Lafu and Minister for Immigration and Citizenship
[2009] AATA 218
•2 April 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 218
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/0215
GENERAL ADMINISTRATIVE DIVISION )
Re Taumafai Aimahala LAFU
Applicant
AndMinister for Immigration and Citizenship
Respondent
DECISION
TribunalProfessor GD Walker, Deputy President
Date2 April 2009
PlaceSydney
DecisionThe decision under review is affirmed.
…………………[Sgd]………………...
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION – visa cancellation – character test – whether the applicant passes the character test in s 501(6)(a) and (c) of the Act - whether the tribunal should exercise its discretion to set aside or affirm the decision made by the delegate of the minister to cancel the applicant’s visa, applying ministerial Direction No 2 – community protection and expectations considered – best interests of the children considered – other consideration – decision under review is affirmed.
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RELEVANT ACT/S:
Migration Act 1958 (Cth) (the Act): ss 499, 501
CITATIONS
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Re Fifita and Minister for Immigration and Citizenship [2008] AATA 408
Re Baskin and Minister for Immigration and Citizenship [2008] AATA 420
Re Toia and Minister for Immigration and Citizenship [2007] AATA 2078
Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56
Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81
Al-Kateb v Godwin (2004) 219 CLR 562
Re Zhou and Minister for Immigration and Citizenship [2007] AATA 1766
Robtelmes v Brenan (1906) 4 CLR 395
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608
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OTHER AUTHORITIES
Direction No 21
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REASONS FOR DECISION
2 April 2009
Professor GD Walker, Deputy President
Basic facts
1. The applicant Mr Taumafai Aimahala Lafu was born in Niue in December 1970. His family moved to New Zealand when he was seven and he is a citizen of that country. He is not married or in a de facto relationship.
2. The applicant arrived in Australia on 19 May 2007 at the age of 37 and has not since departed. He was granted on entry a class TY subclass 444 special category visa.
3. Between 1987 and 2006 the applicant accumulated a criminal record in New Zealand (G p59), which he did not declare on his incoming passenger card when he arrived in Australia (G pp68, 73).
4. On 9 October 2008 he was convicted in the Queensland District Court at Brisbane of assault occasioning grievous bodily harm and sentenced to four years' imprisonment, to be suspended for five years after serving a minimum of 16 months' imprisonment. The respondent sent him a notice of intention to consider cancellation of visa on 7 November 2008. The applicant’s lawyers, Agnew D’Arcy of Brisbane, responded to the notice by letter of 16 December 2008 (G pp74-79).
5. On 24 December 2008, a delegate of the minister cancelled the applicant’s subclass 444 visa pursuant to s 501(2) of the Migration Act 1958 (Cth) (the Act). The applicant applied to this tribunal for review of the cancellation decision on 16 January 2009.
6. The applicant’s criminal history is as follows:
New Zealand:
13/07/1987 Convicted, possess cannabis, admonished, fined $100;02/09/1987Convicted on three counts of possessing an offensive weapon (other), sentenced to “admonished: social welfare supervision (YC) – 02/09/1987 – 27 days, three months / additional information – ordered 10 hours C/W”;
02/09/1987Convicted of possessing a cannabis plant, admonished and discharged;
05/12/1988Convicted of possessing cannabis, fined $175;
05/12/1988Convicted as minor found in bar, fined $50;
30/10/1989Convicted of wilful damage, $50 reparation order;
06/11/1989Convicted on two counts of wilful damage, fined $100, $50 reparation order;
06/11/1989Convicted of possessing an offensive weapon (other), sentenced to “come up for sentence if called upon – 09/11/1989 – 6 months”;
02/05/1994Convicted of male assaults female (manually), sentenced to 3 months’ non-residential periodic detention;
02/02/2006Convicted of threatening to kill/do grievous bodily harm, sentenced to 9 months’ supervision (SA), special conditions; and
Australia (Queensland District Court):
09/10/2008Convicted of assault occasioning grievous bodily harm, sentenced to 4 years' imprisonment, to be suspended for 5 years after serving a minimum of 16 months' imprisonment.
This conviction related to a crime the applicant committed on or about 4 August 2007, less than three months after he had arrived in Australia on 19 May 2007. Mr Lafu was arrested and taken into custody on 3 September 2007, and the time he spent in custody from 3 September 2007 until his conviction on 9 October 2008 was treated as time served. Thus his earliest release date was 2 January 2009.
The hearing
7. The application was originally set down for hearing on 10-11 March 2009, but the week before, the applicant sought an adjournment as he had just obtained legal aid and more time was needed to prepare his case. I granted an adjournment to 24-25 March, although that left only a few days before the statutory cut-off date in s 500(6L) of the Act.
8. At the hearing, the applicant was represented by Ms Mandy Tibbey of counsel, instructed by Ms Anastasia Toliopoulos of the Legal Aid Commission, while Mr Tigiilagi Eteuati, solicitor with Clayton Utz represented the respondent. The documents before the tribunal comprised the documents produced pursuant to s 501G of the Act (“the G documents”), taken into evidence as Exhibit A1, together with the other documents tendered by the parties at the hearing. The applicant and two others witnesses gave oral evidence in person and two others gave evidence by telephone.
Issues
9. The issues in this case are:
(i)whether the applicant passes the character test in s 501(6)(a) of the Act, given his substantial criminal record as defined in s 501(7) of the Act; and if not,
(ii)whether the tribunal should exercise its discretion to set aside or affirm the decision made by the delegate of the minister to cancel the applicant’s visa, applying ministerial Direction No 21.
Relevant law and policy
10. Under s 501(2) of the Act, the Minister may cancel a visa if the holder does not satisfy the Minister that the person passes the character test (s 501(2)(a) and (b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant grounds in the current matter are paragraphs (a) and (c), as follows:
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For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7); or
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(c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct;
(ii) the person’s past and present general conduct;
the person is not of good character; …
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11. “Substantial criminal record “ is defined in s 501(7)
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(7)For the purposes of the character test, a person has a substantial criminal record if:
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(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more;
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12. Under s 499(1) of the Act, the Minister may give written directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. That includes this tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.
13. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
The applicant’s evidence
14. At the hearing the applicant adopted his statement dated 9 February 2009 (Exhibit A2), in which he began by declaring that the cancellation decision had been unfair and unjust as the respondent had not given his case thorough consideration and had offered insubstantial reasons for the decision.
15. He had been the sole provider for his two children throughout his 18-year relationship with his former de facto, who had in the end departed with his best friend. He was left heart-broken with two children and a mortgage, and no means of financially supporting himself or the children. He over-reacted in his behaviour as any normal human being would in such a situation.
16. He did not find out until five days after his de facto had left where she was and by then he had lost sight of everything and was not thinking straight. He telephoned her and threatened to shoot her. He was feeling angry, hurt and betrayed but did not carry out his threat. He was very remorseful for his actions and he had never behaved in such a manner before. On conviction he had been sentenced to nine months of supervision on condition that he undertake a counselling course, which he gratefully did.
17. He came to Australia to start a new life but mixed with the wrong crowd: “one incident turned what I believed was right into a total nightmare”.
18. He is remorseful for his actions. Being separated from his children for nearly two years was taking its toll on them as well as on him. He is supported by his sister and her husband, who live in Cairns with their children. He also has a brother and his wife and children in Brisbane, who had visited him during his imprisonment. He has a sister in Sydney, and she and her family have been supportive both before and during his incarceration.
19. He considered that he was “just a human being who has made mistakes and I have served time in a prison for that mistake”. The notion that cancelling his visa would be a deterrent and that he is at risk of recidivism was “biased” as it implied that all non-citizens would be regarded as such. “I must also bring to your attention”, he continued, “that I entered a plea of guilty to the offence and that my head sentence was four yrs [sic] and suspended after serving 16 months”. As regards the proposition that the Australian community expects non-citizens to obey Australian laws while in Australia, he countered that “Australian citizens are breaking their own laws of which they are meant to obey”.
20. He objected to being treated as a repeat offender, but his grounds for that are not easy to interpret: “I am being classed as a repetitive offender on the grounds that as a immigrant I should be treated as such and what is written on paper and any relevant documents before you state all these and more”.
21. He has a 19 year-old son in New Zealand whose partner is expecting a child in four months and is struggling to find permanent work to support them all. He also has a daughter aged 17 who is in need of guidance. “To deport me back to New Zealand would not only be detrimental to myself but also cause hardship upon my children and family in New Zealand as well as my family in Australia as I have close bonds to family members here in Australia”, he wrote. Deportation, he thought, is not an option that he is expecting as he has family ties here who have supported him throughout his incarceration.
22. In a letter to the respondent dated 7 December 2008, the applicant outlined his family background and asked to be given the benefit of the doubt as he had “had many knock backs in my life”. To be removed to New Zealand would cause hardship to him and to his children, as they were looking forward to a new beginning in Australia. He feared for their safety and well-being in New Zealand. He believed he could make amends if given the opportunity to live a normal life.
23. In a letter to the department dated 2 November 2008 in relation to his failure to declare his criminal record on his incoming passenger card (G p73), he explained that it was his first overseas trip by air as an adult. Being over-excited, he simply quickly filled in the card and in ignorance did not consider his history as that of a convicted criminal as he had not served a term of imprisonment.
24. At the hearing the applicant said that he was one of seven children in a good family and had been brought up by his parents “in the right way”. He had always been “cheeky” but had got on well with everyone and was quiet at school.
25. His father was a labourer, and he himself had been employed for most of his time in New Zealand. When his son had been born, his de facto spouse had experienced complications, so he devoted himself to full-time care of the child until she recovered. For most of his time in New Zealand he had worked in a laundromat or in dry-cleaning.
26. His early offences resulted from mixing with the wrong crowd. He had ceased using marijuana before his son was born, and at that time also broke away from his previous group of associates. His relationship with his de facto had been a strong partnership until they broke up. The separation had taken him by surprise as he had given her everything. They had just purchased a house and planned to marry in the near future.
27. The 1994 conviction for assaulting a female related to a friend who had been harassing her. He slapped her during an altercation but was remorseful for his actions.
28. After his break-up with his de facto at about Christmas 2005, he had threatened her but had never had any intention of acting on the threat. They are now on speaking terms again for the sake of the children. Following conviction of that offence, he had undertaken a court-ordered anger management course as well as alcohol and drug abuse courses. His son had at that time moved in with his girlfriend, while his daughter had come to live with the applicant and his parents.
29. His failure to declare his New Zealand convictions had resulted from ignorance and excitement, that being the first time he had travelled overseas as an adult. He had thought that it applied only to criminals who had served two or three years in jail.
30. The offensive weapon conviction related to two pairs of nunchakus he was carrying in his pocket when returning from a martial arts class.
31. His Australian conviction stemmed from an offence committed when his drinking was out of hand after his arrival in Australia. He had never done anything like that before and could not imagine doing anything similar again, having addressed his issues. He did not want to return to that situation. The offence was not the result of anger. He would gladly undertake an alcohol course. He had completed stock handling and emergency medical courses while in jail, as well as a course on ending offending behaviours. He had found that course, like the others, helpful.
32. If released into the community he would live with one of his sisters, either the one in Sydney or the one in Cairns, depending on where he could find work. The prospects were better in Queensland, where his former employer would probably take him back. There were also some prospects in Sydney.
33. He did not think he was a danger to the community and asked for another chance to enable him to leave the past behind him. He was a family man and a good employee.
34. Asked in cross-examination about his incoming passenger card, he explained that he did not consider that he had been convicted in New Zealand, as he had only been fined. Not until he had been convicted of the assault female charge did he realise that he had been convicted. Mr Eteuati pointed out to the applicant that when he arrived in Australia in May 2007 he must therefore, by his own account, have realised that he had been convicted. He agreed, but said he thought that it related only to people who had served two or three years' imprisonment, although he acknowledged that there was nothing on the card to give that impression. He denied thinking that his ability to enter Australia might be affected if he declared his convictions.
35. His drugs and alcohol and anger management counselling courses in New Zealand before he came to Australia had lasted for about nine months on a part-time basis. He had undergone about 36 counselling sessions in the course of the program.
36. For a short time after his arrival he drank only a little, but after about a month was consuming more. He had been very drunk at the time of the offence on 4 August 2007. He admitted that he had relapsed despite having nine months of drug and alcohol counselling, but explained that he had associated with the wrong crowd at a time when he had taken up with a new partner a month after his arrival. They were different from the group of associates he had in New Zealand. At the time he was aged about 37.
37. He conceded that after arriving in May 2007, he was already in jail by September. He had denied the grievous bodily harm offence to police, saying he had been an innocent bystander. He had maintained a plea of not guilty for over a year, although the police had told him they had video evidence of his involvement. He did not actually see the video until the sentencing hearing, however. He had maintained the plea of not guilty because he did not understand Australian law and his lawyers had told him to plead not guilty. He did not understand what was happening because he was “going in circles” between solicitors, barristers and legal aid. In New Zealand he had found it easier to plead guilty but in Australia he did not have proper legal representation. He had changed his plea to guilty a week before the trial in the expectation of a lesser sentence. By that time he had been in prison for 16 months and no longer cared.
38. He had left his children in New Zealand when he had come to Australia but had remained in contact by telephone. Their mother was happy for them to move to Australia. Returning to New Zealand was not an option for him at present. Asked if he understood that if unsuccessful in the present application he would probably be returning to New Zealand, he replied that it was a matter between him and his lawyer. If he returned to New Zealand he would be a burden because he would have no financial means of support. He agreed, however, that on release he would be looking for work whether in New Zealand or in Australia. He would also be living in Auckland where his children, three sisters and both parents live, and acknowledged that all are supportive towards him.
39. He did not think they would be able to offer him financial support. Nor did he think they could offer emotional or other support because such matters as convictions and imprisonment were new to them. They found them hard to understand. Living in New Zealand would involve emotional issues for him and he would find it hard to make a living. He agreed that he had been employed for most of his time in New Zealand, but said he would not earn enough to provide for his family. He could earn much more in Cairns than in New Zealand.
40. His attention was then drawn to a passage in Exhibit A2 where he had written that his grievous bodily harm offence occurred when “one incident turned what I believed was right into a total nightmare”. He explained that he had not proof-read the statement and that the words “what I believed was right” should not have been there. After some vacillation he explained that what he had meant that he believed he was “into a right nightmare”.
Observations on the applicant’s evidence
41. In relation to the grievous bodily harm offence for which he was sentenced on 9 October 2008, he sought to explain his maintaining a plea of not guilty for over a year by saying that he did not understand the Australian legal system. When asked what it was about the system that he did not understand, he said he had been “going in circles” between barristers, solicitors and legal aid. It was more straightforward in New Zealand, but here he did not have proper legal representation.
42. At the same time, as the sentencing judge noted (G p64) and the applicant admitted, when interviewed by police he denied any involvement in the crime and said he was a bystander. At the hearing on the present application his explanation for that falsehood was that he had claimed to be innocent because the police had not shown him the video recording proving his active involvement, although they had told him they had a video. Besides being difficult to reconcile with his claim that he pleaded not guilty until a week before the trial because he lacked proper legal representation, that explanation does not reflect well on his veracity.
43. His evidence on a number of material matters was highly implausible:
§He explained his failure to declare his criminal convictions on his incoming passenger card as being due to ignorance and to his excitement at travelling overseas by air as an adult for the first time. Excitement to the degree that would prevent him from truthfully answering a straightforward and important question is hard to believe in a man of 37 with much experience of life. Further, he initially claimed that he did not think he had been convicted and thought the question related to offenders who had served two or three years in jail (although nothing in or about the form provided any foundation for such a belief). Under cross-examination he retreated from that assertion, conceding initially that after his (1994) conviction for assaulting a female, he had understood that he had been convicted. He then conceded that on arrival in May 2007 he had realised that he had criminal convictions, but still maintained that he had thought the only convictions referred to were those resulting in two or three years' imprisonment. He denied concealing his convictions out of concern that they might affect his ability to enter Australia, but that is by far the most likely explanation.
§His explanation for the grievous bodily harm offence committed three months after his arrival in Australia was that he had been very intoxicated at the time. When it was pointed out to him that he had shortly before undergone nine months of counselling in New Zealand in relation to drugs and alcohol, as well as anger management, he replied that he had joined the “wrong crowd” when he had taken up with a woman a month after his arrival. While mixing with the wrong type of associate could help explain some of his adolescent wrongdoing, it scarcely accounts for such gratuitous violence in a man aged 37.
§When his attention was drawn to a passage in his statement (Exhibit A2) referring to the 2007 grievous bodily harm offence where he had written that “one incident turned what I believed was right into a total nightmare”, he said he had not proof-read the statement (he did not say who had typed it) and that the wrong wording had been used. The passage should have read, “I believed I was into a right nightmare”. If one reads the passage as a whole and in context, that is a strained and improbable explanation.
44. The applicant therefore cannot, in my view, be regarded as a reliable witness.
Applicant’s supporting witnesses
45. The applicant’s sister Ms Sala Lafu in her statement (Exhibit A3) and her letter of approximately 10 December 2008 (G p95) wrote that she and her partner Paul Cheeseman wanted to help the applicant and would be prepared to have him live with them and their three children. She understood that the applicant’s main desire is to look after his children and soon his grandchildren. He wanted to bring them both to Australia and it would be hard for him to resume life in New Zealand as he had nothing left from his old life.
46. His daughter Crystal, aged 17, is seven months pregnant and does not have a partner. She wanted to come and live with the applicant, but is currently living with her mother and her new partner (presumably her mother’s new partner). The applicant, to whom she refers as Tom, is worried about Crystal’s welfare because of domestic violence in her mother’s home. Ms Lafu and Mr Cheeseman visit the applicant at Villawood as often as possible, usually every week. She speaks with Tom by telephone, sometimes a few times a day. During their visits to Villawood, Paul and Tom discuss work.
47. While in New Zealand she had observed the applicant to be a loving son and brother and a devoted father. He looked after his children and provided for them.
48. When he came to Australia he found a job within two weeks and sent money to their parents and to his children. He was always very generous.
49. She hoped he would be allowed to stay as she has no other relatives in Sydney. She would like her children to grow up knowing their uncle and hopefully their cousins.
50. Since he has been in Villawood she has found the applicant to be more mature and sure of what he wants in life. He is determined to become a worthwhile citizen, hardworking, law-abiding, and able to look after his family.
51. In her oral evidence Ms Lafu said that while they were growing up the applicant had a close relationship with the rest of the family and they all got on very well. He was a good boy and good at school. No-one in the family had ever been in trouble and their father had worked. She had first come to Australia in 1999, then returned to New Zealand, and subsequently came back to Australia in 2000.
52. While he was in New Zealand she had been in regular telephone contact with him. Since he had come to Australia she had spoken to him on the telephone about five times before he had been imprisoned. After that he had sent them a postcard from jail, but she had not replied to it.
53. Ms Lafu’s partner, Mr Paul Cheeseman, in his statement (G p94) wrote that he had known the applicant for about eight years, although he had met him in person only when he came to Australia to work in Queensland. In their many conversations he had said he was going to give his children a good education and a brighter future. He is truly a family man and always considering others. Mr Cheeseman believed he deserved a second chance as everyone does.
54. Mr Cheeseman wrote that he is an engineering site supervisor in the construction industry and had tried to persuade the applicant to work for their company in New South Wales, knowing that he had previous experience in construction.
55. In oral evidence Mr Cheeseman said he had been in the construction industry for about 10 years, most of that time with the same company, Altius Constructions. He considered the applicant well spoken and happy go lucky and with his solid and strong build, would be well suited for the heavy steel work that his company undertakes. He would work as a labourer or as a tradesman’s assistant. He holds a green card that entitles him to work in the construction industry. He could live in the spare room in their house.
56. In cross-examination Mr Cheeseman said that he had first met the applicant in the course of a visit to Queensland in 2007 and had seen him a couple of times at Villawood, or a total of three times in all. He was aware, however, that Ms Lafu and the nephews had visited him at Villawood a few times (he later said that Ms Lafu visited the applicant weekly and took him food).
57. He was unaware of the applicant’s New Zealand criminal history but the applicant had told him that in Australia he had got into a fight and “was blamed for beating up” a participant. In the course of Mr Cheeseman’s first visit to Villawood, the applicant had told him that the charges had been withdrawn. He had asked him how it had come about that he had to remain in prison, as he could not understand how that could be. Mr Cheeseman did not say whether or not the applicant had answered him.
58. When firmly led in re-examination, Mr Cheeseman conceded that he might have misunderstood what the applicant had told him and that he might have been referring to some prison discipline offences that had been withdrawn. Even knowing that the applicant had been sentenced for assault occasioning grievous bodily harm, he would still endeavour to arrange employment for him. The company had previously taken on a worker with a New Zealand criminal record, and it had worked out.
59. Mr Craig Lovett of Cairns, Queensland, in his statement (G p93) said he is the applicant's brother-in-law and has known him for 15 years. He knows him to be a good family man, and an honest hard worker whom he would trust. He came to Australia to obtain good employment and to bring his children here so that they could have good opportunities and enjoy the great Queensland lifestyle.
60. The applicant had been doing very well at his work and had been offered the opportunity of employment when released in Brisbane through his previous employment agency, Q Tek Labour Hire. There were also enquiries from another labour hire company, Workforce Solutions, about his availability.
61. He and his family were prepared to do whatever it takes to give the applicant a second chance and had even offered him the opportunity of staying with them in Cairns while he rebuilds his life. Mr Lovett could obtain employment for him in Cairns also.
62. In his telephone evidence Mr Lovett said he had come to Australia in 1998, but before then had known the applicant in New Zealand where they had met at family reunions about once a month. After that he saw the applicant each time he returned to New Zealand, and when the applicant came to Australia, he stayed with Mr Lovett and his family, who then lived in Brisbane. Mr Lovett's children are aged 14, 13, 6 and 3. He did not give their names.
63. He had observed the applicant’s conduct to be excellent. He had very good relations with his nephews, who wanted to know when he was returning. When he was in jail Mr Lovett would visit him almost every weekend with his wife and eldest son.
64. The applicant was a “clean guy” and a good worker. He had contributed to family finances when he had been staying with Mr Lovett. He had been starting to socialise with other people in the area and had got along with them. He had been working, and there had been enquiries offering him work on his release. His prospective employers were not necessarily aware of his criminal convictions, although some were.
Psychological evidence
65. Mr W John Taylor, clinical forensic psychologist, prepared a report on the applicant on the basis of a consultation on 18 March 2009 (Exhibit A4). After relating the applicant’s background, and on the basis of a number of tests administered to the applicant, Mr Taylor concluded that he did not appear to have developed a conduct disorder or other behavioural disturbance during adolescence but had some instability in his personality adjustment and some anti-social characteristics. He had an above-average predisposition to engage in substance abuse and to develop dependence on alcohol or illegal drugs. His resources for containing drive and impulse were inadequately developed and he had elevated scores on the scales of anti-social personality problems, criminal history and alcohol and drug abuse. His elevated anti-social personality problems score was due to his sometimes impulsive and risk-taking behaviour.
66. Actuarial analyses indicated a low-moderate risk of recidivism, as did some other relevant tests, while his score in the self-appraisal questionnaire placed him at the lower end of the high-moderate range for recidivism risk.
67. Mr Taylor concluded:
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The results of actuarial analyses indicate that he has a low-moderate risk of recidivism. The factors which have been included in the actuarial analyses have been outlined in Appendix B. The results of psychometric tests administered to him as described above suggest that his risk of re-offending maybe higher than this but if he is motivated for change then his risk assessment would be lower. He recognises that he has a problem with alcohol and has also acknowledged having difficulties with anger management.
If he were to be allowed to remain in Australia it would be strongly recommended that he undertake counselling to assist with alcohol relapse prevention and anger management. Conditions could be placed on any supervision that he would be given that he does not engage in substance abuse, and has counselling for as long as this is deemed to be of help to him.
With regard to the decision concerning his appeal against the cancellation of his Visa there are a coupled of factors that are worth noting. Firstly, he is assessed as having a low-moderate risk of recidivism providing he is able to maintain his motivation not to engage in substance abuse and is able to resolve his mild anger pathology. He stated that he is motivated for change and if his motivation persists he is considered to have quite good prospects for rehabilitation. If this is the case then he would seem to be in line with what would be expected by the Australian community.
Secondly, he appears to be motivated to work and to provide a good environment so that his children are able to come to Australia and settle here. He has good relationships with his sister and brother in Australia and also with his nieces and nephews. He perceives that he will be able to lead a more productive and stable life in Australia than if he was to return to New Zealand (Exhibit A4, pp9-10).
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68. In his oral evidence in chief, Mr Taylor said that the referral of the applicant to a mental health unit where he was placed on anti-depressants for a week (Exhibit A4, para 1.6.2) was consistent with the acute distress he felt at the break-up of his de facto relationship. His threat to his former partner was consistent with that, and he need not have had any intention to act on it.
69. He would benefit from an alcohol abuse course if he were motivated to undertake one, and Mr Taylor saw nothing to suggest that he was not, but he had not explored that matter with the applicant. The fact that he had been deprived of access to alcoholic beverages while in jail did not necessarily mean that he would not relapse after release, but did make it less likely. He would benefit, however, from learning relapse prevention techniques.
70. The DSM-IV states that personality disorders can change once patients enter their 40s and anti-social tendencies can reduce. The applicant cannot be diagnosed as having a personality disorder because there is no evidence of a conduct disorder before the age of 18. He may therefore not have an enduring pattern of anti-social characteristics and was thus more likely to be motivated.
71. Asked about his comment (Exhibit A4, para 2.5) that “When he has not engaged in substance abuse he may be able to exercise adequate control on most occasions”, Mr Taylor replied that it was not possible to guarantee that he or anyone else would exercise adequate control in all cases.
72. To determine the risk of recidivism he had used four accepted evaluation methods, which resulted in the scores shown in the report. There was no evidence of psychopathic or sociopathic tendencies and on actuarial analyses and the SIR-R1 and PCL-R2 tests his score indicated a low-moderate risk. On the SAQ test, however, he was in the high-moderate range, but on the borderline between low-moderate and high-moderate (there is also a low range). His violence risk appraisal guide (VRAG) score suggested a low to low-moderate risk of violent recidivism.
73. Being in employment would be relevant to the applicant’s recidivism risk. It would help his self-esteem and feelings of inclusion, and leave him with less idle time for negative pursuits. His strong family ties would help and overall he had quite good rehabilitation prospects.
74. By his comment that “He has not participated in any detoxification or rehabilitation program” (Exhibit A4, para 1.7.3), Mr Taylor had meant that he had never participated in such a program. Informed that he had undergone and completed such a program over a nine-month period before coming to Australia but had nevertheless relapsed, Mr Taylor said that motivation was a relevant factor as a subject had to be ready for rehabilitation. He would then benefit from such a program, but must receive relapse prevention follow-up. His increasing age could assist him in being motivated, but he does have an above-average predisposition to alcohol or substance abuse. If he were to engage in substance abuse his controls would be weakened (Exhibit A4, para 2.6) and he could re-offend violently.
75. There were several factors that are significant in reducing the risk of re-offending. They are:
§Having accommodation in a stable setting;
§Access to health services;
§Being in employment;
§Access to community involvement; and
§Family support.
76. The applicant had prospects for all of those factors. Being employed was in itself no guarantee against recidivism, however. In New South Wales the overall rate of recidivism was 46 percent within 12 months, although only nine percent of participants in Mr Taylor’s program re-offended within that period. The applicant could join the program if motivated to do so.
Applicant’s submissions
77. On behalf of the applicant Ms Tibbey submitted that the applicant was from a stable home environment. He had stayed with his sister and her family when he arrived in Brisbane and had found work through Q Tek. They were a close family and his sisters would have him live with them if he were released. He had been quiet at school but had unfortunately fallen in with a delinquent group.
78. As regards his New Zealand offences, he had quit using marijuana long ago and had never used other drugs. He had been carrying the two sets of nunchakus in his pocket because he had just participated in a martial arts class, but should have carried them in a bag. He was also found in a bar. The light sentences showed that his offences were not serious.
79. His adult offences consisted of damaging a street sign, removing from it a piece of wood that was the subject of an offensive weapon charge. He had never in fact used the weapon against anyone. The assaulting a female charge arose from a slap inflicted in the course of an altercation and the threat to kill his former de facto followed the break-up of their relationship. He was shocked at the time but owned no gun and did not act on the threat. None of his New Zealand charges involved physical violence or the use of weapons. He had led a pretty quiet life, had never been violent to his de facto and had no alcohol offences.
80. His Queensland offence was a very stupid act committed after he had consumed 20 drinks. He became involved in a fight, but had not initiated it. The victim’s injuries might have been contributed to by the blows he had suffered before falling to the floor. Mr Taylor had thought his regret and remorse over that offence were genuine. Alcohol had been a very big factor in the offence. He had never been involved in any bar violence previously.
81. If he were to remain in Australia he could join Mr Taylor’s program, and said that he would be willing to do so. He could earn a better income here and his family’s best interests were served by his remaining. He would pay for his children to visit him if they did not wish to move to Australia.
82. His daughter Crystal is currently living with her mother and his son Peter is with his girlfriend. He has a strong relationship with his children and has remained in telephone contact with them. He is also close to his sisters’ children.
83. He would have a close relationship with his children whether he was here or in New Zealand, but he prefers to live in Australia. He has strong ties in both countries and his family links are a great support to him.
84. There would be a great difference between a voluntary decision to return to New Zealand and a criminal deportation. He should be able to choose the course of action that is in his own best interests.
85. In relation to the 2008 conviction, Mr Cheeseman had said the applicant had told him the charges had been dropped. Although there is no record of any disciplinary charges against him while in jail, there could have been internal charges that had been discontinued. That may well have been the reason for the applicant's statement that the charges had been dropped. The applicant's evidence is that he was a quiet inmate in prison and undertook a number of courses.
86. As regards the risk of recidivism, the five important factors mentioned by Mr Taylor, including accommodation and employment, were present in this case. Mr Taylor said the applicant has good motivation and rehabilitation prospects.
87. His supporting witnesses show that he benefits from strong family support. His problem was to have mixed with the wrong type of person. As he had no access to alcohol during his incarceration, any relapse after release was less likely. He had no convictions in New Zealand for alcohol-related offences.
88. While it was never possible to say that an offender was at no risk of recidivism, Mr Taylor had concluded after a realistic assessment validated by tests that the risk of recidivism was low and could fall still further when the applicant entered his 40s.
89. The applicant's principal offence was very serious, but was related to alcohol and was not premeditated. His New Zealand record was at the lower end of the gravity scale and he had never formed part of a gang. His family provided a stable bedrock for him and the level of risk was acceptable.
90. The present case was similar to Re Fifita and Minister for Immigration and Citizenship [2008] AATA 408 in which the decision cancelling the applicant’s visa had been set aside because of his progress in rehabilitation and his role as carer for his disabled brother. The applicant’s record was much less serious than that of the applicant in Re Baskin and Minister for Immigration and Citizenship [2008] AATA 420, which had a similar result, and the applicant's record was also less serious than that in Re Toia and Minister for Immigration and Citizenship [2007] AATA 2078 in which the reviewable decision had been affirmed.
91. The applicant thus deserved a second chance, as Mr Cheeseman’s company had given another person with a New Zealand criminal record a second chance. He had strong ties to the Australian community through his family network, and also had strong ties with New Zealand, as many Australian residents do.
92. Given the lack of publicity about the matter, and the lack of any gang involvement, cancelling the applicant’s visa would have no deterrent value.
93. As regards the best interests of the children, the applicant had a strong bond with his nephews and nieces. Ms Tibbey said that was as high as she could put it, as the applicant was not the children’s primary carer.
94. The applicant had received no previous warning of possible visa cancellation. This was a one-off offence, because it was his only act of violence except for the slap and the threat in New Zealand. He had not been involved in fights or in alcohol offences. The Queensland offence was out of character; he has since changed his life and does not want to repeat such conduct. While Mr Taylor had said it was never possible to guarantee that anyone would not re-offend, the applicant was well motivated and growing older. He was at low risk of re-offending.
95. Merely because his earlier treatment for alcohol abuse had failed, that did not mean that he would fail again, as he was now more motivated.
96. He would like his children to come to live in Australia, but could not force them to do so. They could, however, come over to visit him if he remained in Australia.
Application of the Law and Findings of Fact
97. As was stated above, the first issue for me to decide is whether, pursuant to s 501(6)(a), the applicant passes the character test having regard to his substantial criminal record within the meaning of s 501(7).
98. Secondly, I am required to have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If I decide that the applicant does not pass the character test, I must consider whether to exercise the discretion in s 501(2) to cancel the applicant’s visa. In so doing, I must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.
99. In this case the applicant does not pass the character test because of his “substantial criminal record” within s 501(6)(a) and (7). He was sentenced on 9 October 2008 to four years' imprisonment, to be suspended for five years after serving six months' imprisonment.
100. I must therefore consider whether to exercise my discretion under s 501(2) to decide whether to cancel the applicant’s visa. In exercising that discretion, the tribunal has regard to Part 2 of Direction No 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
…
Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
…
101. Paragraph 2.3 sets out the primary considerations:
…
In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
…
Paragraph 2.4 explains:
…
The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community.
…
102. Examples of what the government views as serious offences are set out in paragraph 2.6. This includes, in subparagraph (f), crimes of violence against persons. Paragraph 2.8 requires decision-makers, when exercising this discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.
103. With regard to paragraph 2.5(b), likelihood that the conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.11, general deterrence, “aims to deter other people from committing the same or a similar offence”.
Protection of the Australian Community
104. The first issue to be discussed under this heading is the seriousness and nature of the conduct. It is necessary to apply Direction No 21, which was made pursuant to s 499 of the Act. The direction, which is binding on this tribunal, states in paragraph 2.6(f) that crimes of violence against persons are to be treated as very serious. In this case, the applicant was convicted on 9 October 2008 of inflicting grievous bodily harm and was sentenced to four years' imprisonment, to be suspended after 16 months for five years. The time spent in custody on remand awaiting trial was credited for that purpose. In his sentencing remarks, Forde DCJ had this to say:
… You were in Australia for some three months at the time of this offence. The video shows clearly what occurred. Mr Martin, who appears to have been in your group, and the complainant, for some reason got into a fight. They both threw punches. Mr Martin knocked the complainant to the ground.
A security officer came over to help the complainant who appeared to be unconscious. You then walked up to the complainant and stomped on his face, probably once. A cracking sound was heard. The injuries included a mild closed head injury; LeFort type 1 fracture, a bilateral orbital floor blow-out fracture and a disruption of the nasoethmoidal complex affecting the nasal septum in the right lateral nasal wall.
The complainant had to be incubated [intubated?]. He was transferred to a neuroscience unit and assessed. He could not remember the events. He was reviewed both in the Acquired Brain Injury Outreach Centre and the Maxillofacial Outpatient Clinic, with some numbness on the right side of his face, a type of neuralgic type pain. The Government Medical Officer was not of the view that the injuries, if left untreated as such, were likely to endanger life or cause permanent injury, but the fact of the matter is that permanent injuries have resulted, and you have shown some co-operation in the administration of justice – although this matter was set down for trial this week – by pleading at the late point and accepting that the complainant has suggested in his victim impact statement that he has a permanent metallic hint to his food and also odours when he smells. His sinus is a problem with his left nostril continuously producing mucus that has a projectile effect when he sneezes or coughs. His jaw locks from time to time, causing momentary pain. For the first few months after this event he was fearful of going out, and he became less sociable. He says that the physical and mental problems have affected his career as a plasterer.
…
… When interviewed by police you initially denied any involvement. You said you were a bystander. Obviously, the video shows your involvement, committing an unsolicited, unnecessary, gratuitous act of violence by stomping on the head of a person unconscious on the ground on his face as he lay there in the prone position (G pp63-65).
…
105. In his lengthy statement (Exhibit A2), all the applicant had to say about this principal offence was that “one incident turned what I believed was right into a total nightmare”. In his oral evidence at the hearing he added little to that description (which he sought to modify substantially), saying only that he had been very intoxicated and had been associating with an undesirable group at the time.
106. In his interview with Mr Taylor he told the psychologist that “he had attempted to help his friend who had become involved in a fight” (Exhibit A4, para 1.9). That is inconsistent with the facts as found by Forde DCJ, which show that the victim was at the time unconscious on the ground and a security officer was trying to help him. It was at that time that he walked up to the victim and stamped on his face. His Honour described it as “an unsolicited, unnecessary, gratuitous act of violence by stomping on the head of a person unconscious on the ground on his face as he lay there in the prone position”. The assault caused the victim permanent injury and has affected his ability to work.
107. On behalf of the applicant Ms Tibbey submitted in mitigation that the attack was not premeditated and that the applicant did not start the fight, which would appear to be true. She further submitted that he was intoxicated at the time. That is not a mitigating factor, but it may have relevance to the question of recidivism. It was also submitted that while his assault might have contributed to the victim’s injuries, he might already have suffered injury because of the punches he had received before falling to the ground. While that is possible to a degree, Forde DCJ noted that when the applicant stomped on the victim's face, “A cracking sound was heard”, which suggests that the more serious injuries suffered by the victim resulted from the applicant’s assault.
108. Counsel also pointed out in mitigation that the offence did not form part of any gang crime. While that may be so, it may be noted that the applicant himself said he had been mixing with the wrong crowd and the Queensland offence was committed by the applicant in conjunction with another member of that group. In that sense the offence had elements of collective action.
109. In all, the applicant’s Australian criminal record must be regarded as very serious and the sentence imposed supports that.
110. The next issue for the tribunal to consider is the risk of recidivism. The applicant has only one Australian conviction. But as President Mathews J said, “Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending” (Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56 at [51]). Besides his Queensland conviction, the applicant accumulated a substantial criminal record in New Zealand before coming to Australia. In addition, by falsely stating on his incoming passenger card that he had no criminal convictions, the applicant may have infringed s 234(1)(c) of the Act, which is a serious offence in itself, carrying a maximum penalty of 10 years' imprisonment.
111. While in prison in Queensland he undertook some useful vocational courses and a program on ending offending behaviour. Previously in New Zealand he completed a nine-month part-time course dealing with anger management and drug and alcohol abuse. Nevertheless, shortly after arriving in Australia, he resumed heavy drinking and seriously re-offended.
112. There are no custodial charges recorded against him and he appears to have been a quiet prisoner.
113. The sentencing judge expressed the view that “it is probably desirable that you go back and join your family to get some more stability in your life in New Zealand” (G p65). That view, while entitled to great respect, is not binding on this tribunal.
114. The applicant does have prospects of employment in Australia and is regarded as being motivated to work. As counsel submitted, he also has the benefit of the five factors that Mr Taylor said were significant in reducing the risk of re-offending. But as Mr Eteuati pointed out, the applicant also had the benefit of those factors both in New Zealand and in Australia before offending in 2007.
115. The applicant also displays a tendency to deny or minimise his wrongdoing. He implausibly denied any intention to deceive when he concealed his New Zealand criminal record on entry to Australia. He told Mr Taylor that the Queensland offence occurred when he had attempted to help a friend who had become involved in a fight, but it is clear that the fight had ended, that the friend was in no need of any assistance if he ever had been, and that the applicant’s violence was gratuitous. In his written statement he appeared to describe the assault as justified, and his attempt to retract that statement at the hearing was contrived and unconvincing. He described the cancellation decision as unfair and unjust and stated, both orally and in writing, that returning to New Zealand was “not an option” for him and that whether he would leave Australia if unsuccessful in the present application was a matter between him and his lawyer. None of that is encouraging from the rehabilitation perspective.
116. Again, Mr Cheeseman testified that when he first visited the applicant in jail, the applicant told him that he had been imprisoned because he had got into a fight and been blamed for beating someone up, but the charges had been withdrawn. In re-examination, after being pressed with a series of leading questions, Mr Cheeseman conceded that he might have misunderstood the statement and that it might have referred to some prison charges that had been withdrawn. But there is no evidence, whether from the applicant or from any other source, of any such charges or their withdrawal. The applicant’s own account was that he had been a quiet prisoner. Mr Cheeseman seemed a straightforward and well-meaning witness. As he remembered the conversation, it appeared to be about the reasons for the applicant's incarceration. He said he asked the applicant how it was that he had to remain in prison if the charges were withdrawn, as he did not understand how he could still be there, but there is no record of the applicant’s reply, if any.
117. Mr Cheeseman’s evidence on this point is to be preferred and indicates that the applicant in effect told his de facto brother-in-law that he was innocent of his principal offence.
118. The applicant submitted that the psychological report by Mr Taylor showed that he was at low risk of recidivism. Actually, the report rates him as being at low-moderate risk at best, with the SAQ test placing him at the lower end of the high-moderate range. There is a low risk category on these scales, but the applicant did not qualify for it.
119. The report was also qualified in a number of respects. It noted that he had some anti-social personality problems (Exhibit A4, pp6-7), instability (p6), inadequately developed resources for controlling drive and impulse (p6), and mild anger pathology (p9). He displayed an above-average predisposition to engage in substance abuse and to develop dependence on alcohol or illegal drugs. While the actuarial analyses indicated that he had a low-moderate risk, the psychometric tests suggested that his risk might be higher than that (p9).
120. The report sees grounds for an optimistic prognosis but only on certain conditions: he would need to be motivated for change, undertake counselling to assist with alcohol relapse prevention and anger management, and be able to maintain his motivation not to engage in substance abuse and was able to resolve his mild anger pathology. He stated that he was motivated to change and that if his motivation persisted he could be considered to have quite good prospects for rehabilitation (Exhibit A4, p9). He appeared to be motivated to work (p10).
121. The psychological report deserves to be given weight, but it is not conclusive on the question of recidivism. It is to be considered in conjunction with all the relevant evidence.
122. The applicant received quite lenient treatment from the courts until his most recent offence, and underwent a nine-month part-time course covering alcohol and substance abuse and anger management in New Zealand, but nevertheless relapsed, despite being in favourable circumstances.
123. The risk of recidivism need not be high in order to weigh in favour of visa cancellation. As President Davies J noted in Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81, even if the risk of recidivism is not high, it will strongly support deportation when recidivism, if it does occur, may cause great harm. The applicant's offending has already caused one Australian to suffer permanent disability and any risk of similar conduct in the future must be given appropriate weight.
124. In relation to the protection of the Australian community, the tribunal is also required to consider the question of general deterrence, the likelihood that visa refusal would prevent or inhibit the commission of similar offences by other persons: Direction No 21 paragraph 2.11. The deterrent effect of a particular decision is impossible to prove in advance. The concept can perhaps also be expressed in positive form by saying that if bad behaviour is rewarded, there will be more of it. That is a principle well known to parents, teachers, managers and most other members of the community.
125. Its incorporation in Direction No 21 may be simply a reflection of the need for decision-makers to consider the long-term effects of their decisions, not merely the short-term results. While visa cancellation is not intended as a punishment, para 2.11 of the direction plainly contemplates that the prospect of it will operate to deter similar conduct in much the same way as the threat of punishment does.
126. As Callinan J observed in Al-Kateb v Godwin (2004) 219 CLR 562 at 659, “Deterrence may be an end in itself unrelated to a criminal sanction or a punishment. Deterrence can, for example, be an end of the law of tort”.
127. While general deterrence cannot be a decisive, or even a substantial, factor in the exercise of the discretion, it is a factor that must be taken into account.
Expectations of the Australian Community
128. With regard to the second primary consideration, the expectations of the Australian community, paragraph 2.12 of Direction No 21 states in part that:
…
Visa refusal … may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia.
…
129. It has long been accepted on all sides in Australia that migration must be conducted in a legally regulated manner. Historical, economic and other reasons have also been advanced: Re Zhou and Minister for Immigration and Citizenship [2007] AATA 1766 at [90] to [99].
130. In Al-Kateb, Hayne J observed that in one of its earliest decisions (Robtelmes v Brenan (1906) 4 CLR 395), the High Court had held that it is an attribute of sovereignty that every nation state is entitled to decide what aliens shall or shall not become members of its community (219 CLR at page 632).
131. Callinan J added that entering aliens are taken to know and accept “as a term of admission” that restraint to the extent necessary to enable deportation to be imposed on them (at p658).
132. At the same time, there is an expectation in the community that migration law will be administered fairly and humanely (Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at [34]). A further limiting factor is that one should attribute to the community knowledge of the whole of the evidence before the tribunal (Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458, at para 7(m)).
133. In my view the community would expect that the visa of a person with a serious criminal record, who is assessed at being some risk of re-offending and who shows little evidence of stable and lasting rehabilitation should be cancelled. That view would not be mitigated by the knowledge that the applicant in his incoming passenger card declaration had denied having any criminal convictions.
The Best Interests of the Child
134. The third primary consideration is the best interests of the child. The tribunal is guided on this question by the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In Wan at paragraph 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa and, second, “to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration”. I also note paragraph 2.16 of Direction No 21, which sets out considerations that the decision-maker must take into consideration when considering the best interests of a child including the duration of the relationship between the non-citizen and the child and the length of any separation and reasons for that separation (paragraph 2.16(b)).
135. The applicant has one child under 18, his daughter Crystal, aged 17, who lives in Auckland with her mother. She is not an Australian citizen. She is currently in an advanced stage of pregnancy and has no partner. The applicant left her behind when he came to Australia but says he would like to bring her to Australia to live. As there is no evidence of any kind from Crystal or her mother, her present intentions and preferences cannot be known with any certainty. Crystal will turn 18 in a little over four months from now.
136. The applicant has a good avuncular relationship with his nephews and nieces in Australia, specifically the children of Ms Lafu and Mr Lovett. Apart from the youngest, the elder children in that family either knew the applicant before they came to Australia in 1998 or have met him during their periodic visits to New Zealand with their parents. There is no evidence that they suffered any detriment from his being in New Zealand while they were in Australia.
137. All the nieces and nephews are apparently living with both their parents and there is no evidence to show that they need the applicant’s care.
138. The applicant has three sisters living in Auckland, one of whom has seven or eight children. Presumably it would be in the interests of the nieces and nephews in New Zealand to be able to develop a relationship with the applicant in New Zealand.
139. Visa cancellation in this case would not involve any question of separating an applicant from his or her children. His sister said that his main desire is to look after his children and soon his grandchildren, and it might well be in the interests of Crystal and of the prospective grandchildren if the applicant were to return to New Zealand. I therefore find that the best interests of the children do not weigh against visa cancellation in this case.
Other considerations
140. With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, “it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations”. These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; and any evidence of rehabilitation and any recent good conduct.
141. The applicant has not previously been warned about the possibility of visa cancellation. He does not have any business or similar ties with the Australian community that would be disrupted by his removal.
142. The applicant has three siblings with children in Australia and also three siblings with children in Auckland. Both his children and both his parents live in Auckland. Unlike the position in Fifita, there is no-one in Australian who is dependent on him. While his extended family members in Australia might suffer some emotional hardship from his removal, that might be offset by the benefits to his closer family members in New Zealand. Forde DCJ also suggested that the applicant’s rehabilitation might be assisted by the greater stability he might find by being among his immediate family.
143. He has made some progress towards rehabilitation and has undertaken appropriate courses while in custody. The progress is still somewhat fragile, however, more so than was the case in Fifita, and much more so than in Baskin. Mr Taylor stressed that considerable follow-up action and counselling were needed to give him the techniques with which to resist relapsing. He has a good attitude to work and prospects of employment in Australia, but he was also fully employed for most of his time since school in New Zealand.
144. His recidivism risk is assessed at low-medium or medium-high, as against the implicitly low risk in Fifita or the very low risk in Baskin.
145. Overall, he has no strong connection with Australia. He was aged 37 at the time of his arrival and has mostly been in jail since then. He is not married to, or in a de facto relationship with, any Australian citizen or permanent resident.
146. In my view the best interests of the child are a neutral factor in this case. The primary considerations of community protection and expectations outweigh the other considerations. The decision under review is affirmed.
I certify that the 146 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: [Sgd]..............................................................................
Renee Wallace, Associate
Date/s of Hearing: 24, 25 March 2009
Date of Decision: 2 April 2009
Solicitor for the Applicant: Ms A Toliopoulos, Legal Aid Commission
Counsel for the Applicant: Ms M Tibbey
Solicitor for the Respondent: Mr T Eteuati, Clayton Utz
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