JEREMY SOLOMON KINGI and MINISTER FOR IMMIGRATION AND CITIZENSHIP

[2012] AATA 431

[2012] AATA 431

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/1593
Re	JEREMY SOLOMON KINGI
APPLICANT
And	MINISTER FOR IMMIGRATION AND CITIZENSHIP
RESPONDENT

DECISION

Tribunal	Deputy President S D Hotop
Date	10 July 2012
Place	Perth

The decision under review is set aside and, in substitution therefor, it is decided that the applicant’s Class TY Subclass 444 Special Category (Temporary) visa not be cancelled under s 501(2) of the Migration Act 1958 (Cth).

..........sgd S D Hotop...................

S D Hotop, Deputy President

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – visa – cancellation – applicant a New Zealand citizen – applicant has criminal record in New Zealand from 1999 to 2004 – applicant resident in Australia from May 2005 when aged 21 years – applicant committed offences in Australia from May 2006 to August 2011 – applicant formally advised in July 2010 about possible visa cancellation if further offences – applicant does not pass character test – discretion to cancel visa – primary considerations and other relevant considerations – protection of Australian community outweighed by best interests of child and other relevant considerations – preferable decision is that visa not be cancelled – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 501(2)

Direction [no 41] - Visa refusal and cancellation under s 501

CASES

Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 390

REASONS FOR DECISION

Deputy President S D Hotop

10 July 2012 

Introduction

1. Jeremy Solomon Kingi (“the applicant”) has applied to the Tribunal for review of a decision of a delegate of the Minister for Immigration and Citizenship (“the respondent”), dated 10 April 2012, cancelling his Class TY Subclass 444 Special Category (Temporary) visa (“the visa”) under s 501(2) of the Migration Act 1958 (Cth) (“the Act”).

   The Factual Background

2. The applicant was born in October 1983 in New Zealand and he is a citizen of New Zealand.  He first arrived in Australia on 15 May 1992 and remained in Australia until 9 February 1994 when he returned to New Zealand.  He next arrived in Australia on 21 May 2005 and he has remained in Australia since that date.

3. On 6 September 2011 the applicant, following a plea of guilty, was sentenced in the District Court of Western Australia to imprisonment for 12 months for the offence of threatening to kill which was committed by him on 8 January 2010.

4. By letter dated 26 October 2011 an officer of the Department of Immigration and Citizenship (“the Department”) formally notified the applicant that the visa was to be considered for cancellation under s 501(2) of the Act and gave him the opportunity to comment. The applicant subsequently provided to the Department a written submission and supporting documents.

5. On 10 April 2012 a delegate of the respondent decided to cancel the visa under s 501(2) of the Act.

   The Relevant Legislation

6. Section 501(2) of the Act provides:

   “ The Minister may cancel a visa that has been granted to a person if:

   (a)the Minister reasonably suspects that the person does not pass the character test; and

   (b)the person does not satisfy the Minister that the person passes the character test.”

   The “character test” is defined in s 501(6) of the Act which specifies various alternative circumstances in which a person does not pass the “character test” within the meaning of that section. In the present case, the relevant circumstance is that specified in para (a) of s 501(6), namely, “the person has a substantial criminal record (as defined by subsection (7))”. Section 501(7) specifies five alternative circumstances in which, for the purposes of the “character test”, a person has a “substantial criminal record”. In the present case, a relevant circumstance is that specified in para (c) of s 501(7), namely, “the person has been sentenced to a term of imprisonment of 12 months or more”.

   The Ministerial Direction

7. 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

8. The evidence before the Tribunal comprised:

   ·the “G Documents” (G1–G33, pp 1−138) lodged by the respondent on 14 May 2012 (Exhibit R1);

   ·the Respondent’s Supplementary Documents (pp 1–60) filed on 13 June 2012 (Exhibit R2);

   ·Exhibits A1–A7 tendered by the applicant;

   ·Exhibits R3–R5 tendered by the respondent; and

   ·the oral evidence of the applicant, Indiana Forgus, and Seraya Amber Brown.

   The Applicant’s Criminal History

   New Zealand

9. The applicant’s criminal history in New Zealand, as recorded in a New Zealand Police document tendered in evidence by the respondent (Exhibit R3), is as follows (in chronological order):

Court	Result Date	Offence Date	Offence Description	Result
Rotorua YC	27-Sep-1999	03/08/1999	Burgles(Oth Prop) ($500-$5000) By Day	Case Proved and Sentenced (YC): To Come Up For Sentence If Called Upon – 27/09/1999 – 6 Months
Rotorua DC	05-Apr-2001	03/11/2000	Theft Ex Car (Over $500)	Convicted and Sentenced : Non Residential Periodic Detention – 02/08/2001 – 2 Months / Reparation – $3,286.00 / Additional Information – Claim No 00771480
Rotorua DC	05-Apr-2001	05/11/20000	Theft Property (Under $500)	Convicted and Sentenced : To Come Up For Sentence If Called Upon – 05/04/2001 – 1 Year
Rotorua DC	05-Apr-2001	05/11/2000	Unlawful Takes Motor Vehicle Etc	Convicted and Sentenced : To Come Up For Sentence If Called Upon – 05/04/2001 – 1 Year
Rotorua DC	05-Apr-2001	06/11/2000	Burgles (Oth Prop)($500 - $5000) By Ngt	Convicted and Sentenced : To Come Up For Sentence If Called Upon – 05/04/2001 – 1 Year
Rotorua DC	20-Mar-2003	16/03/2003	Common Assault (Manually)	Convicted and Sentenced : Reparation - $200.00 / Fine - $200
Rotorua DC	20-Mar-2003	16/03/2003	Wilful Damage	Convicted and Sentenced : Reparation - $120.00
Rotorua DC	30-Apr-2003	19/04/2003	Offensive Behaviour S4 S/Offences Act	Convicted and Sentenced : Fine - $200.00
Rotorua DC	30-Apr-2003	19/04/2003	Resist Police	Convicted and Discharged
Rotorua DC	16-Sep-2003	18/07/2003	Receives Property (Over $5000)	Convicted and Sentenced : Community Work (SA) – 16/09/2003 – 80 Hours
Rotorua DC	23-Sep-2003	30/08/2003	Disorderly Behaviour S4 S/Offences Act	Convicted and Sentenced : Fine - $250.00, Court Costs - $130.00
Rotorua DC	19-Jan-2004	22/09/2003	Breach Of Community Work	Convicted and Discharged : Final Warning
Rotorua DC	12-Jul-2004	14/04/2004	Breach of Community Work	Convicted and Sentenced : Imprisonment (Concurrent) – 12/07/2004 – 14 days
Rotorua DC	12-Jul-2004	05/06/2004	Receives Property ($500 - $1000)	Convicted and Sentenced : Imprisonment (Concurrent) – 12/07/2004 – 14 days

Traffic Conviction History

Rotorua DC	05-Apr-2001	05/11/2000	Drove A Motor Vehicle In A Dangerous Manner	Convicted and Sentenced : Disqualification From Driving – 05/04/2001 – 6 Months
Rotorua DC	05-Apr-2001	05/11/2000	Failed To Stop When Followed By Red/Blue Flashing Lights	Convicted and Discharged

Australia

1. The applicant’s criminal history in Australia, as recorded in a Western Australia Police document (Exhibit R2, pp 21–22), is as follows (in chronological order):

Court	Result Date	Offence (Date)	Result
Fremantle MC	27-9-07	Assault Occasioning Bodily Harm (10-5-06)	Fine : $1200
Rockingham MC	21-2-08	No Driver’s Licence (9-9-06)	Fine : $150
Perth MC	12-7-08	Breach of Police Order (12-7-08)	Fine : $200
Rockingham MC	30-7-09	Aggravated Assault Occasioning Bodily Harm (22-5-09)	12 months’ imprisonment (concurrent)
Give False Personal Details to Police (22-5-09)	1 month imprisonment (concurrent)
Rockingham MC	8-10-10	Fail to Comply With Request to Give Police Personal Details (30-7-10)	Fine : $300
Breach of Protective Bail Conditions (10 counts)	Fine : $1500 (global)
Bunbury DC	6-9-11	Threaten to Kill (8-1-10)	12 months’ imprisonment (cumulative from 3-6-11)
Rockingham MC	7-9-11	Breach of Protective Bail Conditions (8-10-10)	3 months’ imprisonment (concurrent)
Breach of Violence Restraining Order (1-4-11)	3 months’ imprisonment (concurrent)
Breach of Violence Restraining Order (1-4-11)	3 months’ imprisonment (concurrent)
Breach of Violence Restraining Order (22-6-11)	3 months’ imprisonment (concurrent)
Breach of Violence Restraining Order (2-7-11)	3 months’ imprisonment (concurrent)
Breach of Violence Restraining Order (31-7-11)	3 months’ imprisonment (concurrent)
Breach of Violence Restraining Order (3-8-11)	3 months’ imprisonment (concurrent)

The Sentencing Remarks of Magistrate Gluestein on 30 July 2009

1. When sentencing the applicant for the offences of aggravated assault occasioning bodily harm and giving false personal details to the police, which were committed by him on 22 May 2009, Magistrate Gluestein said:

   “ … There are two charges before me levelled against Jeremy Solomon Kingi to which he’s pleaded guilty. They are aggravated assault, under section 317 of the Criminal Code occurring on 22 May 2009. The facts have been read out into the transcript by the prosecution. On the same date there’s a second charge of giving false personal details to police when he was ultimately apprehended following the assault.

   The first offence comes under section 317 of the Criminal Code. The second under the Criminal Investigation Identifying People Act 2002. Both offences carry with it the possibility of gaol terms and in particular the assault causing bodily harm, a gaol term and circumstances of aggravation of up to three years. I’m required by section 6 of the Sentencing Act to impose sentences that are commensurate with the seriousness of the offences and under subsection (2) I’m to take into account not simply the penalties provided by statute, but as well the circumstances of the commission of the offence, any aggravating factors and any mitigating factors.

   I note from the statement of material facts read out in respect to the aggravated assault occasioning bodily harm that firstly, the assault was an unprovoked one.  Secondly, there was an attempt to strangle the victim.  Thirdly, the victim was struck nine times with a closed fist to her face.  Fourthly, she required hospital treatment and had swelling and bruising to her face and eye and soreness to her neck as a result of the assaults.

   In terms of aggravating factors, I take into account that whilst the attack on Ms H… was brief, it was a sustained and a vicious attack.  In respect to mitigating factors, I’m at a loss to find many mitigating factors, save for the helpful report that I’ve received and the background to this gentleman set out in the pre-sentence report prepared by community justice or corrective services.  I do, in terms of sentencing take into account as I must do the pleas of guilty given by Mr Kingi to both charges.

   In respect to some general observations, I note from his record that the record reflects recent criminal behaviour and relevant in terms of a breach of a violence restraining order or a breach under the Violence Restraining Orders Act, should I say, being a police order and significantly an assault occasioning bodily harm conviction in September 2007.  I’ve had, as I said the benefit of a detailed written pre-sentence report which confirms this recent history of violence and indicates that there have been as well violence restraining orders taken out against Mr Kingi in recent times from a former partner, from his mother and from the present or possibly the estranged present partner of Mr Kingi.

   In terms of sentencing of course I need to acknowledge under the Sentencing Act that a term of imprisonment is to be imposed as a penalty of last resort and that a court should not impose a term of imprisonment unless the seriousness of the offences is such that only imprisonment can be justified or the protection of the community requires it.

   What looms large in respect to sentencing for Jeremy Kingi is in my view the very seriousness of the – particularly the assault offence, the element of persistence in that there were not only the attempt at strangulation but nine fist blows to the face of his then 21-year-old partner.  I take into account as has been put to me by the prosecution, there is a strong need for general deterrence in such an assault as well as the need to demonstrate the courts and communities condemnation of such offending.

   The present case requires not only fact – my taking into account general deterrence matters but also personal deterrence for Mr Kingi and the conclusion I’ve reached with the benefit of the pre-sentence report and also taking into account the submissions from prosecution is that there ought to be in respect to both charges immediate terms of imprisonment.  In respect to the assault, the appropriate term is 16 months which I reduce by four months to take into account the guilty plea, arriving at a term of imprisonment of 12 months.

   In respect to the giving false personal details, there will be a term of imprisonment of one month which is to be served concurrently with the effective 12 months for the assault.  Thank you.”  (Exhibit R, G10, pp 65–66)

   The Sentencing Remarks of Macknay DCJ on 6 September 2011

2. When sentencing the applicant for the offence of threatening to kill, which was committed by him on 8 January 2010, Judge Macknay said:

   “ You can remain seated, Mr Kingi.  You’ve been convicted on your own plea of one count that on 8 January last year at Bunbury you made a threat to unlawfully kill S… E… H…  In brief, you were a sentenced prisoner at the Bunbury Regional Hospital (sic).  You had a telephone conversation with the complainant, in the course of which you said to her:

   You’re dead when I get out.  I’m going to slit your bloody throat.

   The relevant circumstances include that a little later you again called the complainant and said:

   You want to hope I don’t get out in a couple of weeks because I’m going to make you fucking scream, cunt.

   And later in the day you told the complainant that you’d gone to see the doctors at the prison and told them:

   All I keep thinking about is how I’m going to kill my girlfriend when I get out.

   And you also said:

   I have a funny feeling that I’m going to do something stupid the day I get out.

   At the time you were serving a sentence of 12 months’ imprisonment for the aggravated assault occasioning bodily harm of the complainant, who had been your partner and was and is the mother of your young child.

   You’re 27 years of age.  You do have some prior convictions, including a conviction in 2007 for assault occasioning bodily harm; breach of a  police order again involving this particular relationship on 12 July ’08; and the conviction of 30 July 2009 for aggravated assault occasioning bodily harm, when you punched the complainant, being the same complainant, as I’ve said, nine times to the face, causing injuries; and on 8 October last year, you were convicted of breach of protective bail conditions by number 10 and given a global fine of $1,500.

   I’ve had the benefit of a pre-sentence report.  I have heard from your counsel, and I have a number of character references, all of which I have read.  It’s stated in the pre-sentence report that you acknowledge that you committed the present offence as you wanted to scare and upset the complainant so she could feel how you felt.

   You advised the author of the pre-sentence report that the relationship with the complainant was problematic due to ongoing issues related to jealousy, infidelity, and trust issues; that in the course of the relationship there were regular, heated, verbal altercations about those issues, which often led to you perpetrating physical abuse in the form of punching, pushing, and choking the complainant, as well as engaging in emotional abuse, such as put-downs and name-calling; and that you engaged in threatening behaviours in an attempt to scare, intimidate and control the complainant’s behaviour.

   You also said that you attributed violent offending to the complainant and put significant blame on her in relation to your incarceration.  It is the case that the pre-sentence report states that you resumed the relationship, notwithstanding the existence of a violent restraining order on your release.  You refer to the complainant as your downfall.  You say that you consider the relationship had ceased a long time ago.  You intend to seek formal access via the Family Court.  I think, it appears from what your counsel said, that’s still before the Family Court.

   And as your counsel has said, the pre-sentence report details your early history.  Your parents separated prior to your birth, and you were raised by your father and step-mother.  It would seem that your step-mother did not treat you well, that your father physically assaulted you on a reasonably regular basis, and that you were exposed throughout your childhood to violent behaviours in the home, and that became normalised.  You then came to this country about seven years ago and established a relationship with your mother, and you also have a sister here, with whom you have a close relationship.

   You then entered into the relationship with the complainant at the age of 21.  You have a good employment record.  You commenced an automotive mechanic apprenticeship on your arrival here.  You completed that in 2008, and in 2009 you commenced fly-in, fly-out employment as an underground driller in a mine site north east of Perth.  And prior to recently being remanded in custody, you were working as a mechanic at a mine site out of Newman, and again working on a fly-in, fly-out basis there.

   It’s said by the author of the pre-sentence report that you present with high treatment needs, that you have acknowledged the need to address those offending behaviours, but it would seem perhaps that you have historically prioritised your employment over that need.  It’s said that you are now prepared to engage in counselling of that kind.

   The various authors of the references which I have before me, being members of your family and also friends, all speak well of you.  I have letters from your mother, who of course speaks well of you.  As I’ve said to your counsel, it is, however, of concern, in my view, that there seems to be a pervasive attitude that the complainant is somehow to blame for your offending behaviour.  And I have a letter from Force Equipment dated 27 July, which confirms that you were then working at the Christmas Creek mine site.

   Now, a reference was made by your counsel in the brief to a subsequent conversation which counsel considered was of substantial relevance, Mr Kingi.  I should say that, in my view, it is not infrequent that a victim of domestic violence will speak in a placatory way, and that that of course is conditioned by the history of violence.  And if the suggestion is that one ought regard your offending as being of small consequence because of that subsequent phone call, then I would reject that proposition, and in my view, the subsequent phone call is of extremely limited relevance in relation to the sentencing exercise today.

   You have pleaded guilty.  That was only the day before trial.  It is said that you did not have stable arrangements for representation as a result of being on Legal Aid, and then going to employment.  It’s not suggested by the State that there is some other reason for the late plea, and I will accept the plea of guilty as showing a desire to cooperate in the system as an acknowledgement of remorse in relation to the matter, and will give you credit for that.

   I have had the benefit of the victim impact statement, from which it appears that the complainant was affected by your threat, as you intended, of course.  I give you credit for your excellent work record.  You are, of course, still a comparatively young man.  It might be that when this relationship is behind you that you will be at significantly less risk of offending.

   However, as I have already indicated, of particular concern in this matter is an apparent ongoing attitude to the complainant as being the cause, to a significant extent, of your troubles, and I look at that apparent attitude against a backdrop of you making a threat to kill the complainant, intending to frighten her in circumstances where you were then serving a sentence of imprisonment for seriously assaulting her, that being set against a backdrop of, on your own admission, an abusive relationship.

   In my view, person (sic) deterrents (sic) as well as general deterrence and retribution are relevant sentencing aims here.  As I understood what your counsel said on your behalf, it is perhaps conceded, not expressly but conceded, that a sentence of imprisonment would be appropriate, but a submission is made that that sentence of imprisonment ought be suspended.

   Plainly, a sentence of imprisonment to be immediately served is the sentence of last resort.  The Sentencing Act provides the mechanism that is to be used to consider what an appropriate sentence is, and it is only when a court is of the view that the circumstances of the offence is such that only a sentence of imprisonment to be immediately served can be justified is the court permitted to impose such a sentence.

   And after taking into account, Mr Kingi, the matters personal to you, including your plea of guilty, the positive aspects of your antecedents, which I have referred to or which counsel spoke about on your behalf or which appear from the report, and the references which I have before me, after taking into account the factual circumstances of the offending set in the circumstances of this relationship and your previous offending against this particular complainant, simply is one of those circumstances you’re not to be punished for past offending, then I have come to the view that only a sentence of immediate imprisonment can be justified.

   I take into account the matters personal to you in fixing the length of that sentence and impose a sentence of 12 months’ imprisonment.  There is nothing said against parole eligibility, and I direct that there be parole eligibility. …”  (Exhibit R1, G18, pp 94–97)

   The Applicant’s Evidence

1. The applicant confirmed that he had written a letter to the Department in response to the notice of intention to consider cancellation of the visa, and that its contents are true and correct.  That letter (which is undated but which was received by the Department on 27 January 2012) states as follows:

   “ My name is Jeremy Solomon Kingi and I am writing to you (the Department of Immigration) regarding the circumstances behind my current 12 month incarceration on the charges of, 1 x Threat to Kill and 6 x Breach of Protective Bail Conditions, in the hope you will take these into consideration when reviewing my case.

   While being held in Bunbury Regional Prison I received a visit on the 08/01/2010 from a mutual friend of myself, and my partner S…, who informed me that S… was cheating on me with someone close to the both of us.  At the time I was suffering emotionally due to being separated from S… and our 4 year old daughter N…, so when I learnt of S…’s cheating I was deeply hurt and embarrassed and in the heat of the moment called her and threatened her.  This is what lead to my threat to kill charge, even though prison phone recordings show that until that day I had never done that before and was totally out of character for me.

   When I was released on bail from Bunbury Prison part of my bail conditions were to stay away from S… which I agreed with and also did.  Being a hard worker I was able to get my old job back at a mine near Newman, doing a fly in fly out – 2 on 1 off roster, as a heavy duty diesel mechanic (fitter).  For 2 months everything was going well, I was approved for a bank loan so I could buy my own house and I was also able to renew paying my daughter’s child support.

   One day out of the blue I received a phone call at work from S…, who I was shocked to hear from.  She told me her and N… missed me, and wanted to know what day I was flying back to Perth so that I could come see them and stay over for a few nights.  Even though we both knew this was a breach of my bail conditions I agreed to come over as I was still in love with her and missed them both a lot.  This is when our contact began again.  Over a 6 month period we took turns staying at each others houses and at times I was also having my daughter N… stay at my house for up to a week at a time.  We kept our relationship secret from my family as we knew they would not approve of me breaching the bail conditions, and I didn’t want to disappoint them.  Everything was going fine I thought until all of a sudden S… stopped coming over which meant I didn’t get to see my daughter much anymore.  When I finally did get the chance to have N… stay over for a night she let it slip that S… was having other men at the house for ‘sleep overs’.  I spoke to S… and asked her why she didn’t tell me that herself, knowing full well how much of a little chatterbox N… is, and that N… would eventually end up telling me.  I got no answer from S… and it was at that point all contact with my daughter stopped.  I called and messaged S… to ask to see N… and to also find out why she was playing these mind games with me by allowing me to see my daughter for the past 6 months then suddenly stopping contact.  This lead to S… breaching me on my bail conditions.

   All I’ve ever wanted was a family of my own and a good job, which I have, so I can provide for that family.  I now want to get on with my life for myself and for my daughter.  As soon as I’m released I will restart work so I can once again provide financial support to my family and to my daughter, who I am proud to say has never had to want for anything.  I have initiated family mediation proceedings, and along with N…’s grandparents (my parents), have also put in motion court proceedings for contact with N… through them under the new grandparents rights laws.  This means I will be able to see my daughter without having to have contact with my ex-partner, preventing further chance of a breach and a return to jail.

   I know my background is a little colourful but I am a genuine person, a hard worker, a good provider and a top bloke to boot.  I can’t change the things that I have done in the past.  I can only say I’m sorry for all of my wrongdoing and ask that you allow me the chance to pick myself up and to make up for my mistakes, which I know I will be able to do with the enormous amount of family support I have available to me.”  (Exhibit R1, G22, pp 110–112)

2. The applicant confirmed that he had also written a letter, dated 21 May 2012, to the Tribunal for the purpose of the present proceeding, and that its contents are true and correct.  That letter (which is undated by which was received by the Department on 27 January 2012) states as follows:

   “ My name is Jeremy Solomon Kingi, and I am writing to you, the Administrative Appeals Tribunal with regards to the following offences:

   1.2009: Twelve (12) month sentence I received and served in 2009 for OBH (Occasioning Bodily Harm) towards my former partner

   2.2011: Twelve (12) month sentence I received and served in 2011 for Threat to Harm towards my former partner

   3.Various: Breaches of VRO and Protective Bail Conditions

   I do understand the seriousness of my criminal history and in no way am I trying to condone my actions, but to address the mitigating facts, which lead me to this point.  My criminal history is mostly involved in a relationship I had with my former partner, S… H…

   Firstly, I would like to discuss my violent outburst that took place in 22 May 2009, of the offence of OBH (Occasioning Bodily Harm) towards S…, my partner at the time.  I believe my violent actions were out of character as I have never approached a female in such a way before.  I also believe that my alcohol consumption played a very big part in my behaviour on the night the incident occurred.  I also realise my emotions and anger got the better of me and resulted in me behaving the way I did, which I realise is no excuse.

   Once held in incarceration, our relationship continued for almost six months; this included contact with S… and our child N…, who is four (4) years of age.  She was very supportive, and gave me much support and help throughout my incarceration.

   On 8 January 2010, I received a contact visit from a mutual friend of S… and I who informed me that S… was sexually involved with a close friend of myself and my family.  It was this devastating emotional blow and separation from S… and N… that lead me to threaten harm in the heat of the moment on the Prison telephone system.

   After this threat occurred, phone contact and visits with S… and N… continued, as they also did whilst I was on bail awaiting proceedings on the abovementioned threat.  I acknowledge that my criminal record states that there were numerous breaches of the VRO and Protective Bail Conditions.  I wish to comment that both S… and I knew that (sic) the time that I was breaching my bail conditions by repeatedly breaching judicial Orders.

   I can only honestly say that I was blinded by my feelings and love for my little girl N… and it was mutual contact between S… and I in the best interests of our child.  N… had spent up to a week in my care on my rostered week off returning back from the mining industry where I was working, and at not one single moment was I a threat towards S…, N…, or the Australian community.

   Contact between myself and S… became frustrating when she terminated all contact between N… and I.  It was this event that lead to my breaches of the VRO and Protective Bail Conditions.  My record states that contact between S… and I consisted of over 1,000 phone calls and in excess of 1,000 SMS text messages.  They clearly denote that S… initiated contact, but yet she is not held to account for her own actions.

   It is very difficult for me to explain just how hard it has been for me whilst I served my prison sentences in 2009 and 2011.  I have given it my very best effort to address my offending behaviour.  I have repeatedly applied during both terms of custody to participate in every available violence offending program the Prison system has to offer, but due to a pending decision on my minimum rating, coupled with the very high demand for these programmes I have been unsuccessful in even having a small opportunity to participate in these programs.  Also whilst incarcerated, I have applied to and completed family and children oriented programmes, such as Good Beginnings.  I also have commendation letters from these programs to support me in the Family Court hearings I am currently going through as well.

   I realise my criminal history notes that I am a very high risk of re-offending, and giving weight to the facts, I have had time to heal mentally and emotionally from my own actions and history.

   I believe I am on the right path to move forward in my life.  I am in a relationship with my new partner Seraya Brown, who I have known for almost four years now.  We have a beautiful child as well, A…  I met Seraya shortly after my relationship with S… ended so abruptly.  We have been in a very close and loving relationship for the past 14 months.

   The reason I did not mention my previous relationship was that I felt Seraya and A… deserved better than to be part of my broken down history I shared with S…  Seraya has been very supporting of me and has also been by me (sic) side, helping me through Family Court to gain access to my child N…

   Both Seraya and I sincerely hope I have a chance to rehabilitate and move on, to once more be part of the community, to have better opportunities, and to enable me to give back to society.

   To this end, I have recently completed my Trade Certificate in Heavy Duty Mechanics.  I do have employment in the mining industry here in WA upon release.  I also have very strong support from friends, family, and both parents, who also reside in Perth.

   Most of all, a far bigger responsibility as a parent towards N…, A… and R (my son from my first relationship) who I fly to Perth twice a year to spend time with his sisters, is by far the major challenge that I face, but one I sincerely look forward to.

   If I were to be deported, this would make the situation for myself, my partner, and my children untenable, both emotionally and financially.

   I am finally on the path to salvation.  I am looking forward to being able to spend time with my daughter N… and to avoid re-offending once more.  I do hope one day that S… and I can be responsible parents towards N…, even if our personal relationship is irrevocably concluded.

   I wish to emphasise once more that I take full responsibility for my actions towards S….  I am sincerely remorseful of my deplorable behaviour.  If I knew what the consequences of my actions were going to be, I would give absolutely anything to take those actions back.  I know I cannot go back and change history, but I am devastated by the potential consequences to my partner and children, who are innocent in all this, and whom I love with all my heart.

   I have well and truly paid the price for my offending behaviour.  Serving a prison sentence in (sic) a harsh punishment in itself, let alone being deported from the country I call home.  I can honestly say that I hit rock-bottom, and I have definitely learnt my lesson.  I have too many responsibilities and commitments to even think of re-offending.  I have a new direction in my life, and for the first time since I can remember, I finally feel like I have something to live for.

   I am a man who will give anything to have the chance to love and support my partner and three children here in Australia.

   I plead with you to give me a chance to prove that I am a worthy member of society who can make his family, friends and community proud.

   …”  (original emphasis) (Exhibit A1)

3. In cross-examination the applicant gave evidence to the following effect:

   ·as regards his criminal history in New Zealand, the common assault offence which he committed on 16 march 2003 involved his throwing a bottle during a gang-related scuffle outside a nightclub;

   ·the only time he spent in prison in New Zealand was the 14 days’ imprisonment he served in July 2004 for the offence of receiving property;

   ·as regards his criminal history in Australia, the offence of assault occasioning bodily harm which he committed on 10 May 2006 was an incident of “road rage” in which he punched another driver in the face through the car window because the other driver had cut him off in traffic causing him to drive into a wall;

   ·the offence of aggravated assault occasioning bodily harm, which he committed against his former partner on 22 May 2009, occurred when he hit her during a “verbal disagreement” outside a nightclub because “she was not being a faithful partner” and “wanted to go home with another person”;

   ·the threats he made towards his former partner on 8 January 2010 were made by him in a “heat of the moment outburst”;

   ·he has three children, namely, a 6-year-old son (“R”) who lives in New Zealand, a 4-year-old daughter (“N”) and a 2-year-old daughter (“A”) who live in Perth;

   ·before he was incarcerated, he would see his son twice per year (when his son visited him from New Zealand), and he has kept in frequent telephone contact with him;

   ·his 4-year-old daughter lives with her mother “S”, his former partner; he last saw her about 1 year ago and he does not know her address; S has obtained a Restraining Order preventing him from communicating with his daughter but he has applied to the Family Court in order to have regular contact with her in the future;

   ·his 2-year-old daughter lives with her mother, Seraya Brown, his present partner; he has never lived with Ms Brown and his daughter as a family unit but wishes to do so in the future; if he is returned to New Zealand, he hopes that they will accompany him;

   ·when he is released he will live with his mother until he gets his own place, and Ms Brown and their daughter will live with her parents until then.

   The Evidence of Indiana Forgus

4. Indiana Forgus, the applicant’s mother, confirmed that she is an Australian citizen.  She also confirmed that she had made a statutory declaration on 19 June 2012 and that its contents are true and correct.  That statutory declaration states as follows:

   “1.      I make this Statutory Declaration in support of an appeal to the Administrative Appeals Tribunal by Jeremy Solomon Kingi (‘Jeremy’).

   Jeremy’s First Arrival in Australia

   2.I migrated to Australia from New Zealand with my only son, Jeremy in May 1991 (sic) to embark on a change of lifestyle after I separated from Jeremy’s father, Te Taero Kingi.  Jeremy had trouble settling into his new lifestyle as he missed his father immensely.  At the time, his father was residing in New Zealand with his de facto partner.  I reluctantly sent Jeremy back to New Zealand to reside with his father in January 1993 (sic).  I was devastated at the time but I knew that it was the right decision to make at the time.

   3.I stayed in regular contact with Jeremy after he left.  He was to return to Australia in 1999 after I learned that he was having a rough time during his teenage years, but he did not get on the plane and I was informed by his father that he had changed his mind.

   4.I married my 2^nd husband Leon Gregory Forgus in Australia 24^th April 2004.  …

   Jeremy’s Second Arrival in Australia

   5.Jeremy returned to Perth in 2005 with his then girlfriend, Piriote Turnbull (‘Piriote’).  Jeremy chose to return to Perth because he wanted to complete a qualification in Automotive Mechanics.  Watching Jeremy through this stage in his life was a very proud moment for me as I witnessed and watched my son put his mind to something he believed in and succeeded.  He passed his trade in December 2008.  When it came to his commitment in obtaining his trade certificate, I am very proud of his relentless efforts to succeed.

   6.After Jeremy’s return to Australia, the first year was the happiest time for all of us as he was dedicated to Piriote and their plans for the future.  Piriote was pregnant at the time and they were excited about the family that they were about to have. He was extremely happy with his life, his apprenticeship and the Australian lifestyle.  They were even talking about buying a house during the property boom.

   Jeremy’s Relationship with S… H…

   7.R…, Jeremy’s first child, was born [in] December 2005.  Jeremy ended his relationship with Piriote approximately nine months after R… was born to enter into a relationship with my then secretary, S… H…  Piriote and Jeremy remained on good terms and she returned to New Zealand.

   8.My relationship with Jeremy was tense when he started his relationship with S… because I was upset that he had ended such a promising relationship.  I had worked with Ms S… H… for two years so I knew about S…’s history with men and the volatile relationship that she had with her own mother.

   9.Jeremy’s second child, N… was born [in] November 2007.  Jeremy had a very strong connection with N… but his relationship with S… was always turbulent.  During the course of their relationship, they both had affairs.  S…’s affair led to another pregnancy which she terminated to reunite with Jeremy.  Jeremy’s affair was with his current partner, Seraya Amber Brown.  He ended the relationship to return to S…  Seraya was four weeks pregnant at the time that he ended the relationship.  Her daughter [A] (Jeremy’s third child) was born [in] July 2009.

   10.It was difficult for me to watch Jeremy’s relationship with S… as I thought that they both brought out the worst in each other.  S…’s mother … and I frequently tried to persuade them to end the often turbulent relationship as it was very destructive, however we both were faced with a lot of hostility by S… and Jeremy whenever we tried to interfere.

   11.As a result of the hostility that S… and Jeremy had towards me, and following a mild stroke due to stress I took out Violence Restraining Orders against both of them on 12 December 2008 (granted Jan 2009) after I continually received abusive messages (on my mobile phone, work email account and on social networking sites).  I decided that their relationship was their problem and that I would not stress myself out by interfering.

   Jeremy’s Assault Against S…

   12.On 22 May 2009 (the night that the assault against S… occurred), Jeremy and S… drove to Perth from their home in Moora (2 hrs out of Perth).  They had decided to go on a night out and they arranged for me and my husband, Leon Forgus to babysit N…, with the intention of staying in our home for the weekend.  They were already intoxicated when they arrived in town to drop N… off to us, and they continued to consume drinks at my house before heading out.  It was within two hours of this that the offence occurred in Perth.

   13.On learning about the assault, my husband stayed home to care for N… (their daughter) and I drove from Rockingham to Royal Perth Hospital to be with S…, and was met there by her mother and partner.

   14.I commenced visitation with my son Jeremy from 2010 and often took A…, N.. and R… to visit with him …

   15.I was contacted by S… via text message in September 2009 and advised that if I did not withdraw the VRO against her, I could not see N…   At this point I hadn’t seen N… in 6 months and I missed her a lot so I withdrew the VRO against S… on 24 September 2009.

   Jeremy’s Release From Prison

   16.Jeremy was released from prison on 29 July 2010, after he had received a formal warning from the Department of Immigration and Citizenship regarding the possible cancellation of his visa.  My whole family warned Jeremy to stay away from S… at this point because we knew that it could only bring more trouble.  Jeremy could not control his temper around her and I did not want him to get into any more trouble with the law.

   17.Jeremy was again arrested on 2 August 2010 for contacting S… and asking to see N…  I note in relation to this that a text message was received by me from S… H… advising that she was arranging to have the VRO lifted in relation to N…, and pass this information onto Jeremy (Attached is the txt message).  He was released again on protective bail on 8 October 2010.  This time, my family thought that he would definitely stay away from S…  Though I knew it was difficult for him to be separated from N…, especially with S… insisting she needed Jeremy’s help to babysit while she worked.  I pleaded with Jeremy to seek access to her formally instead of leaving everything in S…’s hands.  He recommenced employment with his old employer on a fly in and fly out basis and was also enrolled in counselling at the ‘Building Better Relationships’ Counselling Service in Rockingham.  He attended only a few times but ceased as work saw him away more times than in town.

   18.It was only in 2010 that I found out that Jeremy and S… had been in contact each (sic) other despite the restrictions on Jeremy’s contact with S…  I was shocked and immediately confronted them both of (sic) the VRO restrictions, they both confronted me and basically told me to butt out of their business, stating they will do whatever is in the best interest for N… with S… still insisting she had lifted the VRO on N…  This later proved to be fabricated.

   19.Jeremy and Seraya entered into their relationship together in 2008, unbeknown to me as I was in Thailand, my reaction to this was neither here or there as I knew S… would always involve herself in Jeremy’s life.

   20.Jeremy was again arrested for breaching his protective bail conditions and the violence restraining orders in place against S… and N… on 12 August 2011.

   21. After Jeremy’s conviction for the above offences and for ‘Threat to Kill’, Seraya visited Jeremy once I believe, and I visited him a few times when permittable (sic) due to work.  I often took the kids to see him.

   Jeremy’s Relationship with Seraya

   22.After having witnessed the extremely turbulent relationship between Jeremy and S..., it has been wonderful to see the relationship between Jeremy and Seraya develop again.  They are now engaged and intend to spend the rest of their lives together.  I know that Seraya wants A… to grow up with her father in her life.

   23.If Jeremy had to relocate to New Zealand, I believe that Seraya and A… would go with him.  They would have to leave their family here and start their lives in New Zealand with no family support.  It would be extremely difficult for Seraya to adjust as her entire family resides in Australia and it would be upsetting for A… to be removed from such a loving family environment.  A… has always lived inside her maternal grand-parents’ home, and Seraya has never been to New Zealand and I believe the strain of relocating to a strange country for her would definitely take its toll on her and A…

   24.It would also be difficult for Jeremy to successfully complete the treatment that he needs without family support.  He would also have no access to N… which he would find extremely difficult as he is devoted to her.  Piriote and her partner have been making arrangements to relocate to Australia with R…, currently they are in Gold Coast staying with her partner’s brother until the 29^th June 2012.  It has been mentioned that Piriote partner (sic) can arrange accommodation and work he will definitely relocate to Gold Coast.  They have advised me that they can only relocate to Australia if employment and housing is readily available.

   25.I understand that Jeremy has committed violence (sic) crimes in the past but I do not believe that these offences reflect the man that he is or the man that he has the potential to be.  He has an outstanding employment record in Australia and I believe that his skills are of benefit to Australia.  I am not defending Jeremy’s actions against S…  I know that the offences were violent and should never have been perpetrated against S…  However, I also know that these offences were the result of an extremely dysfunctional relationship that caused pain and hurt on both sides.  I have discussed the need for Jeremy to obtain treatment in regards to his previous offences and we have both decided that it is of utmost importance that Jeremy enter into the necessary programs if he is allowed to stay in Australia.  He has difficulty communicating his feelings and I believe that if he gets the treatment that he needs, he will not present any risk to the Australian community.  He could not access any of these programs when he was in prison.

   …”(Exhibit A2)

1. In her oral evidence Ms Forgus said that:

   ·the applicant could live with her “temporarily” when he is released from detention;

   ·she would provide family support and advice to him;

   ·she has financial resources and would be prepared to go into business with him utilising his skills as a motor mechanic;

   ·the applicant needs anger management counselling and she would insist that he obtain it.

   The Evidence of Seraya Amber Brown

2. Seraya Amber Brown confirmed that she had made a statutory declaration on 19 June 2012 and that its contents are true and correct.  That statutory declaration states as follows:

   “1.      I make this Statutory Declaration in support of an appeal to the Administrative Appeals Tribunal by Jeremy Kingi (‘Jeremy’).

   My Relationship with Jeremy

   2.I am an Australian citizen.

   3.I met Jeremy in August 2008 at Rockingham Foreshore Beach.

   4.After our first meeting, Jeremy and I dated for 3 months.  There was never any physical violence in our relationship and Jeremy never threatened me or made me feel afraid of him.

   5.Jeremy ended our relationship in December 2008 as he wanted to get back together with his former partner, S… H…  We tried to remain friends but this was impossible because of S…  I was constantly harassed and verbally abused by S…  She threatened to kill me and my unborn child outside a nightclub.  She told me to stay away from Jeremy and not make contact with him via mobile or any social websites.

   6.I discovered that I was pregnant in October 2008.  I knew that Jeremy was the father and informed him right away.  He believed me at the time, however after he reconciled with S… H… they both insisted on a paternity test be conducted, which was done in 2009 when A… was 6 weeks old.  After it was confirmed that Jeremy was the father, he accepted it after a family court hearing.

   7.On December 2009, I was at Liquids nightclub with a friend which (sic) S… and Jeremy were also at the same nightclub.  An altercation commence (sic) with S… as a result of this, I took out Violence Restraining Orders against S… and Jeremy.  I was tired of being caught up in their relationship and I did not want to be stressed out by S… during my pregnancy.  I was not afraid of Jeremy but I took out a VRO against him as well because I wanted to be free of both of them, because Jeremy fed off S…

   8.My daughter, A… was born [in] July 2009.  I sent photographs of A… and a card to Jeremy at Bunbury Regional Prison so that he would know what his daughter looked like.  I was contacted October 2009 by Jeremy Kingi and told that if I wanted to continue communicating with Jeremy, I would need to drop the VRO, instead I allowed it to run as it was due to run out at same time.

   9.Whilst Jeremy was incarcerated at Bunbury Regional Prison, I visited him with A… once only.  I visited him for the first time with A… on October 2009.

   10.When Jeremy was released from prison on 29 July 2010, I occasionally visited his house with A… for few months, without anyone knowing as I didn’t want S… to learn of this and didn’t want the drama it would of (sic) caused, and needed Jeremy to bond with A…

   11.Jeremy was again arrested because of his contact with S… on 12 August 2011.  After his arrest, I visited him in prison every week and took A… in to see him occasionally.  We spoke about our future plans on his release from prison which included moving on as a family.

   12.Jeremy proposed to me on a visit at the immigration centre June 2012, and would like to make clear this has nothing to do with his current position with regards to possibly being deported.  We had discuss (sic) this prior to him being advised of this visa cancellation.  We are at a place where we are comfortable in our relationship and trust in each other to know it will work.  A… is and has now bonded with her father and believes he is always at work.

   Leaving Australia

   13.Jeremy is a loving, caring and dedicated father.  I have seen the effect that being separated from his daughter, N… has had on him and I know that he will find it very difficult if he was separated from N… permanently.  His son, R… currently resides in New Zealand but his mother and stepfather are in the process of making arrangements to relocate to Australia.

   14.If Jeremy was unable to stay on in Australia, A… and I would have to move to New Zealand with him.  I asked Jeremy not to mention A… in his letter to the Department on previous occasions because we have been put through enough.  I have since been advised that all this information is important and should be disclosed.  My whole family including my mother, father and brother and my nephew and Jeremy’s family is here and I do not want to destabilise A… and remove her from her loving family environment in Australia.  I do not want to abruptly make such a big change to our lives but I also do not want to be separated from Jeremy again.  We have a very strong, stable relationship and I have not ever felt threatened or scared of him.  He has shown nothing but respect towards myself and A…  I do not want A… to grow up without her father because of the mistakes that he has made in the past.  It has become hard to go about my everyday life since I found out that once Jeremy was released from prison, he may be deported from Australia.  I am trying to be optimistic for both him and for me.

   15.I have discussed Jeremy’s need for treatment in regards to the offences he has previously committed and he has assured me that he will prioritise this and enrol in the necessary programs if he was allowed to stay in Australia.  Jeremy is a good man and I want to spend the rest of my life with him.  I do not believe that the offences that he has been convicted for reflect the man that he is.  He understands that it is extremely important that he obtain the treatment that he needs to minimise any risk that he may present to the Australian community.  I worry that if Jeremy was forced to leave Australia, he would not have a support system in New Zealand to supplement the counselling that he receives.

   …”(Exhibit A3)

3. In her oral evidence Ms Brown said that she and the applicant resumed their relationship about 12 months ago – that is, about 2 months before he was incarcerated in August 2011 – and that they became engaged to be married on 13 June 2012.  She said that, if the applicant were removed to New Zealand, she would “have a lot to think about”.  She added that it would be a “frightening prospect” for her to move to New Zealand because she has no family there but that she would move there with the applicant if necessary because she does not want her “daughter’s father taken away from her”.  She added that the applicant and their daughter have a “very good relationship” and that they speak on the telephone every day.

   Additional Evidence Tendered by the Applicant

   Psychological Risk Assessment Report of Genevieve Willis

4. A Psychological Risk Assessment Report, dated 15 June 2012, prepared by Genevieve Willis, Forensic Psychologist, states as follows:

   “ Mr Kingi (via his Mother) requested that this private report be undertaken. My understanding is that this report will form part of an appeal to the Administrative Appeal (sic) Tribunal, against a decision by the Department of Immigration and Citizenship to cancel Mr Kingi’s visa on the grounds that he does not meet the character requirements. This is based on the fact that Mr Kingi has been convicted of several offences including;

   ·Assault Occasioning Bodily harm.

   ·Aggravated Assault Occasioning Bodily harm.

   ·Threaten to harm or Kill

   ·Breach protective bail x 12

   ·Breach Violence restraining order x 7

   ·Threat to kill.

   This report is based upon:

   ·3 hour interview with Mr Kingi at Hakea Prison (10/05/12), including psychological testing. The testing included the use of the Millon Clinical Multiaxial Inventory – 3^rd edition (MCMI-III) an instrument that is used in many diagnostic and treatment settings, to permit the assessment of a wide range of clinically relevant behaviour. 

   ·Review of information provided by Mr Kingi’s mother, including a summary letter from an immigration lawyer they consulted. I have not viewed a copy of Mr Kingi’s Australian criminal record and therefore have based this report on information given to me by Mr Kingi and his mother regarding his criminal record. I have viewed his criminal record from New Zealand, which includes a juvenile history of offending.

   ·45 minute phone call with Mr Kingi’s Mother, Indiana Forgus, 13/06/12.

   Presentation

   Mr Kingi presented as a confident young Maori man with several prominent tattoos. He was friendly and polite and was fully compliant with the assessment process. He was open and communicative. He appeared oriented to time and place and there was no evidence of major psychiatric issues noted during the session. Mr Kingi demonstrated some insight into his offending behaviour and appeared to take responsibility for his actions, as well as demonstrating (limited) remorse for his actions. He had difficulty expressing his remorse, although with prompting was able to say that he felt regret and was not proud of what he did, particularly against a female who was not as strong as himself. He made other statements about his remorse that related more to the consequences for himself than the victim. He was unable to describe the physical injury caused by either of his assaults firstly on a man with whom he was involved in a road rage incident and secondly to his partner S…. Mrs Forgus advised that S… was very badly physically hurt with extensive bruising to her face and neck, and was hospitalized.

   Psychological Testing

   Mr Kingi was administered the (MCMI-III) a 175-item standardised measure which assesses personality traits and emotional adjustment as well as the presence of clinically concerning features. This tool has a number of indices to appraise an individual’s response style to guard against careless, confused and random responding as well as being able to identify whether a respondent answered with a significant positive (fake good) or negative deviation (fake bad) from that commonly observed.

   Mr Kingi’s results indicated a valid profile, and that he answered the questions in a frank and honest manner. The results indicated that Mr Kingi has an anxious personality style and has a somewhat paranoid thinking style. These results were not particularly consistent with the clinical presentation, however it was interesting to hear from Mrs Forgus that anxiety is very prominent in her family as well as many family members having a paranoid thinking style. In addition, Mr Kingi had elevations in passive aggressive interpersonal style, as well as Dysthymia, which indicates long term low mood. The passive aggressive interpersonal style is likely to have contributed to his offending behaviour however it is not clear as to whether the other clinical traits have any relevance to his offending. With regards to being passive aggressive, Mr Kingi accepted a lot of negative behaviour from his partner S… over time, but he would ultimately react and his reactions were extreme when he did react. It is interesting to note that his most violent offence towards his partner occurred in the context of alcohol intoxication whereby his normal ability to suppress his reactions were disinhibited.

   Social History

   Mr Kingi reported that he was born in New Zealand and lived with his mother for most of his childhood. He reported that he came to Australia with his mother when she moved here when he was around the age of 7 years. Mrs Forgus reported that she was very focused on her work and was not as available to Mr Kingi as he may have needed. Also that Mr Kingi did not get on well with her husband at the time. In addition, Mr Kingi said that he struggled with the heat and had blood noses and migraines which increased his desire to return to New Zealand. He returned to live with his father around the age of 9 or 10. He lived with his father and stepmother for a number of years. He described his upbringing with his father as ‘poor’, and that he was physically abused by his father who he described as having problems with alcohol. In addition, he described his relationship with his stepmother as unstable as he didn’t know from one day to the next whether or not she would be caring towards him or not. Mrs Forgus advised that Mr Kingi left residence with his father at the age of 14 years and went to live with her sister who she described as ‘a criminal’, indicating an influence on Mr Kingi and the possible reason for his juvenile history of offending. Mr Kingi reported that his relationships with his father and stepmother have improved over the years and that they now have good relationships, and that his father recently moved to Australia to be closer to Mr Kingi and his grandchildren. Mrs Forgus advised that her extended family in New Zealand are members of criminal gangs and that they are not in regular contact.

   Mr Kingi reported that throughout his schooling he had difficulty, that he was picked on at times and that he wasn’t academically strong. Mr Kingi stated that he left school around the age of 14 years and went into a work program doing Forestry, which he did up until the age of 21. He said that he enjoyed the work a lot but really wanted to be a mechanic. He said that he found it difficult to get an apprenticeship in New Zealand but was able to get one in Australia. Mr Kingi said that he came to Australia and completed his apprenticeship in mechanics and has been working in the area ever since. He stated that he enjoys his work a lot and that he derives a lot of satisfaction in life from his work.

   Mr Kingi reported that when he was 19 years of age he met his first partner Piriote and that they had a relationship that last 2.5 years. They had a son R… together. Mr Kingi reported that there was never any violence in that relationship. Mrs Forgus reported that Piriote came to Australia with Mr Kingi when he moved here to do his apprenticeship, but that the relationship broke down when Mr Kingi met his second partner S…. Piriote returned to New Zealand after the break down of their relationship, and despite the circumstances of their break up they have developed an amicable relationship over the years and Mr Kingi has contact with R… at least twice a year.  

   Mr Kingi described his second relationship with S…, the mother of his daughter N…, as problematic from the beginning. He said that he was in love with S… and was at her beck and call. He described it as being a very tumultuous relationship with both S… and himself behaving immaturely throughout (with infidelities on both sides). He said there was always drama and game playing in the relationship and that it was on again off again. Mr Kingi said that S… cheated on him with his best friend and yet he still wanted to be with her. He also said that there was a lot of conflict and verbal aggression between them throughout the relationship, including the threats to kill. Despite this Mr Kingi reported that he had a lot of contact with his daughter N…– until recent times, and that he describes a strong bond with his young daughter. Mr Kingi said that he currently does not know where S… and N… are, but that he is attempting to have a Family Court Order put in place to reinstate access to N…. Mrs Forgus reported that she and S…’s mother both tried to put an end to the relationship as they saw it as very destructive for both S… and Mr Kingi, but that they were met with resistance and hostility when they did this. It was due to this issue that Mrs Kingi (sic) took out a restraining order against both her son and S... She reported that she would receive hostile phone calls and text messages from them about her involvement in trying to end their relationship – to the point that it was interfering with her work.

   Mr Kingi was somewhat embarrassed to admit that it was during a break of his relationship with S… that he met his current partner Seraya and that she fell pregnant and had his 3rd child A… But that he and S… resumed their relationship and that Seraya was set aside at that time. He said that he and Seraya are now in a committed relationship and that she visits him regularly with his daughter and that they intend to be together when he is released from prison. Mr Kingi described his relationship with Seraya as much more stable and mature, and free from aggression or violence. This was confirmed by Mrs Forgus.

   Offending Behaviour

   Mr Kingi did not go into detail regarding his juvenile history of offending stating that he had a couple of offences for receiving stolen goods. He also appeared to have some nuisance offences, traffic offences, and most seriously a common assault and a burglary offence.

   As I have not viewed his Australian criminal record, information around this is based on what was reported to me by Mr Kingi. He related that he had an assault charge (possibly an Assault Occasioning Bodily harm), as a result of a road rage incident. Mr Kingi described being run off the road by another driver and that he got out of his car and assaulted the man. It sounds as though Mr Kingi’s actions were impulsive as he was able to admit that in hindsight he did not think the man’s actions were deliberate. With regards to this incident, Mr Kingi said that at the time he felt the person deserved what he got (ie Mr Kingi assaulting him) but that now he does not agree with that and understands there are better ways to solve problems.

   In relation to the other offences, Mr Kingi reported that they occurred in the context of his relationship with S… As described above it was a conflict filled relationship, and it would appear that Mr Kingi’s interpersonal style meant that he put up with behaviour he didn’t like, partly because he was in love with his partner, and partly perhaps because he did not have the communication skills to assertively discuss and resolve issues with her. But at times his emotions would build up and result in aggressive outbursts. With regards to the breach of restraining orders, Mrs Forgus stated that between Mr Kingi and S… they would make decisions to continue seeing one another despite the orders being in place, but then when there was conflict between them, S… would call the police and report the breach.

   Mr Kingi reported that with regards to the threat to kill offence that he and S… had agreed to maintain their relationship during his first period of incarceration, but that he found out during this time that she was cheating on him with his best friend. He said that he was so angry that he called her and made that threat. Despite this offence, Mr Kingi and S… recommenced their relationship when Mr Kingi was released from prison.

   Mr Kingi was somewhat vague on the details around the aggravated assault occasioning bodily harm. Mrs Forgus described that Mr Kingi and S… had decided to go on a night out nightclubbing, and that they arranged to have N… babysat by herself and her husband. Mrs Forgus said that both were already intoxicated when they arrived to drop off N… and continued to drink at her house, before going out. She said they were both very intoxicated and it was within 2 hours of them going out that the offence occurred. It is known that it occurred outside a nightclub with Mr Kingi punching S… about the face and attempting to strangle her. It is possible to hypothesize that Mr Kingi felt jealous about an event that occurred while they were out or that events of the past that made him angry were triggered by the disinhibiting effect of the alcohol.

   Given Mr Kingi’s upbringing he is likely to be highly sensitive to rejection. Mrs Forgus admitted that she prioritized work over spending time with Mr Kingi when he was young and then he went on to have conflictual and difficult relationships with his father and stepmother (notably that he often felt rejected by his stepmother). The frequent perceived and real rejections in his relationship with S… would have triggered powerful emotions in Mr Kingi around his issues with rejection and resulted in aggressive and violent behaviour from him. It is possible that in his other relationships, he has felt very secure regarding the love and commitment from those two women and that his rejection issues were not triggered in those relationships.

   Risk Factors for Re-offending

   There are several criminogenic factors (noted in Italics) that influence a person’s risk of re-offending. These include a history of criminal behaviour under the age of 18 years. Mr Kingi reported that he has a Juvenile history of offending, having been convicted of a series of offences as a juvenile in New Zealand. There is no evidence that Mr Kingi is suffering from any major mental illness although he is assessed to be suffering from anxiety this does not necessarily mean an increase in his risk. Mr Kingi reported that he drinks alcohol from time to time at a social and minimal level and that Substance abuse is not a current problem for him, although the violent offence against his partner was committed whilst under the influence of alcohol. Mrs Forgus reported that she has rarely seen her son drunk but that he was very drunk on the occasion of the offence against S… and that he does not tolerate alcohol well. He stated that he used to use the party drug ‘ecstasy’ in a social context but that he has not done so for several years. Mr Kingi did not demonstrate pro-criminal attitudes during the assessment, and from his self-report he is disappointed in himself about his behaviour, describing his past behaviour as regretful and ‘immature’. With regards to an offending peer group, Mr Kingi appears to have friends across a few groups. He has law abiding friends but also reported that he has friendships within Outlaw Motorcycle Gangs, although stated he was not a member and did not intend to become one. Mr Kingi appears to be a hard working person, with a good work ethic, and has stable employment. Mr Kingi has good support in the community, including his mother, father, extended family and current girlfriend (the mother of his youngest child A…).

   Mr Kingi was also assessed using the HCR-20 a Violence Risk Assessment scheme that considers Historical (static), Clinical, and Risk management. Due to the nature of Historical risk factors being static, Mr Kingi will always have concerning risk factors from his past. These however may be moderated by the clinical and risk management factors.

   His historical risk factors include previous violence, that he was under 20 years at first known violent act, has had relationship instability, and some early maladjustment. The moderating factors for Mr Kingi are that he has no major mental illness, no employment problems, and no current substance use problems. With regards to clinical issues, he has some insight (although lacking in depth), and he has generally pro-social attitudes. Of concern is that he has not had any treatment and has demonstrated impulsivity in the past. Mr Kingi stated that he is open to the idea of counselling but that he doesn’t feel he needs any. He said that he has matured, and that particularly over the course of his imprisonment he has become less impulsive and has learned to understand better the consequences of his actions.

   In the area of risk management moderating factors for Mr Kingi are that he has good community based support and a relatively good plan for his release into the community. The main area for concern in risk management is his exposure to stress and possible destabilisers. The main one of these is having contact with his ex-partner S…. Given that Mr Kingi is keen to pursue access to his daughter N…, this will unfortunately mean some form of contact or communication with S…. Based on the summation of all these factors, Mr Kingi presents as a moderate risk of re-offending in a like manner.

   Impact of Deportation

   Mr Kingi reported that it would be very difficult for him if he were to be deported to New Zealand as he has no ties there (his first partner and son R… having just moved to Australia), apart from his mother’s extended family with whom he is not close and who are members of criminal gangs. He has extensive family support in Australia and his adult employment history is in Australia. If he were to be deported his ability to have contact with at least two his (sic) children would be compromised. Mr Kingi stated that his current partner and daughter A… would possibly move to New Zealand with him.

   To assist Mr Kingi to reduce his risk of re-offending, counselling would be crucial. He requires assistance with his interpersonal communication style, as well as emotion management. In addition, he needs counselling to help develop insight into how the relationship with S… triggered issues from his past and as part of this it would be helpful for him to work through those issues from his past. It is helpful that Mr Kingi now has good relationships with his parents as he would be able to do this counselling from a perspective of security in those relationships.

   Finally, if Mr Kingi is allowed to remain in Australia he will need assistance regarding negotiating access to his daughter N…. He will require either practical and/or emotional support to deal with what is likely to be a stressful and potentially destabilizing situation.” (Exhibit A4)

1. Although the respondent’s solicitors notified the applicant’s solicitors prior to the hearing that they required Ms Willis’ attendance at the hearing for cross-examination, Ms Willis did not attend the hearing and was not available for cross-examination by the respondent.

   Letters of support

2. The following letters of support were tendered in evidence by the applicant (Exhibit A7):

   ·letter (undated) from Paul Marsandi;

   ·letter from Ashley Coulter and Tanya Coulter, dated 8 May 2012;

   ·letter from Laze Gastaraov, dated 22 May 2012;

   ·letter from Siana Pobke, dated 4 June 2012;

   ·letter from Steven Prout, dated 4 June 2012;

   ·letter from Sueana Kingi (a sister of the applicant), dated 5 June 2012; and

   ·letter from Te Taero (the applicant’s father), dated 6 June 2012.

   Pre-Sentence Reports

3. The pre-sentence reports prepared for the purposes of the applicant’s sentencing on 30 July 2009 (see paragraph 11 above) and on 6 September 2011 (see paragraph 12 above) are in evidence (Exhibit R2, pp 1 – 4 and pp 11 – 15, respectively).

4. The pre-sentence report, dated 27 July 2009, contains the following description of the relevant offences committed by the applicant on 22 May 2009:

   “ In 24/07/2009, Mr Kingi attended a PSR interview and he was open and forthcoming with information.  With regards to the Unlawfully Assault and thereby did Bodily Harm with Circumstances of Aggravation offence, he claimed that he and his ex-partner had organised to meet friends at a well known pub in Perth.  He claimed that he was refused entry to the premises as he did not have sufficient identification; however his partner was allowed entry.  Mr Kingi claimed that despite several requests for his partner to accompany him home to get identification, she refused to leave and this eventually lead to a verbal altercation.  Mr Kingi was challenged as to why he expected his partner to leave the premises and accompany him, to which he eventually conceded that he ‘didn’t trust her … I was scared she might cheat on me … I also didn’t trust some of the other people we were meeting there …’  Mr Kingi agreed that once the altercation move outside, he physically assaulted his partner by attempting to choke her and by punching her to the face, only stopping once members of the public intervened.  Mr Kingi denied that he was under the influence of alcohol or illicit substances at the time, he did not attempt to minimise his behaviour and he did not attempt to apportion blame on the victim, stating, ‘I just exploded … I knew it was wrong, but I couldn’t stop myself …’

   With regards to the Give False Personal Details to Police offence, Mr Kingi claimed that immediately after physically assaulting his ex-partner, he left the vicinity and proceeded to go home as he ‘knew that the Police would be after me.’  When apprehended by Police on his way home, Mr Kingi claimed that he provided them with false information as he ‘was scared that I would be sent to jail, so I just wanted to go home to see my daughter and I thought that lying to them [Police] would give me a bit more time’.”

   The report concludes as follows:

   “ SUMMARY

   Mr Kingi is a 25 year old man currently before the Court for physically assaulting his partner of approximately four years, causing her physical injuries as well as emotional trauma.  Mr Kingi was open and forthcoming with information during the Pre Sentence Report interview and it was evident that he not only has a general anger management issue with elements of poor impulse control and poor consequential thinking skills, but more so, he has unaddressed domestic violence issues which are evidenced by his attempts to gain power and control of his estranged partner with the use of violence.  Unfortunately, due to his current fly-in fly-out employment commitments, he is unable to attend weekly domestic violence group therapy; hence he is unsuitable for the Family Violence Court regime.

   The various sentencing options were discussed with Mr Kingi and he indicated that he would be prepared to abide by any direction the Court may give including a community-based sanction.  A program requirement would allow this service to facilitate referrals to Psychological Counselling, which he would be able to access on the weeks that he is off work and in the metropolitan area.  Although group therapy is the best means of intervention for domestic violence behaviours and individual Psychological Counselling is not ideal programmatic intervention, Mr Kingi’s behaviours and issues are so entrenched that it appears that Psychological Counselling is better than no intervention at all.  Any gains made in this area could be supported by a period of supervision.

   Should the Court deem imprisonment the appropriate sentence, Parole eligibility could provide the opportunity for supervision after release and the provision of appropriate programs.  It is envisaged that he would have attended relevant treatment programs during such a custodial sentence.”

5. The pre-sentence report, dated 26 August 2011, refers to the relevant offence committed by the applicant on 8 January 2010 as follows:

   “ As per the Statement of Material Facts (SOMF), the current offence involved Mr Kingi making several serious threats towards his then partner during a telephone call from prison at different times on the 8^th of January, 2011 (sic).

   Mr Kingi stated that he concurred with the SOMF’s, however, he claimed being unable to recall explicitly what threats he made to the victim.  Mr Kingi explained that at the time he had reached ‘rock bottom’, when asked to elaborate, Mr Kingi reported loneliness, isolation and receiving information that the victim had been involved with other men in the community whilst he was serving a term of imprisonment caused him to become upset, depressed and irrational.  Mr Kingi admitted that he failed to comprehend the severity of his offending at the time of committing the offence.  He attributed his actions to wanting to ‘scare and upset her, so she could feel how I felt’.  Mr Kingi claimed he never had the intent of following through with his threats.

   Mr Kingi accepted responsibility for his offending behaviour; however a level of minimisation was apparent stating his actions were ‘tit for tat’.  He had some insight into the seriousness of his threats and the harm caused to the victim as result.”

   The report concludes as follows:

   “ RISK ASSESSMENT

   Mr Kingi presents with high treatment needs, evidence through his history of violent/abusive related offending, particularly in a domestic setting against a common victim.  Of concern, is the frequency of convictions in a short period of time in addition to the escalation of Mr Kingi’s offending.  Departmental Records suggest Mr Kingi has been unable to adhere to protective constraints in the community and more alarming is that the current offence was committed whilst he was restrained in the custodial setting.  Mr Kingi been (sic) charged with further offences some of which had allegedly occurred whilst he was subject to bail conditions for the current offence.

   Mr Kingi acknowledged that he needs to address his violence; however, he has not yet been provided an opportunity to do so.  Mr Kingi reported a history of exposure to violence throughout his childhood which appeared to be normalised in his country of origin in addition to experiencing a lack of positive support throughout his upbringing.  It appears Mr Kingi lacks the skills required to deal with conflict, manage his anger and cope with stressors without resorting to violence or abusive behaviours.  Mr Kingi’s relationship history presents as problematic, which appears to have had ongoing issues related to jealousy, mistrust and power and control which have led to violence.

   He conceded that historically he has prioritised his employment, however, since the current offence he reported needing to making his offending behaviour a priority.  Mr Kingi stated that he would be willing to temporarily forfeit his fly in fly out employment arrangement to engage in employment in the metropolitan area as this will allow him to engage in programmatic intervention in the community.  Although, this could not be confirmed with Mr Kingi’s employer it may be indicative of Mr Kingi’s motivation to address his behaviour.  Mr Kingi confirmed that substance abuse issues were not a contributing factor to his offending behaviour.

   It is anticipated that Mr Kingi’s risk of re-offending may be reduced if he engages in programmatic intervention.  Men’s domestic violence counselling is available in the community, pending assessment for suitability.  However, in light of Mr Kingi’s history of offending against the same victim and alleged re-offending, participating in programmatic intervention in the custodial setting may reduce the risk to the victim.  Without intervention, Mr Kingi is considered a high risk of re-offending.

   RECOMMENDATION

   Mr Kingi is a 27 year old man before the Court for threatening his ex-partner.  Although Mr Kingi accepted responsibility for his offending behaviour, a level of minimisation, victim blame and justification was apparent.  Mr Kingi conceded that he requires intervention to address his violence and claimed to have prioritised the need for this to occur to reduce the likelihood of re-offending.

   Based on Mr Kingi’s offending history (nature and frequency), social history and current circumstances, it appears Mr Kingi requires significant intervention to address his violence.  Should Mr Kingi be placed on a community based disposition, it is respectfully recommended that Supervision and Program (domestic violence) requirements be imposed.  This will provide Mr Kingi with the opportunity to address his offending behaviour whilst under supervision in the community.

   If the Court however deems a custodial sentence more appropriate, a period of parole may assist his successful return into the community.”

   Additional Relevant Evidence

6. The “G Documents” (Exhibit R1), the Respondent’s Supplementary Documents (Exhibit R2), and other exhibits include further relevant material which will be referred to in the course of the following analysis.

   Analysis

   Application of the “character test”

7. By reason of the fact that the applicant “has been sentenced to a term of imprisonment of 12 months or more” – most recently, on 6 September 2011 – the Tribunal finds that the applicant has a “substantial criminal record”, as defined in s 501(7) of the Act, and that, by reason of s 501(6)(a) of the Act, he does not pass the “character test”.

8. It follows from that finding that the discretionary power to cancel the visa, pursuant to s 501(2) of the Act, is enlivened in this case.

   Should the discretionary power to cancel the visa be exercised in this case?

9. Part B of Direction [41] comprises paragraphs 8 – 11.  Paragraph 9 states:

   “(1)     … decision-makers must take into account the primary considerations in every case.  The other considerations (defined in paragraph 11) should be taken into account where relevant.

   Note:The primary considerations are set out in paragraph 10 of this Direction.  The other considerations are set out in paragraph 11.

   (2)Decision-makers should only take into account directly relevant considerations.

   …”

   The Primary Considerations

10. Paragraph 10 of Direction [41] sets out the primary considerations as follows:

    “ 10.The primary considerations

    (1)In deciding whether to refuse to grant a person a visa or cancel a person’s visa, the following (the primary considerations) are to be considered:

    (a)  the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;

    (b)  whether the person was a minor when they began living in Australia;

    (c)   the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and

    (d)  relevant international obligations, including but not limited to:

    (i)the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and

    (ii)the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).”

    The protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence

11. Paragraph 10.1 of Direction [41] states:

    “ 10.1Protection of the Australian community

    (1)Due consideration is to be given to the Government’s objectives set out in Part 1, paragraph 5 of this Direction.

    (2)The factors relevant to assessing the level of risk of harm to the community of the person’s entry or continued stay include:

    (a)  the seriousness and nature of the relevant conduct; and

    (b)  the risk that the conduct may be repeated.”

12. The objectives set out in Part 1, para 5 of Direction [41] are as follows:

    “ 5.1Objectives

    (1)The objective of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens.

    (2)In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.

    (3)The Government is especially mindful to protect the safety of the community’s more vulnerable members, including minors, the elderly and the disabled.”

    The seriousness and nature of the relevant conduct

13. Paragraph 10.1.1(1) of Direction [41] states:

    “ 10.1.1  The seriousness and nature of the conduct

    (1)Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community.  Those crimes involving violence, particularly against vulnerable persons (such as minors, the elderly and the disabled), are especially abhorrent to the whole community.”

    Paragraph 10.1.1(2) lists (in subparas (a) – (m)) “examples of offences and conduct that are considered serious”, including (relevantly):

    “(d)     grievous bodily harm, reckless injury, assault and aggravated assault (including abduction);”.

    Paragraphs 10.1.1(3) and 10.1.1(4) relevantly state:

    “(3)     The sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community.  Due regard must be given to the extent of the person’s criminal record, including

    (i)     the number and nature of offences;

    (ii)     the period between offences; and

    (iii)    the time elapsed since the most recent offence.

    (4)The following factors are also to be considered:

    (a)any relevant information, including, but not limited to, evidence from independent and authoritative sources in respect of the person such as judicial comments in an individual’s case, professional psychological reports, pre-sentence reports for the courts, parole assessments, victim impact statements and similar sources of authoritative information or assessment;

    (b)any relevant factors the person provides as mitigating factors;

    …”.

14. There can be no question, having regard to the factors referred to in subparas (3) and (4) of para 10.1.1 of Direction [41], that the applicant’s criminal record in Australia (as set out in paragraph 10 above) is serious.  That record, furthermore, includes three offences involving violence or threatened violence (committed on 10 May 2006, 22 May 2009 and 8 January 2010) which, according to subpara 10.1.1(1) of Direction [41], are “of special concern to the welfare and safety of the Australian community”.

15. The applicant’s criminal record in New Zealand (as set out in paragraph 9 above), although of a less serious order than his criminal record in Australia, is nevertheless a matter of concern.

    The risk that the conduct may be repeated

16. 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.”

17. In the Tribunal’s opinion, the applicant’s “total criminal history” and “previous general conduct” clearly point to the present existence of a real risk that he may re-offend.  The Tribunal notes, in particular, that:

    ·the applicant’s recent criminal history in Australia comprises a total of 24 offences committed in the period from 10 May 2006 to 3 August 2011 (see paragraph 10 above);

    ·the applicant’s relevant “previous general conduct” (about which there is evidence before the Tribunal) includes:

    -    his making a false statement and a false declaration in an Incoming Passenger Card, completed by him on 21 May 2005 in relation to his arrival in Australia on that date, to the effect that he did not have any criminal convictions (Exhibit R4);

    -    various incidents involving unsatisfactory behaviour by him in prison in the period from March 2010 to January 2012, including two incidents involving violence towards another prisoner (in August 2011 and January 2012) (Exhibit R2, pp 33 – 44).

18. The Tribunal also notes that:

    ·although the applicant, by way of rehabilitation, has participated in some short parenting programs while incarcerated, namely, in September 2010, September 2011 and November 2011 (Exhibit R2, p 31), he has not participated in any Department of Corrective Services programs relating to areas in respect of which he has been assessed as having “high treatment needs” (see the pre-sentence report, dated 26 August 2011, referred to in paragraph 25 above), including anger management and violent offending;

    ·on 8 October 2010 the applicant was convicted of 10 counts of breaching protective bail conditions and on 7 September 2011 he was convicted of one count of breaching protective bail conditions (on 8 October 2010) and six counts of breaching a Violence Restraining Order (in the period from 1 April 2011 to 3 August 2011).

    In the Tribunal’s opinion, these factors also point to the present existence of a real risk that the applicant may re-offend.

19. As regards rehabilitation, however, the Tribunal notes that, in a Department of Corrective Services Classification Review dated 5 February 2010, it is stated as follows:

    “ …

    7.15 Program Performance

    …

    Comments:  Kingi was assessed by Bunbury Regional Prison Treatment assessors on the 02/02/2010 with the following treatment interventions identified;

    COGNITIVE SKILLS – THINK FIRST – medium intensity

    Kingi appears to be at the preparation stage of change and is trying hard to change his response to difficult situations.  Kingi believes that he needs to address his thoughts and anger management issues and is willing to engage in the Cog Skills program to address some of his unhelpful styles of thinking.  It is recommended that Kingi be placed on the Cog Skills program prior to his release.
    Unavailable prior to EDR 29/07/2010.

    EDUCATION & VOCATIONAL – No course recommended.

    Kingi has a strong work history, vocational qualifications as a Mechanic, and work to go to following his release.  He therefore does not require career guidance.

    SUBSTANCE USE – Pathways – high intensity.

    Kingi has two serious recorded offences of Aggravated Assault Occasioning Bodily Harm since 2007.  There is no current criminal history from his country of origin.  It is recommended that Kingi is listed to engage in the Pathways program to address his problems with substance abuse.
    Unavailable prior to EDR 29/07/2010.

    VIOLENT OFFENDING – Medium Intensity Violence Program.

    Mr Kingi currently has two Aggravated Assaults Occasioning Bodily harm on his Australian Criminal History.
    Mr Kingi is willing to engage in any program deemed appropriate for him and he would like to address his anger management issues.  It is recommended that Mr Kingi be considered for the MIV program, time and resources permitting.” (Exhibit R2, p 9)

    The Tribunal also notes that, in a Department of Corrective Services Immigration Report, dated 27 October 2011, in respect of the applicant’s latest period of incarceration, it is stated:

    “ Kingi was not assessed for any treatment intervention in view of the length of the current sentence.”  (Exhibit R1, G16, p 82)

1. The Tribunal accepts the applicant’s evidence, as stated in his letter of 21 May 2012 (Exhibit A1 – see paragraph 14 above), to the effect that he earnestly sought to enrol in the abovementioned Cognitive Skills, Pathways and Violent Offending programs during his incarceration and it accepts that, through no fault of his own, he was unable to do so.

2. The question arises, however, whether the applicant, if permitted to remain in Australia after his release from detention, would participate in counselling programs in the community in the areas of need, including anger and emotion management and domestic violence.  The applicant has acknowledged that, in the past, he has devoted his time to earning a substantial income from “fly in/fly out” employment at the expense of addressing his violent offending behaviour by obtaining counselling in the metropolitan area.  The question is whether he would continue to prioritise employment income ahead of his need for treatment in the future.

3. Having regard to the applicant’s evidence, the Tribunal accepts that he is committed to seeking and obtaining professional counselling in the areas of need, including anger and emotion management and domestic violence, and that, to that end, he will seek employment in the metropolitan area to facilitate his access to such counselling.  The Tribunal is, furthermore, satisfied, having regard to the evidence of Ms Forgus and Ms Brown, that they will strongly encourage the applicant to obtain such counselling and provide moral support to him during the counselling process.  Having regard to the evidence before it, the Tribunal is satisfied that it is highly likely that the applicant will obtain professional counselling in the areas of need, including anger and emotion management and domestic violence, upon his release from detention.

4. As regards the likely effect of such counselling on the applicant and his prospects of rehabilitation, the Tribunal notes comments made in the abovementioned pre-sentence reports (see paragraphs 24 and 25 above), the Department of Corrective Services Classification Review (see paragraph 39 above), and the report of Ms Willis (see paragraph 20 above) recommending (in effect) that the applicant undergo counselling in the abovementioned areas of need and thereby implying that such counselling may be beneficial to the applicant and promote his rehabilitation.

5. The Tribunal accepts that the applicant is genuinely committed to obtaining counselling in the abovementioned areas of need, and, in its opinion, such counselling, if obtained by him, is likely to be beneficial to him and promote his rehabilitation.  The Tribunal is, furthermore, of the opinion that, if the applicant obtains such counselling, his prospects of rehabilitation will be good.  Nevertheless, because the applicant has not yet engaged in such counselling, the Tribunal cannot be satisfied that he has yet made significant progress towards his rehabilitation such that he now presents little, if any, risk of re-offending.  On the contrary, the Tribunal is of the opinion that he currently continues to present as a real risk of re-offending in a seriously violent manner.

6. As regards the degree of such risk, however, the Tribunal notes the following comment of Judge Macknay in his sentencing remarks of 6 September 2011:

   “        I have had the benefit of the victim impact statement, from which it appears that the complainant was affected by your threat, as you intended, of course.  I give you credit for your excellent work record.  You are, of course, still a comparatively young man.  It might be that when this relationship is behind you that you will be at significantly less risk of offending.” (Exhibit R1, G18, p 96)

   The Tribunal is satisfied, having regard to the applicant’s evidence and the evidence of Ms Forgus and Ms Brown, that the applicant’s relationship with Ms H (the abovementioned “complainant”) has long since ceased and that he has been in a committed relationship with Ms Brown for at least the last 12 months).  The Tribunal is, furthermore, of the opinion, having regard to the abovementioned pre-sentence report of 26 August 2011, and to the abovementioned report of Ms Willis dated 15 June 2012, that the applicant’s engaging in appropriate professional counselling is likely significantly to reduce the risk of his re-offending.

7. As regards the degree of the risk of the applicant’s re-offending at the present time, the Tribunal agrees with, and accepts, the opinion expressed by Ms Willis in her abovementioned report that the applicant “presents as a moderate risk of re-offending in a like manner”.  The Tribunal notes, from the short curriculum vitae provided by Ms Willis with her report, that she has substantial relevant experience, working with the Department of Corrective Services, as a prison psychologist and in conducting assessments for psychological pre-sentence reports, including assessments of risk of re-offending.  Although Ms Willis was not available for cross-examination by the respondent and the respondent submitted that no weight should be given to her report, the Tribunal, having regard to the whole of the evidence before it, regards Ms Willis’ report as appropriately informed, balanced, objective and comprehensive, and it attaches significant weight to that report.

   Conclusion regarding the protection of the Australian community

8. Having regard to the Government’s objectives referred to in para 5.1 of Direction [41], the applicant’s criminal history, including, in particular, two serious offences involving violence or the threat of violence for which he received substantial custodial sentences, and the Tribunal’s assessment that there is presently a moderate risk that he may re-offend in a serious manner involving violence, the Tribunal concludes that this “primary consideration” weighs in favour of cancellation of the visa. Having regard to all the circumstances of this case, the Tribunal attaches substantial weight to this “primary consideration”.

   Whether the person was a minor when they began living in Australia

9. Paragraph 10.2 of Direction [41] states:

   “ 10.2   Whether the person was a minor when they began living in Australia

   (1)   If the person was a minor when they began living in Australia and spent their formative years in Australia, thereby increasing the likelihood of establishment of greater ties and linkages to the Australian community, this is to be given favourable consideration.

   (2)   Less weight should be given if the person began living in Australia as a minor but was close to attaining adulthood at that time.

   Note: For example, if the person was between 17 and 18 years old on arrival.”

   By para 6(1) of Direction [41] the word “minor”, for the purposes of the Direction, “has the same meaning as in section 5(1) of the Act”, namely, “a person who is less than 18 years old”.

10. It is common ground that the applicant was a minor (namely, about 8 years and 7 months old) when he first began living in Australia in May 1992 but that he ceased living in Australia about 21 months later in February 1994 when he returned to New Zealand.  He next began living in Australia in  May 2005 when he was 21 years of age.

11. Accordingly, the applicant spent a total of 21 months during his “formative years”, when he was 8 – 9 years old, in Australia.  This consideration, in the Tribunal’s opinion, does not weigh significantly in his favour.

12. The Tribunal attaches no weight to the circumstance that the applicant was 21 years old when he returned to Australia to live in May 2005.

    The length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct

13. 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.”

14. According to the applicant’s recorded criminal history in Australia (see paragraph 10 above), the first offence of which he was convicted was committed by him on 10 May 2006 – that is, about 11 ½ months after he became ordinarily resident in Australia on 21 May 2005.  He thereafter continued to offend up until 3 August 2011, as set out in paragraph 10 above.

15. In the Tribunal’s opinion this “primary consideration” weighs in favour of cancellation of the visa (see Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 390 at 396–397), but, in the circumstances of this case, the Tribunal does not attach significant weight to it.

    Relevant international obligations

16. 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).”

17. The only relevant international obligation in this case is the obligation to have regard to “the best interests of the child”.

18. 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.

    …

    10.4.1  The best interests of the child

    (1)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse to grant or cancel a visa is expected to be made.

    (2)The best interests of any child who is 18 years or older is not a primary consideration but may be considered with other considerations under paragraph 11 of this Direction.

    (3)If there are two or more relevant children, it is not to be assumed that the best interests of each child will coincide.  It may be that the best interests of one child may indicate that the person should not be refused a visa or have their visa cancelled and be removed from Australia, whereas the best interests of another child may not be adversely affected by visa refusal or cancellation and removal.  The best interests of each child should therefore be given individual consideration.

    (4)Under Australian law, it is generally presumed that a child’s best interests will be served if the child remains with its parents.  Factors which may indicate that the child’s best interests are served by separation from the person include, but are not limited to:

    (a)any evidence that the person has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; or

    (b)any evidence that the child has suffered or experienced any physical or emotional trauma arising from the person’s conduct.”

19. It is common ground that the applicant has three children under the age of 18 years, namely, a son [R] aged 6 years, and two daughters, one [N] aged 4 years, and the other [A] aged 2 years and 11 months.  The applicant’s son, however, is a New Zealand citizen and lives in New Zealand, and, accordingly, Australia has no obligation under the Convention on the Rights of the Child (“CROC”) in respect of the applicant’s son.  Each of the applicant’s daughters, on the other hand, is an Australian citizen and lives in Australia, and, accordingly, the obligation under the CROC to have regard to “the best interests” of each of those children is, pursuant to para 10(1)(d)(i) of Direction [41], a “primary consideration” in this case.

20. Paragraph 10.4.1(5) of Direction [41] lists the factors which “are to be considered” in considering the best interests of the child.  As regards those factors which are applicable in the circumstances of this case, the Tribunal comments as follows.

    The applicant’s 4-year-old daughter [N]

21. The relevant evidence before the Tribunal indicates that:

    ·although the applicant had close physical and emotional contact with [N] for the first three years of her life, he has had much less contact with her since his relationship with her mother ceased about 14 months ago – indeed, on 4 August 2011, the child’s mother obtained a Restraining Order restraining the applicant from having any communication with the child while the Order is in force (the expiry dated being 2 September 2013) (Exhibit R2, p 54), and the applicant is not aware of their current whereabouts;

    ·the applicant will not play a full parental role, and is unlikely to play a substantial parental role, up to the child’s eighteenth birthday;

    ·the child’s mother presently plays a full parental role in relation to the child and is likely to continue to do so up to the child’s eighteenth birthday;

    ·the applicant has commenced Family Court proceedings with a view to obtaining regular access to the child but the likely outcome of those proceedings is uncertain.

22. In the Tribunal’s opinion it would be in the child’s best interests for the applicant to remain in Australia so that she would have the opportunity to continue to develop a relationship with him.  In the present circumstances of this case, however, the Tribunal does not attach substantial weight to this consideration.

    The applicant’s daughter [A], aged 2 years and 11 months

23. Different considerations apply in the case of the applicant’s younger daughter.  Although the applicant has been incarcerated for most of her life and has thus not had the opportunity to develop a close relationship with her to date, the Tribunal, as presently advised, is satisfied that it is likely that the applicant, upon his release from detention, will commence to play a full parental role in relation to her and, provided that he does not re-offend and again become incarcerated, will continue to do so up to her eighteenth birthday.

24. Ms Brown, the child’s mother, presently plays a full parental role in relation to the child, and the Tribunal accepts that it is her – and the applicant’s – wish and intention that she, the applicant and the child live together as a family unit as soon as they are in a position to do so after the applicant’s release from detention.  Indeed, Ms Brown has acknowledged that, if the applicant were returned to New Zealand, she and the child would accompany him.

25. The Tribunal is not satisfied that the child, in the event that the applicant is returned to New Zealand and she and Ms Brown accompany him, would encounter any language, or any significant cultural, barriers in New Zealand or would be significantly disadvantaged as regards health and educational facilities and other community services.  The Tribunal is, however, satisfied that he child would be likely to suffer substantial emotional distress if she ceased to reside in Australia.  In this connection, the Tribunal accepts the following evidence of Ms Forgus and Ms Brown:

    ·     in her statutory declaration (Exhibit A2), Ms Forgus stated (relevantly):

    “23.     If Jeremy had to relocate to New Zealand, I believe that Seraya and A… would go with him.  They would have to leave their family here and start their lives in New Zealand with no family support.  It would be extremely difficult for Seraya to adjust as her entire family resides in Australia and it would be upsetting for A… to be removed from such a loving family environment.  A… has always lived inside her maternal grand-parents’ home, and Seraya has never been to New Zealand and I believe the strain of relocating to a strange country for her would definitely take its toll on her and A…”;

    ·   in her statutory declaration (Exhibit A3), Ms Brown stated (relevantly):

    “14.     If Jeremy was unable to stay on in Australia, A… and I would have to move to New Zealand with him. …  My whole family including my mother, father and brother and my nephew and Jeremy’s family is here and I do not want to destabilise A… and remove her from her loving family environment in Australia. …”

26. In the Tribunal’s opinion it would, for the abovementioned reasons expressed by Ms Forgus and Ms Brown, be against the child’s best interests for her to cease to live in Australia.  It follows that, because the child would cease to live in Australia only in the event that the applicant was removed from Australia, it would be in the child’s best interests for the applicant to remain in Australia.  In the Tribunal’s opinion, significant weight should be attached to this consideration.

    Conclusion regarding relevant international obligation

27. Having regard to the matters discussed in paragraphs 60-65 above, the Tribunal is satisfied that it would be in the best interests of each of the applicant’s daughters if the visa was not cancelled and he remained in Australia.  Although, for the reasons expressed in paragraphs 60–61, the Tribunal does not attach substantial weight to the consideration relating to the best interests of the applicant’s 4-year-old daughter, it does, for the reasons expressed in paragraphs 62–65, attach significant weight to the consideration relating to the applicant’s younger daughter, [A].

28. The Tribunal concludes, therefore, that this “primary consideration” weighs against cancellation of the visa to a significant degree.

    Other Considerations

29. 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 a non-exhaustive list of “other considerations”.  The Tribunal comments on those “other considerations”, which are relevant in this case, as follows.

    Family ties, the nature and extent of any relationships

30. According to the evidence before the Tribunal, all of the members of the applicant’s immediate family (other than his son, [R], who lives in New Zealand) reside in Perth, Western Australia.  These members include his parents and step-parents, a brother and two sisters, and his two daughters.  If the applicant were removed from Australia those ties to the Australian community would obviously be disrupted to the extent that he would be geographically separated from those family members.  To that extent this consideration weights against cancellation of the visa.

    Links to the country to which the person would be removed

31. According to the evidence before the Tribunal, the applicant was born, raised and educated in New Zealand (except for the period from May 1992 to February 1994 when he was in Australia), and employed in New Zealand, and lived there until May 2005 (when he was 21 years old).  Various members of his extended family live in New Zealand but the Tribunal accepts that he does not have a close relationship with any of them and that they would be unlikely to constitute an effective support network for him.  On the other hand, the applicant’s son, [R], and [R’s] mother (the applicant’s former partner) presently reside in New Zealand, although the Tribunal understands that they (together with her partner) are exploring the possibility of moving to Australia.  If those persons continue to reside in New Zealand, the Tribunal accepts that they would be likely to provide social support to the applicant, and the applicant would have the benefit of frequent physical contact with his son.

1. The Tribunal regards this consideration as neutral and not weighing either in favour or against cancellation of the visa.

   Hardship likely to be experienced by the person or their immediate family members lawfully resident in Australia

2. The Tribunal accepts that the applicant, if he were removed from Australia, would be likely to experience substantial emotional distress and hardship by reason of his physical separation from (especially) his 4-year-old daughter, [N], and, to a lesser extent, the other members of his immediate family (other than his younger daughter who is likely to accompany him to New Zealand) who live in Australia.  The Tribunal notes, on the other hand, that the applicant would, as previously mentioned, have the benefit of physical contact with his son in New Zealand (if his son continued to live there).

3. The Tribunal is also prepared to accept that the applicant would be likely to be financially disadvantaged if he were returned to New Zealand by reason of the likelihood of his having fewer employment opportunities and earning lower wages in New Zealand than in Australia.

4. The Tribunal also has regard to the emotional hardship Ms Brown would be likely to suffer by reason of her accompanying the applicant to New Zealand if he were returned to that country.  Having regard to Ms Brown’s evidence (as set out in paragraph 64 above), the Tribunal accepts that her re-locating to New Zealand - a country which she has never visited and with which she has no links - and thereby being separated from her parents (with whom she presently lives) and other immediate family members in Perth, would cause her substantial emotional hardship.

5. The Tribunal also accepts that the applicant’s removal from Australia would cause emotional hardship to his mother, Ms Forgus, and to other members of his immediate family lawfully resident in Australia, including his father, Te Taero (Taylor), and his sister, Sueana Kingi, letters from whom are in evidence (part of Exhibit A7).

6. In the Tribunal’s opinion this consideration clearly weighs against cancellation of the visa.

   Whether the person has been formally advised in the past by an officer of the Department about conduct that brought the person within the character (visa refusal and cancellation) provisions of the Act

7. By letter dated 20 July 2010 an officer of the Department wrote to the applicant as follows:

   “       NOTICE OF DECISION NOT TO CANCEL VISA UNDER SECTION 501

   OF THE MIGRATION ACT 1958

   On 1 July 2010 the Department of Immigration and Citizenship notified you that the visa which authorises your continued stay in Australia may be liable for cancellation under section 501 of the Migration Act 1958 on character grounds.

   After taking into account all relevant considerations, a delegate of the Minister has made a decision not to cancel your visa on character grounds on this occasion.  Your current Class TY Subclass 44 (sic) Special Category (Temporary) visa will continue to provide you with permission to remain in and re-enter Australia.

   Please note: this decision does not mean that your case cannot be considered again under s501 in the event of further criminal offending by you.

   …

   Please acknowledge receipt of this letter by signing and returning the attached page in the enclosed envelope or by faxing to …” (original emphasis) (Exhibit R1, G11, p 67)

   A written acknowledgment, signed by the applicant and dated 22 July 2010, states as follows:

   “ I, Jeremy Solomon KINGI acknowledge that I have received the Notice of decision not to cancel a visa under subsection 501(2) of the Migration Act 1958. I understand that I can again be considered for refusal or cancellation of any visa granted to me if further information of relevance comes to the attention of the Department at any time in the future and that if this happens, my past conduct and previous relevant information can also be reconsidered.”  (original emphasis) (Exhibit R1, G11, p 68)

8. The Tribunal notes, having regard to the applicant’s criminal record (see paragraph 10 above), that the only offences committed by the applicant after his receipt of the abovementioned notice were offences involving failing to comply with a request by police to provide personal details and various breaches of protective bail conditions and Violence Restraining Orders.  The Tribunal also notes that the abovementioned notice does not go so far as expressly to warn or counsel the applicant regarding the possible consequences of his disregarding the notice and committing further offences.

9. This consideration weighs against the applicant and in favour of cancellation of the visa but, having regard to the abovementioned considerations, it does not, in the Tribunal’s opinion, so weigh to a substantial degree.

   Overall Assessment of the Primary Considerations and the Other

   Relevant Considerations.

10. Having considered the primary considerations and the other relevant considerations in this case, the ultimate task of the Tribunal is to determine, on the basis of the appropriate weight to be given to each of those considerations having regard to Direction [41], whether or not those considerations, on balance, favour cancellation, or non-cancellation, of the visa.

    The primary considerations

11. As regards the primary considerations, the first abovementioned primary consideration, namely, “the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence”, weighs against the applicant and in favour of cancellation of the visa to a substantial degree.  In the Tribunal’s opinion, however, the applicant’s criminal record, while extensive, does not include any offences which are so serious, and the risk of his re-offending in a seriously violent or other serious manner is not so high, as to make it appropriate to attach overwhelming or decisive weight to this primary consideration.

12. As regards the other primary considerations, the Tribunal does not attach significant weight, in the circumstances of this case, either to the second abovementioned primary consideration or to the third abovementioned primary consideration, but it does attach significant weight to the fourth abovementioned primary consideration, namely, the obligation to have regard to the best interests of the chid – in particular, the applicant’s daughter, [A], aged 2 years and 11 months – which weighs against cancellation of the visa.

    The other relevant considerations

13. As regards the other relevant considerations discussed in paragraphs 69–79 above, although most of those considerations weigh in favour of the applicant, one of those considerations weighs against him, namely, his commission of further offences despite having been formally advised by the Department that such conduct on his part may lead to a reconsideration of whether the visa should be cancelled.  In the Tribunal’s assessment, however, the lastmentioned consideration is clearly outweighed by the collective weight of those other relevant considerations which weigh in favour of the applicant and against cancellation of the visa.

    Conclusion

14. In the Tribunal’s opinion, the primary considerations and the other relevant considerations in this case are finely balanced.  Having considered the totality of the primary considerations and the other relevant considerations in this case, the Tribunal has come to the conclusion that, on balance, they weigh against cancellation of the visa.  More specifically, the Tribunal’s assessment is that the best interests of the applicant’s daughters and the other relevant considerations which clearly weigh against cancellation of the visa outweigh those considerations which weigh in favour of cancellation of the visa, in particular, the protection of the Australian community.

15. In arriving at that conclusion, the Tribunal has given due consideration to the Government’s objective stated in para 5.1(2) of the Direction [41], namely, “to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens”.

16. Although the Tribunal considers that there is a moderate risk that the applicant may re-offend in a serious manner involving violence, the Tribunal is of the opinion that, having regard to all the circumstances of this case, including the obligation to have regard to the best interests of the applicant’s children in Australia, the other abovementioned relevant considerations which weigh in his favour, and his present personal circumstances – in particular, the cessation of his relationship with his former partner (in the context of which his serious offending was committed) and the establishment of an apparently close, loving, committed and stable relationship with Ms Brown with whom he has a young daughter – that risk of re-offending is not such as would be unacceptable to the Australian community.

17. Accordingly, the Tribunal concludes that the preferable decision in this case is that the visa not be cancelled under s 501(2) of the Act.

    Decision

18. For the above reasons, the decision under review is set aside and, in substitution therefor, it is decided that the visa not be cancelled under s 501(2) of the Act.

I certify that the preceding 88 (eighty-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop

........sgd E Jordan..........................

Administrative Assistant

Dated 10 July 2012

Date of hearing	22 June 2012
Representative of the Applicant	Mr M Rothstein
Solicitors for the Applicant	Rothstein Lawyers
Representative of the Respondent	Mr D McLaren
Solicitors for the Respondent	Sparke Helmore