault; he left New Zealand with an outstanding charge pending against him; he signed a form containing a misleading statement on his incoming passenger card; and he was involved in stealing property from Ms Hurt's residence. In respect of the false incoming passenger card it is likely, on a balance of probabilities, that he breached section 234 of the Act; the maximum penalty prescribed is such that it too must be treated as being in the very serious category. There is no evidence of recent good general conduct by way of counter.
(e) The Ministerial Direction requires decision-makers to take into account any mitigating circumstances in relation to criminal conduct, which may be evident from judges' comments or similar documents. Unfortunately the sentencing remarks of the trial judge in the hearing relating to the "stabbing / cutting" offence were not available to the Tribunal.
(f) Regarding the likelihood that the conduct may be repeated, the Ministerial Direction states that:
2.10 – It is the Government's view that the person's previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism.
(g) Relevant to the assessment of the likelihood of recidivism is whether a non-citizen commits a further offence after having been warned previously about the risk of refusal or cancellation. The Applicant was informed on 28 January 2000 that the Respondent intended to examine whether there were grounds to cancel his visa under section 501 of the Act. It is evident that the Applicant was aware of this warning, as he responded in writing on 31 January 2000. (This is the letter to Ms Speed referred to earlier in these Reasons). The rock-throwing incident, which led to the taking out of an AVO against him and the conviction for assault against Ms Hurt, occurred after this warning. So for that matter did the taking by the Applicant of Ms Hurt's property; even though she did not press charges and even though she said that his action related only to "material things", the evidence by them indicates clearly that the goods and money were taken without her consent.
(h) Also to be taken into account in assessing likelihood of repetition is the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make. There is no clear evidence of rehabilitation. The Applicant has been involved in acts of violence since the crime for which he was imprisoned. The Applicant's solicitor submitted that the Applicant has considerable family support and that Ms Hurt will help him to try and overcome his problems with anger and violence. However, there has been no evidence of this occurring to date.
The Applicant's solicitor submitted that deterrence is not at issue in this case, as domestic violence is not a rational, thought-out behaviour, and that cancelling the Applicant's visa would not deter domestic violence in the community in general. While general deterrence is not seen as a major factor in this matter, the Tribunal may, and indeed should, send a message that acts of violence by non-citizens will not be tolerated by the Australian community. Further, as submitted on behalf of the Respondent, cancelling the Applicant's visa would send a message that it is unacceptable for potential visa applicants to enter Australia without disclosing their criminal convictions; and moreover, that Australia will not offer sanctuary to those with outstanding charges in their country of origin.
Expectations of the Australian Community
(a) The Ministerial Direction states that "the Australian community expects non-citizens to obey Australian laws while in Australia". The Applicant's solicitor submitted that the Applicant's actions were not so serious that the Australian community would expect his removal from this country. Having regard to the Ministerial Direction and the weight which it places on the seriousness of crimes involving violence, I would have to disagree.
(b) It was further submitted on behalf of the Applicant that if anyone could be seen to need protection from the Applicant in the Australian community it was Ms Hurt, yet she fears no harm from him. The Respondent submitted that with regard to action such as domestic violence the test is not whether or not the Applicant's partner is willing to put up with such behaviour, but whether it is acceptable to the Australian community. Given the seriousness and nature of the Applicant's behaviour leading to his conviction, as well as his continued episodes involving violence, I consider that the Australian community would expect the Applicant's visa to be cancelled.
Rights of the Child(a) The son of the Applicant and Ms Hurt, Jason, was born in 1995. He was born in a hospital and there were no problems with the birth. His health was good, but there were no problems with finding doctors or medical care when necessary. It was the evidence of both the Applicant and Ms Hurt that soon after Jason was born the Applicant became his primary carer. The Applicant was undertaking seasonal work when his son was born, while Ms Hurt was in full time employment as a chef.
(b) The Ministerial Direction states that, in general terms, the best interests of the child will be served if the child remains with both parents. Countervailing considerations include any evidence that the child has suffered harm as a result of the non-citizen's conduct. There is no evidence that Jason has suffered at the hands of the Applicant. However, the fact that Jason was present during the incidents which led to the taking out of AVOs raises some concern, although there is no evidence that he came to any harm during these incidents.
(c) Ms Hurt initially stated in her evidence that she was not sure whether she would go back to New Zealand if the Applicant was forced to leave this country. However, she later claimed that she would most probably go with him, as they were a family, particularly in light of the fact that they had another child on the way.
(d) The relationship between the Applicant and Jason is a very close one. Ms Hurt gave evidence that Jason misses his father greatly and visits him in detention with Ms Hurt. During periods of separation between the Applicant and Ms Hurt, the Applicant has still maintained close contact with his son.
(e) Jason began his schooling in Australia. He has adapted well to life in Australia. He is involved in extra-curricular activities including Nippers at the local surf club, swimming lessons and studying French. Ms Hurt does not think he would have such opportunities in New Zealand. Ms Hurt went to school in Auckland, boarding there for some of the time, and stated in her evidence that she received a good education there. New Zealand has a well-developed education system and it is likely that, if he and Ms Hurt accompanied the Applicant back to that country, he could receive a good education and be involved in extra-curricular activities.
(f) Both the Applicant and Ms Hurt expressed concern over the prospect of Jason becoming involved with gangs if he lived in New Zealand. Ms Hurt claimed that this played a significant part in their decision to move to Australia. She stated that she did not think that Jason would have as many opportunities in New Zealand as in Australia. She was also concerned that people in New Zealand would know who Jason's father was, because of his prominent role in the gangs, and that this could cause problems for Jason. While the evidence was that the gang structure was prevalent throughout New Zealand, it would probably be less likely for Jason to encounter such problems if the family moved to another part of the country.
Rights of the Unborn ChildThere is no reason to doubt that when the second child is born the relationship between it and the Applicant will be a close one. However, that child has not, as yet, been born. I agree in this context that the decision of Deputy President Forgie in Ly v Minister for Immigration and Multicultural Affairs [2000] AATA 339 where she said in the context of the relevant international convention (at paragraph 73):
"…it is specifically because the international instruments need to give specific or implied recognition to unborn children in specific circumstances that adds weight to the conclusion that its general provisions relate to a child who is separate from its mother and so has become a human being as it has been understood at common law. Apart from the specific and implicit references to the unborn child in the Convention, the remainder are to the child who has been born and is leading an existence separated from his or her mother's body."
Hardship
(a) On the Applicant's incoming passenger card a box is marked "Visitor or temporary entrant" and the question "Your intended length of stay in Australia" is answered "2 months". Ms Hurt stated in her evidence that she ticked these options on the card because they had not necessarily decided they would stay in Australia. She said that if they had not liked Australia they would have returned to New Zealand. New Zealand is a neighbouring country to Australia with very similar social, cultural and related values to that of Australia and with a well-developed welfare system which could assist the Applicant and his family, should they return with him, in appropriate circumstances.
(b) In the time prior to leaving New Zealand the Applicant had been in full time employment for 6 months as a courier, and had had part-time employment as a hotel security guard for 3 years (G12, page 59; Exhibit A3, page 5). He has good employment references and there is no reason he could not find work of a similar nature if he returned to New Zealand. Ms Hurt now works as an office manager of a company on Sydney's northern beaches. She decided to change to this type of work from her previous career as a chef because she believes the hours are better for bringing up children. With the experience she has gained from her work here, her chances of getting similar work in New Zealand would be increased.
(c) Ms Hurt stated that she thinks it would be a step back for her family if they went back to New Zealand. Ms Hurt's mother lives in Australia, but her father and brother live in New Zealand. While she claimed that she was not in regular contact with them, she stated that they would probably help her if she needed assistance.
(d) Ms Hurt and the Applicant have been trying to have another child for some time. She is now pregnant with her second child, but she has not had a particularly easy pregnancy. She said her doctor had advised her to avoid stress, but the situation regarding the Applicant's future in Australia and these proceedings have been very stressful.
(e) If Ms Hurt decides to accompany the Applicant to New Zealand it may cause her some hardship. Her mother lives in Australia, so she would no longer have close contact with her. However, she was separated from her mother prior to moving to Australia in 1999. Having spent most of her life in New Zealand she should not have a problem with adjusting to life there. The hardship to Ms Hurt would be greater if she decided not to return to New Zealand with the Applicant, as she would not have his support in bringing up their children. However, on a balance of primary considerations, this factor is not strong enough to weigh in favour of not cancelling the Applicant's visa. Ms Hurt has been aware of the Applicant's actions, and indeed was involved with his leaving New Zealand with outstanding charges, as well as with making misleading statements on his incoming passenger card, which must weigh against her in the exercise of the discretion.
(f) The Applicant has a sister in New Zealand, a brother in Brisbane and a sister in Melbourne. He has not seen either of the siblings who live in Australia since he came here, but they have been in contact by telephone. Thus it could not be said that it would cause them any hardship if the Applicant was forced to return to New Zealand. His parents are both deceased, but he has several aunts in New Zealand. The Applicant has no business or other ties with Australia.
Expedited procedures(a) Section 501G(2) of the Act states that if a reviewable decision is made to cancel a visa and the person to whom it relates is in the migration zone, (defined in section 5 of the Act as Australia and its territories), notice of that decision to the person must be accompanied by 2 copies of every document, or part of a document, that was in the delegate's possession or under the delegate's control, relevant to the making of the decision and which does not contain non-disclosable information.
(b) Section 500(6H) of the Act requires that if an application is made to the Tribunal for a review of a decision under section 501 of the Act and the decision relates to a person in the migration zone:
the Tribunal must not have regard to any information presented orally in support of the person's case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review.
(Emphasis added)
(c) The Tribunal notes that the proper interpretation of evidence "in support" of the Applicant's application can be difficult. The Applicant's solicitor submitted that evidence in support can just as easily arise out of cross-examination as out of examination-in-chief.
(d) Certain evidence not in accordance with section 500(6H) of the Act was submitted; however I cannot take account of it and need not mention its precise content. The same comment could be made in relation to other evidence which arose in examination-in-chief and cross-examination and which had not been specified in relevant statements. It is my understanding that there was no dispute between the parties as to the evidence under this head which must be excluded.
General and Conclusion
(a) The evidence of the Applicant was often very vague, particularly as to dates and periods. In respect of relationships with other women, he said that he did not have relationships with them, but rather that they had relationships with him. I have no doubts as to his genuine love for Jason. However, that has not apparently sufficed to prevent periods of separation between him and Ms Hurt. Favourable references by employers were produced in respect of the Applicant; however they do not, in general, acknowledge his criminal record.
(b) The devotion which Ms Hurt displayed towards the Applicant is quite remarkable. She is a well-educated and presentable woman, who was inclined to pardon conduct over a period which many women would find unforgivable. She tended to be very vague as regards both the protection order and the AVO and the circumstances in which they were taken out, almost as if they were not obtained by her or with her consent. She said that, in relation to the overseas calls which gave rise to arguments, it was the costs which concerned her. The Applicant could quite easily, so she said, incur a substantial cost for one call; and that she was quite understandably concerned that the cost was more than they could afford.
(c) Having commended her devotion, I must note though that her conduct as regards the incoming passenger card and the departure from New Zealand was altogether questionable.
(d) In general terms it would seem beyond doubt that the Applicant is a man who is able to be violent, and sometimes with little provocation. The recent assault conviction is just one such an example.
(e) A return to New Zealand would not, in the Tribunal's view, be of great hardship to people who have lived all their lives in New Zealand. The Tribunal does not accept that the Applicant's gang membership will be dangerous to him throughout the whole of New Zealand. It is to be noted in this context that he remained in New Zealand (and indeed the same part of New Zealand) for years after he resigned from the gang, without suffering any harm in consequence.
(f) On balance this is not a case where the discretion in Part 2 of the Ministerial Direction should properly be exercised in favour of the Applicant, and accordingly the decision under review is affirmed.I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President J Block
Signed: .....................................................................................
Dominika Rajewski, AssociateDate of Hearing 29 January 2001
Date of Decision 14 February 2001
Solicitor for the Applicant Ray Turner
(of Tzovaras Legal)
Solicitor for the Respondent Nathan Cureton
(of Blake Dawson Waldron)
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