Hona and Minister for Immigration and Border Protection (Migration) - [2018] AATA 773

Hona and Minister for Immigration and Border Protection (Migration) [2018] AATA 773 (9 April 2018)
Division:GENERAL DIVISION
File Number: 2018/0275
Re:Petera Hona
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

Decision
Tribunal:Mr P W Taylor SC, Senior Member
Date:9 April 2018
Place:Sydney

The decision under review is affirmed.
.................................[sgd]...................................
Mr P W Taylor SC, Senior Member
Catchwords
MIGRATION – mandatory cancellation of visa – request for revocation of cancellation – character test – substantial criminal record – primary and other considerations – protection of the Australian community – nature and seriousness of the conduct – risk of reoffending – best interests of minor children – expectations of the Australian community – other considerations – prospect of rehabilitation – decision under review affirmed.
Legislation
Migration Act 1957 (Cth), ss 501(2), 501(6)(a), 501(7)(c), 501(7)(d), 501(3A), 501CA
Migration Regulations 1994 (Cth), rr 2.01, 5.15A, Sch. 2 Item 444
Secondary Materials
Direction No. 65 Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Mr P W Taylor SC, Senior Member
9 April 2018

Mr Hona is a 32 year old New Zealand citizen. He has lived in Australia since September 1989, when he was three and half years old. At that time, as a New Zealand citizen, he was an “exempt non-citizen” for the purposes of the Migration Act 1958 (Cth) (“MigAct58”). In 1992, the Migration Reform Act removed that concept, and created a “special category” visa class. As a matter of practical reality, he was automatically eligible for such a visa, and ultimately held a Special Category (Class TY Subclass 444) temporary visa provided for by the Migration Act 1958 (Cth) (“MigAct58”) s 32, Migration Regulations r 2.01 & 5.15A and Schedule 2 Item 444. (Although that kind of visa is formally described as “temporary”, it allows the visa-holder to remain in Australia so long as they are a New Zealand citizen.)
Between the ages of 22 and 29, Mr Hona committed 25 offences, and served two consequential periods of imprisonment. (They were from April to October 2014 and from November 2015 to May 2017.) As a result of those offences and sentences, Mr Hona had acquired a “substantial criminal record”. Consequently, he was precluded from satisfying the “character test” in the Migration Act 1958 (“MigAct58”) ss 501(2), 501(6)(a), 501(7)(c) & 501(7)(d).
The Minister must cancel the visa of any non-citizen prisoner if satisfied they have a “substantial criminal record”:- MigAct58 s 501(3A), 501CA(2) & (3). In January 2017, when Mr Hona was still in prison, a Ministerial delegate was so satisfied, and made the 31 January 2017 visa cancellation decision that underlies these review proceedings.
The Minister has a conditional discretion to revoke a visa cancellation decision. The exercise of that discretion is subject to satisfaction that either (i) the non-citizen prisoner in fact passes the “character test” (an unlikely contingency) or, (ii) there is “another reason why” the cancellation decision should be revoked:- MigAct58 s 501CA(4).
On 17 January 2018, a Ministerial delegate decided not to revoke the 31 January 2017 visa cancellation decision. That decision is the subject of Mr Hona’s review application in the present proceedings.
MINISTERIAL DIRECTION 65
The revocation discretion, when exercised by a Ministerial delegate or this Tribunal, is subject to the discipline of compliance with any current Ministerial direction authorised by MigAct58 s 499(1) & (2A). The relevant direction is “Direction no 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (“Direction no. 65”).
Although Direction no. 65 is a publicly available document, it is useful (at least for the purpose of providing an applicant with a reasonable explanation of the scope and content of the Direction) to outline its content and effect. Section 1 of Direction no. 65 contains a Preamble that details the objectives of the relevant MigAct58 provisions. The Preamble also provides a statement of “general guidance” for decision-makers. It then sets out “principles” which it describes as providing “a framework” within which decision-makers should operate in discharging their statutory function in individual cases.
The general guidance part of the Direction no. 65 Preamble declares commitment to protection of the Australian community from “harm as the result of criminal activity … by non-citizens”. It describes the “principles” as being of “critical importance” in furthering that objective. It declares that the principles “reflect community values and standards” to be taken into account in “determining whether the risk of future harm from a non-citizen is unacceptable”:- cl 6.2(1).
The principles stated in Direction no. 65 include the following propositions:
(a)the character of a non-citizens’ lawful presence in Australia is a conditional statutory right (that right is described, not quite accurately, as a “privilege”) to which a corresponding expectation (of law abiding respectful conduct) applies:- cl 6.3(1)
(b)the range of tolerance for “criminal or other serious conduct” by non-citizens, will be influenced by the nature of the conduct, the period of time the non-citizen has lived in Australia and the extent to which they have “been participating in, and contributing to, the Australian community”:- cl 6.3(5)
(c)the extent and nature of a non-citizen’s positive contribution to the Australian community are relevant considerations in the exercise of the statutory function:- cl 6.3(7)
(d)any adverse impact of visa cancellation on a non-citizen’s Australian resident minor children and other family members, is also a relevant consideration to which decision makers are required to have regard:- cl 6.3(7).
An expressly stated principle of community expectation is that a visa should be cancelled if the holder has committed “serious crimes”:- cl 6.3(2). Other parts of the principles contemplate some tolerance of criminal conduct. The degree of tolerance is stated to be “low” where the visa holder’s Australian community presence has been “only for a short period of time”. It is described as higher, where the person has lived in Australia since an early age, or for most of their life. The appropriate tolerance will depend on impressions about whether the nature of apprehended future harm is so serious that “any risk of future similar conduct in the future is unacceptable” in the totality of the relevant circumstances:-cl 6.3(4).
Section 2 of Direction no. 65, and Part C in particular, deals specifically with the exercise of the revocation discretion. It requires decision-makers to act in a manner “informed by the principles”, take into account “the primary and other considerations relevant to the individual case”, and recognise that primary considerations “should generally” be given greater weight:- cl 7 & 8. It then articulates the “primary” considerations” and some of the “other” considerations, to which regard must be had.
The “primary” considerations, to which Part C of Direction no. 65 requires regard, are:-
(a)the protection of the Australian community;
(b)the expectations of the Australian community; and
(c)the best interests of Australian resident minor children.
The three “other” considerations specifically discussed in Part C of Direction no. 65, and relevant to Mr Hona’s circumstances, are:-
(a)the strength, nature and duration of his Australian ties;
(b)the impact of any revocation decision on persons affected by his offending, and
(c)the nature and extent of any difficulties he would be likely to encounter as a result of being removed from Australia.
MR HONA’S CRIMINAL RECORD
Mr Hona’s various convictions and sentences are summarised in the Schedule to these reasons. The Schedule is arranged according to the date of Mr Hona’s various convictions. It includes (i) Mr Hona’s age at the time of each offence, (ii) the date of the events involved in the offence (where it can be confidently derived from the available material) and, (iii) details of the corresponding sentence, fine or behaviour bond. The information summarised in the Schedule reveals that Mr Hona’s 25 criminal offences include eight drug related offences, eight violence related offences, and eight traffic offences.
At the age of 25 (in September 2011), Mr Hona incurred convictions for speeding and unlicensed driving. He was fined, and disqualified from driving for 12 months. Of themselves, offences of these kinds would not figure significantly in any balanced assessment of the material considerations relevant to the exercise of the visa revocation decision. But in Mr Hona’s case, they tend to contribute to an unfavourable assessment of his re-offending risk. This is because the evidence shows that Mr Hona had obtained a learner’s permit in about 2008, it had been suspended (as a result of a fine default) in February 2009, and had expired five months later (in July 2009). He had never subsequently held a driver’s licence. The evidence does not show conclusively whether or not he continued to drive throughout the period after February 2009. But he was certainly willing to drive unlicensed by the time of the September 2011 offences. Moreover, four years later, in March and April 2015, he incurred five similar convictions. They followed his purchase of an unregistered car, and involved him driving it, and on two other occasions, another vehicle at different locations within a period of about seven weeks. That history tends to display a significant degree of indifference to lawful behaviour, and an incapacity to prioritise lawful compliance over the perceived exigencies of his personal circumstances and convenience. That view is rather corroborated by Mr Hona’s drug related offences.
Mr Hona’s drug offence convictions began in 2009, when he was 23. At the time he was living with his parents at Bondi, and working as a labourer. But he was also conducting something of a small business supplying cannabis. In relation to those offences, Mr Hona was dealt with, in October 2009, under the Crimes (Sentencing Procedure) Act (NSW) (1999) ss 9, 95 & 96. He was convicted and required to enter into two year good behaviour bonds, and to participate in counselling, educational development and drug and alcohol rehabilitation. However, within a year of entering into those bonds, Mr Hona re-offended (in September 2010) when he was apprehended with cannabis in his possession.
As a result of the bond breaches necessarily involved in the September 2010 offence, Mr Hona became liable to have his bond varied, and to be re-sentenced for the 2009 offences. It appears that his bonds were revoked but, instead of being sentenced to imprisonment in December 2010, Mr Hona was ordered to perform 100 hours of community service work:- see the Crimes (Sentencing Procedure) Act (NSW) (1999) ss 8, 98 & 99.
A Probation and Parole Service Report that preceded the December 2010 community service order noted that shortly after his October 2009 conviction, Mr Hona had been assessed as having a low risk of re-offending and not requiring supervision. By December 2010, he had a temporary job as a tiler, was living in short term accommodation with a cousin and had “nil immediate or extended family support in the community”. He had fallen back into cannabis use, substantially as a result of the influences of his circle of social friends. But he was thought to have a level of insight into his offending and suitable for a “medium to low level of intervention” from the Parole Service. It was this assessment, and the guardedly positive view it contained, that resulted in the community service order.
But Mr Hona failed to comply with the requirements of that order. As a result, the order was revoked, and he was given two, six month, suspended sentences in January 2012: see Crimes (Administration of Sentences) Act 1999 (NSW) s 115. In the meantime, in June 2011, Mr Hona committed two further drug possession offences – he was arrested at Bondi and found to have cannabis and “ice” in his possession. In March 2012, those offences were dealt with under s 10A of the Crimes (Sentencing Procedure) Act (NSW) (1999) – under which he incurred convictions, but no penalty.
Until September 2013 (and the assaults to which I shortly refer), Mr Hona’s only violence related offence was a late night altercation in a car park, when he was 22 years of age. That offence resulted in a good behaviour bond.
In May 2013, Mr Hona was arrested late at night at Surry Hills, and found to be in possession of numerous resealable bags containing cannabis. He was both using and supplying the drug. Four months later, Mr Hona was arrested again, on the four charges that resulted in his first period of imprisonment. These offences arose out of another late night incident in the car park of a McDonald’s restaurant at Waterloo, and later in a nearby street. Mr Hona’s version of events was that he was “provoked” by another group of people in the car park, one of whom bumped into him. Whatever occurred to start the incident, Mr Hona punched one of the others in the face (which apparently resulted in the victim suffering a broken nose), and then chased people around the car park, in an attempt to continue the assault. Not surprisingly, police were called. They encountered Mr Hona, a little later, in a nearby street. When they apprehended him, he was loudly aggressive and abusive. A little while later, Mr Hona’s partner (the Ms Farr to whom I later refer) arrived at the scene, and was physically restrained by the attending officers. That resulted in a further verbal outburst from Mr Hona, and he spat in the face of one of the officers.
The May and September 2013 offences were dealt with in April 2014, and resulted in Mr Hona’s imprisonment for six months from April to October 2014. In that period, his son, ‘HPTT’, was born. A year later, in September 2015, HPTT’s birthday was marred by a disagreement between Mr Hona and Ms Farr. That disagreement developed into a physical altercation in which Mr Hona kicked Ms Farr in the belly, grabbed her by the throat and pushed her onto a bed. When police attended Ms Farr’s unit building a short time later, Ms Farr reported that Mr Hona had been using drugs over the last three months, and that this had caused a significant deterioration in their relationship. Mr Hona himself told police that he had been using “ice”, abusing alcohol, and had not slept for several days.
The 1 September 2015 incident resulted in Mr Hona being the subject of an apprehended violence order (and a three month period of imprisonment following his January 2016 conviction). On 24 September, he was arrested again, after being found in possession of a small amount of cannabis.
In late November 2015, Mr Hona was arrested on the break and enter charge that resulted in his imprisonment between February 2016 and May 2017. The circumstances of the November 2015 offence involved Mr Hona entering the home of an elderly lady, in a highly agitated, drug affected delusional state, and wielding a large kitchen knife. He encountered the elderly occupant in the kitchen, held the knife out in front of him and signalled for quiet. Understandably, the lady was very frightened by both the knife, and by Mr Hona’s extremely agitated and erratic behaviour. But it does not appear that he ever intended or threatened her harm. Both some aspects of his observed behaviour, and his later subjective version of events, suggest that the main reason for his irrational and agitated conduct was a drug induced delusion that he was being chased by someone intent on shooting him. Under the influence of that delusion, Mr Hona had sought refuge in the lady’s unit. About an hour and a half after this incident, the police found Mr Hona hiding in a sewer outlet and screaming incoherently.
Mr Hona’s January 2016 custodial sentence for the assault on Ms Farr some three months earlier, was imposed with regard to the content of the pre-sentence report prepared by a corrections officer in the New South Wales Department of Corrective Services. It recorded Mr Hona’s explanation that he had been intoxicated at the time of the offence, having drunk “approximately four bottles of bourbon”. The report also noted Mr Hona’s concession of substantial illicit drug use, involving marijuana (starting when he was 13) and crystal methamphetamine (which he started to use when he was 18). The further history set out in the report involved an acknowledgement by Mr Hona that immediately before being arrested in November 2015, he had been using illicit drugs on a daily basis, and spending approximately $300 a day in so doing. The report assessed Mr Hona as unsuitable for any further community service order – because of his unresolved alcohol abuse and illicit drug use.
A psychiatric report of March 2016 addressed Mr Hona’s probable mental state at the time of the November 2015 offences. The report recorded a history where Mr Hona had begun abusing cannabis, alcohol and crystal methamphetamine following the death of his mother in 2011. In about September 2013, he had been prescribed anti-depressant medication, but had not taken any since some time in 2014. In the period before the November 2015 offences, he had been using a significant amount of crystal methamphetamine and cannabis on a daily basis.
The author of the March 2016 report opined that Mr Hona had suffered a major depressive episode following the death of his mother and that early traumatic experiences (which were not described) and a family history of mental illness (schizophrenia and bipolar affective disorder) may have made him vulnerable to mood swings. However, the psychiatrist opined that his contemporary presentation (as at 15 March 2016) warranted neither a diagnosis of major depressive episode, nor a diagnosis of bipolar affective disorder or schizophrenia. The psychiatrist opined that Mr Hona’s mental state at the time of the November 2015 offences was that of substance intoxication rather than psychosis.
RISK OF RE-OFFENDING
The litany of Mr Hona’s offences, as summarised in the Schedule, conveys an apparent likelihood of his future offending – because of the frequency of his offences, his historically apparent indifferent compliance with bonds, community service orders and the conditions attached to his January 2012 suspended sentence. That appearance is rather corroborated by his chronic drug abuse. It is further corroborated by his frequently exhibited tendency to violence.
In the history Mr Hona gave for the March 2016 psychiatric report, he recounted being quite disruptive at school and as having gotten into lot of fights. It would not be appropriate to draw any particular adverse conclusion from that bare acknowledgement, without more specific details of particular instances. But it is a consideration at least consistent with the aggression apparent in the incidents of September 2013 and September 2015. Furthermore, there are reports of other incidents, during Mr Hona’s period of incarceration where he was involved in fights. Again, without a full understanding of what each incident involved, and the circumstances in which it occurred, perhaps not much can, or should, be made of these reports. But there is an overall appearance that the capacity for violence which Mr Hona exhibited in the September 2013 and September 2015 incidents, lies not too far beneath the surface.
That appearance is apparently corroborated by reported incidents of assault during the initial period of Mr Hona’s immigration detention. On one occasion, he responded to another detainee’s pejorative description of him as a “dog”, by punching him on the side of the head and in the chest. At the time, Mr Hona described his behaviour as an angry reaction to the “dog” pejorative, which he described as the worst insult that could be levelled at someone in custody. Another incident several months later involved Mr Hona punching another inmate in the face with a closed fist. The incident was captured on closed-circuit television footage and, unexplained, tends to suggest an unprovoked attack. In the course of his evidence in the present proceedings, Mr Hona suggested that there was more to the incident, and that it arose out of some misunderstanding/conflict between himself and the other detainee. However that may be, it is difficult to see any, let alone any reasonable, justification for the face punch Mr Hona delivered.

The January 2016 pre-sentence report to which I referred above (see paragraph 25 above) contained a report of the result of an “actuarial risk/needs assessment” tool known as the Level of Service Inventory – Revised. That is a commonly used tool which seeks to derive a meaningful assessment of a person’s reoffending risk. The tool involves comparison of aspects of a particular person’s circumstances (broadly speaking their offending history as well as their social circumstances) with the actual reoffending history of a prisoner cohort with relevantly analogous circumstances. According to that tool, Mr Hona was assessed as having a “medium – high” risk of reoffending.
The totality of the considerations I have referred to above reveal a long history of substance abuse, a capacity for violence, and its unwarranted deployment on several occasions, including against his own partner. Added to those considerations is the purportedly objectively assessed re-offending risk reported in the January 2017 Pre-sentence Report. Those considerations combine to require a conclusion that Mr Hona represents a real risk of re-offending. For that reason, the primary “protective” consideration described in Direction no. 65 points, with significant weight, against revocation of the visa cancellation decision.
COMMUNITY EXPECTATIONS
Direction no. 65 postulates a high standard in relation to the expectations of the Australian community. This is evident in the principle statement that a visa is granted as a privilege in the expectation of the holder’s future compliance with Australian law, respect for its institutions, and harmlessness to its people and community:- see cl 6.3(1). It is re-inforced by the additionally stated expectation that a visa should be refused (or cancelled) where the person has committed “serious crimes”:- see cl 6.3(2). However, that principle statement needs to be reconciled with the further statement that Australia “may afford a higher level of tolerance of criminal or other serious conduct” in relation to a person who has lived in Australia either from a very young age, or for most of their life:- see cl 6.3(5).
The imperative implicit in the use of “should” in cl 6.3(2) is not an inflexible direction that supplants the consideration, Direction no. 65 otherwise requires, of the totality of primary and other considerations. But the relevance of community expectation as an important primary consideration is patent in the content of cl 13.3. It is in the following terms:-
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
When cl 13.3 is read as a whole, and applied in a context where all relevant considerations are required to be taken into account (see cl 8(1)), it does point to the likelihood, but it does not dictate an inflexible conclusion, that community expectation will call for non-revocation. It does not elevate community expectation to the status of a determinative consideration. The concept of community expectation remains as a primary consideration, to which appropriate weight must be given. But what constitutes appropriate weight, and whether that weight is a determinative factor in the exercise of the revocation discretion, will depend on the totality of the relevant circumstances.
In the present case, the Minister acknowledged that the two references in cl 13.3 to what “may be appropriate” required a nuanced evaluation of the particular non-citizen’s circumstances. However, the Minister emphasised the allusion in cl 13.3 to the potential significance of the nature of the person’s offences in informing that nuanced assessment about community expectation. The Minister characterised Mr Hona’s offences, particularly those in September 2013, September 2015 and November 2015, as relevantly violent and certainly of such a nature as to give rise to an expectation of non-revocation. In evaluating the Minister’s submission, views may differ as to whether the November 2015 incident, when Mr Hona was clearly in an extreme state of substance intoxication, and delusionally seeking refuge from a non-existent pursuer, merit characterisation as violent. But irrespective of its precise characterisation, it involved circumstances of severe intoxication and substance abuse, the brandishing of a knife, and justifiable fear of injury to the elderly occupant of the home he entered. The picture that emerges is that of a man with a long history of drug misuse, and prone to violent reactions, particularly, but not only, when intoxicated. That picture points to an expectation of visa cancellation and non-revocation.
MR HONA’S DOMESTIC SITUATION
Apart from the general re-offending risk to which I have referred, there is no specific evidence to inform a meaningful assessment of the victim impact of Mr Hona’s conduct, other than in relation to Ms Farr. That assessment requires regard to the nature, and apparent complexity, of their relationship. Mr Hona asserts a committed seven year domestic relationship with Ms Farr. He says that it began sometime after his mother’s death in the latter part of 2011, and is a significant factor in both their lives. For her part, Ms Farr made similar assertions in her evidence supporting Mr Hona’s review application.
The reality of Mr Hona and Ms Farr’s relationship is rather more complex than the assertions of commitment they made in the present proceedings. There are reports that the relationship was fractious and short term. For example, police records of an attendance at a reported domestic violence incident at Ms Farr’s Redfern unit in April 2014 (around the time Mr Hona began his first period of imprisonment) include information that Mr Hona and Ms Farr had only lived together for about six months and that their relationship had ended in November 2013. The accuracy of that report, in so far as it suggested a total cessation of their relationship by that time, is rather contradicted by the further information in the report that (i) neighbours reported yelling and screaming as a regular occurrence at Ms Farr’s Redfern residence and, (ii) whilst she conceded there had been a fight, Ms Farr denied any assault and made no complaint about Mr Hona. The further reason for questioning the accuracy of the reported relationship termination is the fact of Ms Farr’s pregnancy at the time – as evident from the birth of their son five months later, in early September 2014. However, the actual extent of their co-habitation between November 2013 and October 2014, appears to have been limited – at least because of (i) the reports of the relationship breakdown, and (ii) Mr Hona’s incarceration between April and October 2014.
Another police report of March 2015 involved a heated argument at Ms Farr’s residence at 1:30am – apparently as a result of Mr Hona wanting to take his (then two and half year old) daughter, and Ms Farr’s refusal to allow him to enter her residence. The incident itself did not involve any physical violence, but the circumstances suggest that Ms Farr and Mr Hona were not co-habiting. The police report also noted, as had been the case with the April 2014 report, that there were numerous reports of verbal confrontation between Ms Farr and Mr Hona.
The history recorded by the psychiatrist in the 17 March 2016 report (at a time when Mr Hona had been in custody since the November 2015 incident referred to earlier) was that although Mr Hona and Ms Farr had been in a relationship for four years, Mr Hona conceded the relationship had been unstable. In a later January 2017 pre-sentence report, Mr Hona was reported as having stated that his relationship with Ms Farr had ended in August 2015 – a statement which is apparently consistent with the circumstances of Mr Hona’s assault of Ms Farr on 1 September 2015. And although Ms Farr was then said to still be supportive of him, the March 2016 report consistently referred to her as Mr Hona’s “ex-partner”.
In a November 2017 letter, Ms Farr acknowledged that their relationship had had its “ups and downs”. In his oral evidence in the current proceedings, Mr Hona conceded that there had been at least three instances (in addition to the periods of his own incarceration) where he and Ms Farr had separated, for various periods. But the accuracy of his recollection of these details is suspect. He suggested that after the November 2013 break up (recorded in the March 2015 police report), they had got back together in around April/May 2014. But that recollection has to be faulty – because Mr Hona was in custody from April to October 2014.
CHILDREN’S BEST INTERESTS
It is partly against this background of the nature of the relationship between Mr Hona and Ms Farr that it is necessary to consider the best interests of their three children. I have included in the Schedule to these reasons, the dates of birth of Mr Hona’s three children. Correlation of those dates with the periods of Mr Hona’s incarceration points to the following propositions:-
(a)Mr Hona has never lived with his youngest daughter – who is just over two years of age
(b)Mr Hona has lived with his son for no more than 12 months – that is after his release from prison in late October 2014 and ending at the time of the assault on the child’s first birthday
(c)Mr Hona has lived with his eldest daughter during two periods – for 18 months from November 2012 to April 2014 (leaving aside any question of a relationship break down in November 2013) and for about 12 months following his release from prison in October 2104 (during which period she would have progressed from about two to three years of age).
The fractious nature of the relationship between Mr Hona and Ms Farr together with his periods of incarceration, suggest that he has made little constructive tangible contribution to their family life. That suggestion is apparently corroborated by the evidence suggesting that Mr Hona was spending $300 a day on illicit drugs and alcohol at the time of the November 2015 offence (see paragraph 25 above). Both of these suggestions rather detract from Mr Hona’s claim that he has been a provider for his family.
Having said that, Mr Hona has a Level 11 high school education, a Certificate 111 Business qualification and significant experience as a construction worker. He could, given those qualifications and experience, be a material provider for the welfare and development of his three children. But whether or not he would be such a provider is problematic, given his past history and particularly his relationship history.
For her part, Ms Farr sees Mr Hona’s continued Australian presence as a necessary support to her in raising and supporting her three children. Her, largely solitarily performed, parental obligations to date have placed a considerable load on her – as was attested to by the pastor of her church. That load is one for which she has no parental support (her parents are both deceased) and will remain as a continuing burden on her, at least for the foreseeable future, if Mr Hona were to be removed to New Zealand. There is too, the consideration that each of the children has an interest in, and is likely to benefit from maintaining, Mr Hona’s physical presence. If he were to be present, as part of their lives, as a constructive paternal influence, it would likely be to their benefit.
At my encouragement, the Minister proffered a number of research articles dealing with the effect of paternal absence on childhood development. These were a “Father absence and adolescent development: a review of the literature” by East, Jackson and O’Brien, (2006) Journal of Child Health Care Vol. 10(4) 283-295; “Family Structure, Family Processes, and Adolescent Delinquency: The significance of parental absence versus parental gender” by Demuth and Brown, (2004) Journal of Research in Crime and Delinquency Vol. 41 No. 1 54-81; “The Causal Effects of Father Absence” by McLanahan, Tach and Schneider – an article published in 2013 by PubMed Central at the U.S. National Institutes of Health's National Library of Medicine. It is difficult to condense the views expressed in these articles without doing some violence to the nuances that need to be addressed in complex relationships. Nevertheless, some general propositions can be discerned. They include the following:-
(a)Father presence is an independent development variable and father absence has detrimental ramifications for both young children and adolescents.
(b)Paternal involvement tends to be protective against psychological distress and the risk of anti-social behaviour. In that respect, paternal absence appears to have a greater negative impact on social/emotional development, and to have a more pronounced effect in early childhood.
(c)Adolescents of parents in stable paired relationships tend to have greater psychological well-being than those in single parent families, and there is some evidence that the negative mental health aspects of paternal absence carry on into adulthood.
(d)Socio-economic status has a greater negative influence on children’s well-being than single parenting.
(e)At least in relation to parental influences as a restraint on anti-social behaviour, the physical presence (or absence) of either parent may be less significant than the quality of the relationship and communication between the parent and child. A child’s strong ties to at least one dutiful parent may be sufficiently protective of the child’s development progress.
(f)The ability to draw reliable conclusions from the studies, and apply them to any particular situation is difficult – because of the potential confounding causal contribution of circumstances other than paternal absence, and because of variations in the research methods employed in the many various studies.
The literature review provided by the Minister points to the likelihood that, particularly in the light of the young age of the three children, their bests interests would be best served by preserving Mr Hona’s physical presence as an active and constructively contributing member of the family unit. But as against that consideration is the potential impact of his behaviour on the children’s development if his relationship with Ms Farr continues to be characterised as “up and down” and punctuated by the verbal hostility and physical assaults that have occurred in the past. Mr Hona asserted that whatever disagreements have taken place between them have not been in the presence of the children. This is an assertion of little credibility – given not only the details of the incidents in March and September 2015, but also the reports of many instances of loud verbal altercations that resulted in police being summoned.
The additional matter to consider is that Mr Hona’s removal from Australia may not lead to either long or medium term separation from the children. Both Mr Hona and Ms Farr contemplate that if he returns to New Zealand, Ms Farr and the children would likely follow. There is no certainty of that outcome. Its eventuation would no doubt depend on the success with which Mr Hona established himself in New Zealand, and the practicalities of finance and appropriate arrangements for the children’s schooling and care in the process of any transition. But on the assumption that Mr Hona and Ms Farr are genuine in their asserted commitment to their relationship, Mr Hona’s removal would not result in the permanent separation of father and children.
The alternative assumption is that Mr Hona’s relationship with Ms Farr is unlikely to survive, and his removal to New Zealand would result in permanent separation from the children – subject only to the kinds of connections that could be fostered by social media, telephone and post. Such a separation would be less than ideal, and potentially detrimental to the development of each of the children.
Each of the children, given their tender years, is likely to have substantially the same interest in relation to Mr Hona’s continued Australian residence. Subject to one qualification, there was no evidence to provide a basis for concluding that any of them has particular needs or attachments that differentiates them from their siblings. The one qualification relates to their comparative ages, and requires recognition that only the eldest child is likely to have had any communicative period of co-habitation with Mr Hona, and a chance to form a normal kind of attachment to a physically present parent. However, there is evidence that Ms Farr, with the children, has been a regular visitor to Mr Hona not only during his period of imprisonment, but also whilst he had been in immigration detention.
Underlying any consideration of the children’s best interests is concern that Mr Hona is at significant risk of re-offending, and of continuing to be an aggressive, drug abusing partner, in his relationship with Ms Farr. That risk significantly undermines any weight that can properly be attached to the generality of the proposition that each of the children’s best interests would ordinarily be best served by revocation of the visa cancellation decision.
FAMILY TIES – AUSTRALIA AND NEW ZEALAND
Mr Hona has spent all but three and half years of his life as an Australian resident. His father lives in Bondi. He has a large number of relatives (aunts, nieces and nephews, and cousins) who live in Australia. Ms Farr and his children live here, and are likely to continue to do so, at least in the short term.
Clearly Mr Hona has a significant connection with the Australian community, by reason of his long term residence, his father’s presence, his numerous relatives, his relationship with Ms Farr and his Australian born children. All of those considerations enliven the potential appropriateness of a considerable degree of tolerance being extended in relation to his risk of re-offending: see cl 6.3(5) and cl 14.2. But there is little material, beyond the matters I have already addressed in relation to Ms Farr and the three children, to evidence the real extent of Mr Hona’s Australian connections. Mr Hona’s father attended the hearing, and it may be inferred, remains dutifully supportive of his son. Three other friends, and the father of one of his high school friends provided short letters of commendation where they referred to his general civility. But these were noticeably brief and typically conveyed no details of his community participation nor displayed any awareness of his offending and drug abuse. The one exception was a former youth service worker who referred to Mr Hona’s downward spiral as a result of drug addiction, and attested to his good behaviour when sober. But apart from that material, there was no other significant evidence of the extent of Mr Hona’s involvement in, or relevant recent contribution to the lives of his relatives or the wider community. In making those observations, I do not overlook testimonials in 2008 (relating to Mr Hona’s first offence) which attest both to his skills and competence as a skateboarder and theatre performer, and his contribution to performance workshops. Those commendations paint the picture of talented young man who was regarded as having “everything an employer could want from a specialist performer.”
At the time of his drug offences in 2009, Mr Hona was unemployed and receiving Newstart allowance. Subsequently, Mr Hona has worked in the construction industry for various periods, the precise extent of which were not detailed in the evidence. He generalised that he typically worked about 49 weeks a year, as a casual worker. That generality may be accepted, although he appears to have been unemployed immediately prior to his incarceration in 2015.

So far as the possibility of tolerance is concerned, neither cl 14.2 nor the statement of principle in cl 6.3(5) provide significant insight into the degree of tolerance that may appropriately be afforded in the case of a non-citizen who has lived in Australia since their earliest years. The structure of the Direction, and the generality of the tolerance permission, suggest that early childhood residence cannot be regarded as a determinative consideration. Similarly, the primary protective consideration and the general emphasis on low tolerance, suggest that the factors informing the appropriate degree of tolerance will include the nature and extent of the non-citizen’s criminal history, the “tolerance” apparent in his past sentencing, the risk of his re-offending, and the apprehended harm that may be associated with re-offending.
In the present case, Mr Hona’s criminal history extends over a seven year period. In the first three years, he was dealt with leniently and afforded opportunities for counselling and rehabilitation. He completed a drug rehabilitation course in 2009 (prior to his October 2009 offences). At that time, he was reported to have demonstrated a good understanding of the principles of relapse prevention and to have identified goals of maintaining fitness and regaining employment. Despite that optimistic report, within a year, he re-offended. Within two years, he offended again. On all of those occasions he was dealt with by way of a good behaviour bond or community service order. Yet by May 2013 he was arrested yet again, on charges involving both the possession and supply of illicit drugs. And of course, by that time (according to the January 2017 sentencing remarks), he had become a daily methamphetamine user. Following that, Mr Hona committed the violence related offences of September 2013 and September 2015, and then the drug-intoxicated break and enter of November 2015.
Those circumstances, with their repeated drug offences and elevation to violence, point towards the exhaustion of any appropriate tolerance of Mr Hona’s risk of re-offending. That risk is significant (moderate to high according to the January 2016 pre-sentence report) and rather emphasised by the extended non-parole period involved in his January 2017 sentencing.
In addition, there is the consideration that Mr Hona’s 1 September 2015 offence was the assault of his six month pregnant partner. In the course of his drunken anger, he kicked her in the belly, grabbed her by the throat and pushed her onto a bed whilst she was holding their one year old son. He then threatened to hurt her again unless he handed the boy over to him – notwithstanding his own intoxicated state. That neither Ms Farr, nor her son, nor the unborn child, was seriously injured was probably merely fortuitous. Given the complexity of the apparently turbulent relationship between them, and the difficulty of her own situation as a single mother who has born the parenting burden alone during Mr Hona’s incarceration and detention, Ms Farr may be willing to expose herself to the risk of future offending by Mr Hona. But it is not a risk that falls within the range of appropriate tolerance. The risk of harm is too great, and the chance of it occurring is too real. Nor is the risk of harm solely a matter to consider in relation to Ms Farr and the children – as the circumstances of Mr Hona’s offences in May 2013 and November 2015, as well as his indiscretions whilst in prison and immigration detention, tend to demonstrate.
IMPEDIMENTS TO REMOVAL
Apart from several short visits, the last of which was in about 2002, Mr Hona has not spent any significant time in New Zealand. It may reasonably be assumed that he is unfamiliar with the local support and benefit systems and, if he is removed to New Zealand, he will find the process of adjustment to a new society somewhat challenging. But he will face neither language nor physical nor intellectual disability and, with perseverance, he ought to be able to deal with the challenges involved in such a return without undue hardship.
In addition, Mr Hona acknowledged that he has nine half siblings, on his mother’s side. They all live in New Zealand. He says he has not had any contact with them. To that extent their presence cannot be counted on as demonstrating the prospect of his receiving meaningful family assistance and support. But the possibility is at least a relevant consideration. The possibility may be greater in relation to New Zealand relatives on his father’s side. His father has two brothers who still live in New Zealand, and with whom he remains on good terms. It is not unreasonable to surmise that some measure of family support may be available to Mr Hona to ease the burden of any transition to life in New Zealand.
DECISION
The primary considerations of protection and community expectation point in favour of a non-revocation outcome. The children’s best interests point in the other direction, but they do so somewhat equivocally. The equivocation relates to two considerations. The first is the likelihood that, if the relationship between Ms Farr and Mr Hona is as committed as they assert, she and the children are likely to follow him to New Zealand. The second is that if the relationship between them were to continue with similar levels of discord and violence to the episodes that have occurred in the past, the children’s individual interests are likely to be best served by Mr Hona’s removal. When the three primary considerations are assessed together their balance favours, and I think strongly favours, non-revocation.
None of the “other” relevant considerations that bear on the exercise of the non-revocation merit being accorded a weight that, with the equivocal consideration of each of the children’s best interests, countervails the impact of the protective and expectation considerations.
Accordingly, the decision under review is affirmed.

I certify that the preceding 63 (sixty -three) paragraphs are a true copy of the reasons for the decision herein of

..................................[sgd]...................................
Associate
Dated: 9 April 2018

Dates of hearing: 7-8 March 2018

Applicant: In person

Solicitors for the Respondent: Mr K Eskerie, Sparke Helmore Lawyers

Dates of hearing:	7-8 March 2018
Applicant:	In person
Solicitors for the Respondent:	Mr K Eskerie, Sparke Helmore Lawyers