Matiu and Minister for Immigration and Citizenship

[2012] AATA 31

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2012] AATA 31

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/4844

GENERAL ADMINISTRATIVE DIVISION		)
Re		Frank Makere Matiu

Applicant

And Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date11 January 2012

PlaceMelbourne

Decision The Tribunal sets aside the reviewable decision dated 7 November 2011 and in substitution decides that the Applicant’s visa should not be cancelled.

(sgd) John Handley

Senior Member

MIGRATION ‑ visa cancellation ‑ Applicant convicted of assault ‑ substantial criminal record ‑ fails to pass character test ‑ discretion to cancel ‑ whether cancellation in the national interest ‑ Direction 21 – balancing of primary and other considerations – decision set aside

Migration Act 1958 s 501

Rosson v Minister for Immigration and Citizenship [2011] FCA 194

Schuster-McFadyen v Minister for Immigration and Citizenship [2011] FCA 1303

REASONS FOR DECISION

20 January 2012 Mr John Handley, Senior Member           

1.The Applicant is a citizen of New Zealand who first arrived in Australia on 24 August 1990. He has subsequently lived in Australia lawfully by virtue of a class TY subclass 444 Special Category (Temporary) Visa.

2.On 22 July 2010 in the County Court of Victoria, the Applicant was convicted and sentenced to a period of four years and nine months imprisonment for intentionally causing serious injury.

3.On 7 November 2011, a delegate of the Minister of Immigration and Citizenship (the Minister) decided to cancel the Applicant’s visa pursuant to s 501(2) of the Migration Act 1958 (the Act) on the basis that the Applicant had been sentenced to a term of imprisonment of 12 months or more, he had a substantial criminal record (s 501(7)(c)) and, did not pass the character test (s 501(2)).

4.The Applicant applied for review of the Minister’s decision. In conducting the review, I must comply with the discretion limited by the operation of Direction [no. 41] – Visa refusal and cancellation under s501 (Direction 41) which was issued by the Minister pursuant to s 499(2A). I will return to the provisions of Direction 41 later in these reasons.

5.The application was heard on 11 January 2012. The Applicant was represented by Ms Taylor of Counsel. The Minister was represented by Ms Graham, a solicitor. A number of documents were lodged by the Minister’s representative as required by s 501G of the Act (G-documents). Evidence was heard from the Applicant and Mr Raymond Reiffel.

6.The Applicant conceded that he did not pass the character test because of his substantial criminal record as defined in s 501(7) of the Act. Therefore, the only issue before me is whether the discretion to cancel his visa should be exercised.

The circumstances of the offence

7.The Applicant pleaded guilty to one count of intentionally causing serious injury.  In his Reasons for Sentence dated 22 July 2010, Judge Tinney set out the circumstances of the offence as follows:

On Monday, 6 April 2009, as of that date you had been in a relationship with your victim Ms [S] for about a year and a half. You had been living in a shed at the rear of a property at … Reservoir, for about three months. On the Monday morning, this is the 6 April of 2009, at about 6am you and Ms [S] commenced to drink and smoke marijuana whilst in the company of others at the Preston Football Oval. Much later that day, it would seem closer to 8 o'clock in the evening, though I accept that timings are very much approximate is in this case, it seems to me, the two of you returned to the shed at the back of … Reservoir, where you continued to drink alcohol and  smoke marijuana.  Ms [S] by this stage, was drunk and it seems clear enough that you were likewise, very heavily affected by both alcohol and the ingestion of cannabis. At one point you started questioning her about a male friend that she had and it is clear that you were implying that there had been some inappropriate touching between the two and were asking her about that. There had not been any such event and she rejected the suggestion. Not content with her denials, you then launched an attack upon her. You called her a slut and without any warning you started to attack your victim punching her hard to the face and to the head. The force of the punches caused her to fall backwards onto a mattress on the floor within the shed. She tried to get up to run out of the shed towards the house to seek help. You caught her. You grabbed her by the hair. You dragged her back to the shed by the hair. You then threw her down on the mattress and ripped her clothes off while continually calling her a slut. You then bit her very hard all over her body causing her to bleed and you continued to punch her to her face and to her body. The worst of the bite marks were on her head and upper lip. Ms [S] describes not been able to move during the attack and you had her, as she describes it pinned down and were leaning over her. She was screaming for help but no one came to her assistance. You grabbed her by the throat at one point and started to choke her. You then ceased the attack and grabbed a sleeping tablet. You forced her mouth open. You placed the tablet into her mouth and forced her to swallow it… (G‑documents, p 59‑60 at [3])

EVIDENCE

Frank Makere Matiu

8.The Applicant was born on 16 September 1965 in Kaitaia in New Zealand. He has remained in Australia since his arrival in August 1990 but for a period of two weeks in February 2003 when he returned to New Zealand for the funeral of an uncle.

9.In September 1987 the Applicant married in New Zealand.  He came to Australia in 1990 and his wife and children followed later. There are three adult children of the marriage. Two children live in Queensland and one child lives in New Zealand. The Applicant has not had any contact with his children for many years. He and his wife are divorced.

10.In his statement dated 15 December 2011 (Exhibit A1), the Applicant recorded that he was raised by an uncle after the death of his father when he was aged seven. He then lived in a male dominated environment and was scared to express his feelings. He was proficient in sports and eventually he was selected as a member of the Under 21 All Blacks rugby union team in New Zealand. After migrating to Australia in 1990, he found employment and also played A grade rugby league for Arncliffe and then for the St George team in Sydney.

11.In 2000, the Applicant's mother died.  He decided to remain in Australia and continued to work and play sport and provide for his family. As a result of not returning to New Zealand for her funeral, he recorded that other family members to this day are still not happy with (him). He said his mothers’ death had a devastating effect on him and his inability to grieve and express his feelings contributed to the breakdown in his marriage.

12.The Applicant recorded that he returned to New Zealand in 2003 when his uncle died but found that he was not welcome home anywhere in the North Island. He then realised that he had spent many years in denial and felt tormented and abandoned. He then began drinking alcohol to numb some of the emotional pain but alcohol was not producing the desired affect and he started using drugs, both illegal and prescribed.  He regarded himself then as being in self-destructive mode.

13.The Applicant recorded that his behaviour giving rise to the offence of intentionally causing reckless injury was totally out of character and it astonished his friends and acquaintances. He said that he had never previously been violent and remains truly remorseful for the injuries that he caused to his victim.

14.If he is required to return to New Zealand, the Applicant recorded that he would suffer a major effect (sic) and would be set up for failure. He said that he has remained in Australia since 1990 and now knows nothing about New Zealand. He recorded that he has no family left there that want anything to do with (him). It is his intention to obtain stable accommodation and return to full-time employment. He hopes to reunite with his two children living in Queensland and will attempt to reconnect with them. He also intends to continue to have counselling that commenced whilst in prison.  The Applicant emphasised his desire to remain in Australia and recorded that he was prepared to do so on a probationary basis if required.

15.In evidence, the Applicant reaffirmed the contents of his witness statement and gave greater emphasis to a number of issues in it.

16.He confirmed that he was selected to play for St George rugby club in Sydney during which time he also held between two and four jobs. He worked between Monday and Friday and played rugby on Saturday and Sunday. He acknowledged that he spent few hours at home because of his work and sporting commitments.  He said that he could not see at that time that his family was being torn apart by his work and his sport. The Applicant said that he was a better father that he was a husband and expressed his regret at the loss of contact with his children.

17.The Applicant said that his personal circumstances between 2000 and 2003 significantly influenced his relationship with Ms S. In 2000 the Applicant's mother died. In 2003 the Applicant was divorced and his uncle in New Zealand died. In 2003 conflict with other family members in New Zealand became apparent when he returned to his uncle's funeral. It then became obvious to him that he was largely being abandoned by his family because he did not return to his mother's funeral. He said these events were influencing his emotional state at that time.

18.The Applicant acknowledged that he entered into a rapid spiral of decline from about 2003. Although he smoked marijuana before 2003, he did not take any other drugs. When he returned to Australia after his uncle’s funeral, he started to use heavier substances because alcohol and marijuana were not giving him the emotional comfort that he was seeking.

19.It was in 2003 that he commenced the relationship with Ms S, albeit reluctantly.  He was not ready for a relationship because of his personal circumstances and emotional state at the time.  In hindsight, he felt that pursuing the relationship in those circumstances was unfair on Ms S.  The Applicant said that he did not want to have a relationship with her but she had encouraged it. He said that she was also under the influence of drugs and alcohol.

20.When the Applicant reflected on the assault he said I don't feel really good. He said he has to try and put it aside. He also acknowledged that he has thoughts daily of the hurt that he caused her and he said that he prefers not to think and talk about it and he wished he could talk with her. The Applicant said that he did see Ms S at the Committal hearing but on the advice of his barrister, he did not talk with her. He said that all she can see in me is anger and hate.

21.When I asked the Applicant what he would like to say to Ms S if he had the opportunity, he said that he would tell her that he was sorry for what (he) did, that there was no excuse and he would ask her to one day forgive him. He regretted having put her through that.

22.Since he commenced his term of imprisonment, the Applicant said that he has been drug and alcohol free. He ceased cigarette smoking approximately 10 months ago. He successfully completed various anger management and drug and alcohol rehabilitation programs.  He also completed a number of work skill courses to assist him to reintegrate when released from prison.

23.The Applicant said that he no longer thinks about drugs or alcohol and acknowledged that jail got [him] cleaned up which he said was a good thing. While in jail he got fit, he read, attended church and learnt yoga. All drug screening of him in jail produced negative results. He also had extensive psychiatric and psychological treatment and counselling, often on a daily basis. He was given prescribed medication because he understood that he had been diagnosed with drug induced psychosis.

24.Now he feels as if he is able to have normal conversation with persons.  He said that he feels as if he is starting again – like a baby crawling, learning to walk.

25.He continues to have psychological treatment. His term of imprisonment expired four days before the hearing.  He was then in detention at the Maribyrnong Immigration Detention Centre.

26.In the event that the Applicant is permitted to retain his visa, he said he would seek to obtain stable employment and accommodation. He would also seek guidance, especially from Mr Reiffel and he would attempt to connect with his children.

27.The Applicant acknowledged that he does need to adjust to life as a civilian. While travelling to the hearing, he noticed that during the time that he had been drug affected and subsequently incarcerated, there had been a number of significant changes in the community.  For example, the introduction of 3D television, multiple telephone networks and the price of petrol. He also said that he had learnt to use the e-mail and had been issued with an e-mail address.

28.When asked how he would deal with stress or conflict now, he said he will deal with it carefully and will work closely with Mr Reiffel on those issues to avoid reacting negatively, as he had done so previously. He said that he would want Mr Reiffel to hold his hand for a while, even when purchasing items from a shop. He said he will need to take little steps and he did not want to rush.

29.In cross-examination the Applicant's attention was drawn to paragraph 4 of Judge Tinney’s reasons, where he recorded:

…Her pillow was covered in blood and she told you that your relationship was finished, citing an occasion where she had told you previously that if there was any repetition of any attack upon her that she would leave you.

30.The Applicant acknowledged that those remarks were contained in the reasons but at that stage of the hearing I cautioned him and gave him the opportunity, which he accepted, to seek advice from Ms Taylor. I adjourned the hearing temporarily and when the hearing resumed, Ms Taylor indicated that her client did not want to answer the question on the basis that it might incriminate him. She also submitted – and I agree – that there was no evidence that Ms S had ever previously been injured by the Applicant. Additionally, there was no evidence from the Applicant or Ms S in relation to this issue and in the circumstances, no inference or prejudice should be drawn against the Applicant.

31.In answer to some questions from me, the Applicant said that he was removed from the care of his mother at the age of seven when his father died. He said his grandmother took him away and placed him in the care of an uncle. He said that his mother was denied the opportunity to resist or protest the intervention of his grandmother. He said that what had happened to him was consistent with Maori culture and that his grandmother was a medicine woman and his mother could not argue with her. He remained in the care of that uncle for about twelve months but during that time he was abused by him.  He was taken away from that uncle and placed in the care of another uncle with whom he lived until he was a teenager.

32.The Applicant's mother died in 2000.  The Applicant said that he had little contact with her after the age of seven until the year before her death when she travelled to Australia to visit him. On reflection, he thinks that his mother then knew that she was terminally ill and wanted to reconnect with him before she died. Nonetheless, the Applicant did not return to New Zealand for her funeral, preferring to remain in Australia to continue to work and earn income.

33.The Applicant did return to New Zealand to attend the funeral of his uncle in 2003. He said he knew that he would be regarded as an outcast by family members. Although he was permitted to stay with an uncle in New Zealand, he said that the uncle would not feed him and he caused him to sleep on the floor. Despite the Applicant notifying his uncle that he wanted to reunite with his family, it was made very clear to him that he was not welcome. The Applicant did take the opportunity to visit the grave of his mother and said he was then able to communicate with her.

34.The Applicant said that he is a member of the NGA-PUHI Maori bloodline. The effect of that and the expressed preference of his late mother was that he would ultimately inherit her home. He also understood that the home was never to be disposed by him and it was to be retained for the benefit of her grandchildren. The Applicant said he understood that the Title to that home had been transferred to him, but as he was questioned about the possibility of living in it if he returned to New Zealand, he said he was no longer sure whether in fact it was registered in his name. He said the home is presently occupied by two of his sisters with their respective husbands and children. He said that he could not return to the home because they would not welcome him.

35.The Applicant said that he now regards Australia as his home and he is an Aussie.  He said that when others speak with him and detect his accent and suggest that he is a Kiwi he said l don’t feel that. The Applicant said that he wants to obtain the citizenship paper.

Raymond Reiffel

36.Mr Reiffel graduated from Melbourne University in 1977 with a degree in social work.  From 1978 he was employed by the Victorian Department of Human Services. For 20 years he practiced as a social worker in juvenile justice in Victoria. He retired but returned to the workforce and has subsequently been employed by Jesuit Social Services at the Brosnan Centre in Brunswick where he has been engaged with pre and post release adult prisoners. He is also the manager of one of the four Link Out programs which are a Victorian initiative, funded by the Department of Community Corrections.  The programs assist the rehabilitation and integration of prisoners on their release from custody.

37.In a statement of 4 January 2012 (Exhibit A2), Mr Reiffel recorded that pending the outcome of this review, arrangements which would normally be put in place to locate accommodation, counselling and employment for the Applicant had been put on hold. In the event that the Applicant is permitted to retain his visa and therefore, remain in Australia, it is likely he would qualify for a drug and alcohol rehabilitation program, which may be residential in nature. Another objective in the event that the Applicant is permitted to remain in Australia, will be locating his family members in Queensland and attempting reconciliation with them.

38.Mr Reiffel recorded that he was satisfied the Applicant does wish to be reintegrated into the Australian community. He was satisfied the Applicant is highly motivated to be drug and alcohol free, that he has exhibited a high level of remorse and is aware of the impact that alcohol and drug abuse has on his behaviour and on other persons. Mr Reiffel assessed the Applicant as having a low risk of reoffending.

39.In evidence Mr Reiffel said he first met the Applicant at the Beechworth prison in November 2011, approximately two months before the hearing. He said he was attending the prison to visit other clients when the Applicant was referred to him by the prison staff because he had been served with his deportation letter.

40.As he indicated in his statement, Mr Reiffell said that in the event that the Applicant is permitted to remain in Australia, he will work towards assisting him to find accommodation and employment. He will also ensure that the Applicant has adequate health care including a referral to a psychologist for support. He said the Applicant will need professional assistance because he is at risk of relapse. He is hopeful of securing a placement, including residential, with either the Salvation Army or Odyssey House in one of their programs.

41.Mr Reiffel was impressed with the Applicant’s work history and regarded him as being work ready.  He was aware that the Applicant had held up to the four jobs at one time in Australia and had an impressive work record in New Zealand before he moved to Australia.  Indeed he became aware that the Applicant was a very willing participant in work programs in the Beechworth prison. He learnt that the Applicant had saved $1000. He said most of his clients previously leave with less than half of that sum and the fact that the Applicant did have $1000 when released was a strong indication that he is willing and motivated to work.

42.Mr Reiffel said that having spoken with the Applicant on a number of occasions he is satisfied the Applicant is truly remorseful for his behaviour and is disgusted at the injuries that he caused Ms S. He is aware that the Applicant does not have any history of violence and is also aware that he was sexually abused as an infant. 

43.He regarded the risk factors for the Applicant in reoffending were returning to the consumption of alcohol and drugs. Mr Reiffel noted that the Applicant has been drug and alcohol free for over two years. He was also impressed that the Applicant was able to give up cigarette smoking whilst he was a prisoner.

44.Mr Reiffel is also assisting the Applicant to locate his family. He has learnt that the Applicant's former wife is a Salvation Army officer in Brisbane. It is hoped by the facilities of the Salvation Army and their family tracing service, that the Applicant will eventually have contact with his children and restore a relationship with them.

45.Mr Reiffel said he wished that all of his clients were like the Applicant who has reflected on his circumstances and attempted to understand how he got to where he is. He is also impressed that the Applicant participated in all relevant courses and programs that were available to him within the prison system. That he was able to stay at Beechworth for 10 months was remarkable because the Applicant must have been assessed by prison authorities as both low risk and highly motivated. Mr Reiffel assessed the Applicant as having a very low risk of reoffending in the future (Exhibit A3).

DIRECTION 41

46.In deciding whether to exercise the discretion to cancel a person’s visa under s 501(2) of the Act, Part B of Direction 41 compels the decision-maker to have regard to the primary considerations and other considerations specified in paragraphs 10 and 11.

47.The primary considerations recited at paragraph 10.1 are:

(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…; and

(ii)the non-refoulement obligations…

Protection of the Australian Community

seriousness and nature of the conduct

48.Paragraph 10.1 provides that in assessing the level of risk to the community, the decision-maker must consider the seriousness and nature of the relevant conduct and the risk that the conduct may be repeated. Paragraph 10.1.1 describes conduct that is considered to be serious and provides examples. Paragraph 10.1.1(1) states that:

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.

49.The Applicant pleaded guilty to the offence of intentionally causing serious injury.  That is obviously a crime involving violence (10.1.1). The Applicant’s conduct was especially brutal to the victim and abhorrent to the whole of the Australian community. I have no doubt that the offence was particularly serious. As a result of the Applicant’s conduct, Ms S has been both scarred physically and emotionally. The comments of His Honour, together with his reciting of part of the victim impact statement make very unpleasant reading (G-documents, p 60-62).

50.The sustained nature of the offence, the injuries inflicted and the legacy of the offence upon the victim causes me to seriously consider, as I am obliged under Direction 41, whether the Applicant should be permitted to remain in Australia.

51.In assessing the seriousness of the offence, I am also obliged to consider the sentence imposed by the court which is considered to be indicative of the seriousness of the offence (10.1.1 (3)). I must also have regard to the Applicant’s criminal history.

52.The maximum penalty for the offence under the Crimes Act (Vic) 1958 of 20 years indicates the serious nature of the offence. Judge Tinney imposed a sentence of four years and nine months imprisonment and fixed a minimum period of imprisonment of two years and nine months before the Applicant would become eligible for parole. His Honour also indicated that but for the Applicant pleading guilty to the offence, he would have been sentenced to a period of imprisonment of seven years with a non‑parole period of five years. His Honour said in his reasons that although the Applicant’s conduct was extremely serious, it does not fall at the top of the range (G-documents, p 70). 

53.The Applicant has three prior convictions for driving-related offences. He has no other convictions. His relatively unblemished criminal record was relevant in his sentencing. It is also relevant for the purposes of Direction 41. 

54.The Applicant does not have any prior convictions for acts of violence or like offences which suggests that the Applicant is not a person who is violent or aggressive in nature. That is obviously to his credit. The Australian community rightfully expects that its members will not behave in an aggressive or violent manner and no less, persons who live here by the permission granted by a visa. The Applicant’s conduct clearly offends Australian community standards.  However, the offence was isolated and the event which gave rise to it can be explained (but not excused) by the influence upon him of drugs and alcohol.

55.On balance, I am satisfied that the seriousness and nature of the offence causes considerable weight to be attached against the Applicant remaining in Australia. The absence of prior related convictions is obviously to the Applicant’s credit but not to the extent of overwhelming the seriousness and nature of the offence that he has committed and for which he has been convicted.

56.The remaining issues of significance at paragraph 10.1.1 are located at subparagraph (4), namely whether there is any other relevant information that should be considered. The type of material contemplated at this part includes evidence from independent and authoritative sources, including judicial comments, professional psychological reports, pre-sentence reports, parole assessments, victim impact statements and similar sources of authoritative information or assessment. I must also consider any other relevant factors which might be suggested as mitigating the offence.

57.Judge Tinney noted that the Applicant’s father died when he was aged seven. In evidence before this Tribunal, the Applicant said he was removed from his mother shortly thereafter and placed in the care of an uncle. He was removed from the care of his uncle when his grandmother discovered that he was being abused and was placed in the care of another uncle. It was also learnt that the Applicant was sexually abused as an infant by older boys. His Honour noted that the relationship between the Applicant and his grandmother was not without difficulty. There was evidence before me and Judge Tinney that the Applicant has not had contact with his children for many years and he is attempting to locate them. The relationship between the Applicant and other family members in New Zealand has deteriorated to the extent that he has been informed that he is not welcome to return.

58.His Honour referred to a report prepared by Dr Michelle Wauchope, a forensic psychologist. Regrettably, the entirety of Dr Wauchope’s report was not made available to me and I have no option but to rely on the extracts and summaries provided by Judge Tinney in his reasons. 

59.Dr Wauchope reported that the Applicant has been exposed to dysfunctional parental role models which have left him with few functional coping abilities. He was assessed as quick tempered and having angry compulsions which he has managed to control for some time despite the absence of appropriate coping abilities. She concluded that significant substance abuse resulted in his angry feelings coming to the surface whereby he offended against his partner. In her opinion, the likelihood of the Applicant re-offending in a similar manner would be low provided that he engages in long-term specialised therapy, refrains from consuming substances and addresses his anger management issues (G‑documents, p 66-67).

60.Mr Reiffel spoke very highly of the Applicant and was impressed by his attempts to rehabilitate and gain insight into his behaviour. Mr Reiffel said that the Applicant was in the catchment area of another agency involved in the Link Out program, nonetheless he was so impressed by the Applicant that he made arrangements to keep him within the ambit of the Brosnan Centre. He indicated that he is strongly committed to assisting the Applicant to locate independent accommodation and employment. Mr Reiffel was familiar with the Applicant’s work history and regarded him as being work ready. He will also arrange for the Applicant to be referred to an appropriate agency for drug and alcohol counselling. He is satisfied that the Applicant will take advantage of that initiative and described him as highly motivated to live a drug-free socially positive life (Exhibit A3). He was also impressed by the Applicant being permitted to remain at Beechworth gaol for 10 months because that indicates to him that the Applicant must have been regarded by prison authorities as low risk.

61.At the conclusion of the hearing, I gave some very brief reasons for the decision I made to permit the Applicant to remain in Australia. I indicated then that I was impressed by the Applicant, the evidence of Mr Reiffel and the documents that were tendered in evidence. I am satisfied that the Applicant did have a very unfortunate history as an infant. He lost his father at the age of seven, he was taken away from his mother, and was thereafter under the influence of a grandmother and two uncles before he reached teenage years. He was abused by one uncle and later sexually abused by other persons. It is not difficult in the circumstances to comprehend the opinion expressed by Dr Wauchope that the Applicant had a history of dysfunctional parental role models and was taught very few functional coping abilities.

62.The Applicant completed secondary education at the equivalent of year five and thereafter, obtained employment in New Zealand as a dairy farmer, forestry hand, a horticulturalist and a panel beater. He initially held a number of jobs in Australia in addition to playing sport on weekends. He migrated to Australia in order to obtain employment, earn income and play sport. Unfortunately, that work ethic was a cause of the breakdown in his marriage.

63.The Applicant was favourably regarded by Mr Andrew Nisbet, the prison supervisor at Beechworth (G-documents, p 81-82). Indeed it is worthy to note that an incident was reported where the Applicant was the victim and requested that he be separated from another prisoner who he had issues with outside of prison. This request satisfies me that the Applicant was prepared to avoid conflict as he indicated in his evidence. Mr Nisbet confirmed that while incarcerated, the Applicant had nine urine and one breath sample collected for drug testing, all of which returned negative results. Additionally the Applicant completed 10 programs whilst he was incarcerated, all of which will assist him in his rehabilitation and his attempts to obtain employment. Mr Nisbet also reported that the Applicant had received excellent reports from industry supervisors.

64.In assessing the seriousness and nature of the conduct, paragraph 10.1.1(4) of Direction 41 calls for consideration of any relevant information. I do not consider that it is confined only to documented source material. I was impressed by the Applicant’s evidence and his demeanour during the hearing.

65.He was unrestrained in the regret that he suffers for his behaviour and the offence and hurt that he caused Ms S. He was articulate and had considerable insight into his behaviour. He was in my view genuinely remorseful and acknowledges the effort that will be required of him to rehabilitate and be reintegrated into the Australian community.  

66.The Applicant’s offence was brutal and very serious. However, it was an isolated incident and his criminal record consists of traffic offences. While his upbringing, family background and substance abuse do not excuse his offending behaviour, they are relevant factors that may explain it. The Applicant presents as remorseful and motivated, as evidenced also by the assessment of Mr Reiffel and prison officials. I am satisfied that all the relevant factors contemplated in paragraph 10.1.1(4) weigh in favour of the Applicant remaining in Australia.

risk that the conduct may be repeated

67.The remaining issue at paragraph 10.1 is whether there is a risk that the Applicant’s conduct which gave rise to his conviction may be repeated. The circumstances giving rise to the Applicant’s offending and subsequent conviction have been discussed earlier. Based on the psychological assessment of Dr Wauchope, it would appear that his alcohol and drug abuse reached a level where he was unable to suppress his angry compulsions (G‑documents, p 67). 

68.The insight of the Applicant into his offending and his behaviour as indicated above impressed me considerably. He was extensively treated and counselled whilst incarcerated and apparently has come to terms with some of his adolescence and early adult behaviour. He has recognised symptoms and patterns in his functioning which affected him and gave rise to negative behaviour. He is learning that any continuation of that behaviour is self‑destructing. He willingly participated and completed drug and alcohol and anger management programs. He acknowledged that he will require considerable adjustment if he is to succeed in drug and alcohol rehabilitation. His rehabilitation has commenced to the extent that he has been drug and alcohol free for more than two years and nine months whilst he was incarcerated. He also gave up cigarette smoking approximately 10 months before he was released, thereby indicating an ability to resist addictive behaviour. When released from prison, he has agreed to participate in drug and alcohol rehabilitation programs arranged for him by Mr Reiffel.

69.On balance, I am satisfied that the Applicant’s substance abuse was a significant contributor to his offending behaviour. Having regard to his personal circumstances prior to 2003, I am also satisfied that his substance abuse arose from many negative life experiences, commencing with the death of his father and separation from his mother as a child and extending through to the ending of his marriage and the loss of contact with his children. On the evidence of Mr Reiffel and Dr Wauchope, I am satisfied that the risk of re‑offending will depend on whether the Applicant will refrain from alcohol and drugs. They were both consistent in that if the Applicant continues with specialised treatment to address his substance abuse and anger management issues, he poses a low risk of re-offending.

70.The Applicant commenced rehabilitation through the prison system and there is much to indicate that he will continue to address his behaviour in the future. He has been drug and alcohol free while incarcerated and has ceased smoking cigarettes, all of which demonstrate his ability and determination to live substance free. Based on my observations of the Applicant and the assessment of Mr Reiffel, I am confident that he will continue to make further progress with his rehabilitation and will remain drug and alcohol free.  Therefore, l am also satisfied that the risk of him offending again is low. Accordingly, this primary consideration weighs heavily in favour of the Applicant.

Whether person was a minor when they began living in Australia

71.The Applicant arrived in Australia as an adult, at the age of 25.  Having regard to the decision of Rares J in Rosson v Minister for Immigration and Citizenship [2011] FCA 194, I am obliged to take account of the fact that the Applicant was an adult when he arrived in Australia. As an adult, he should have been aware of his duty and responsibility as the holder of a visa giving him permission to reside here. Therefore, this primary consideration does not weigh in his favour. However, he was here for 19 years before he offended save for his driving offences. I attach weight to the Applicant having failed to comply with his duty and responsibility as an adult visa holder but balance it against him having resided here for 19 years before he offended and then only because he was under the influence of alcohol and drugs.

Length of time that a person has been ordinarily resident

72.In exercising the discretion, the decision-maker must have regard to the length of time the person has been residing in Australia. For example, a period of more than 10 years is an important consideration (paragraph 10.3). The Applicant entered Australia in 1990 and has lived here for 22 years. He was present for 19 years before he committed the offence for which he was convicted. Almost half of his life has been lived here. The extent of any significant ties to the Australian community is not known. However, his two children with whom he hopes to re-establish a relationship reside in Australia. He now also has a significant association with Mr Reiffel which is a relationship of fundamental importance to his rehabilitation.

73.Most of Applicant’s adult working life has been spent in Australia and l would expect the remainder of it to be undertaken here. Subject to the outcome of this review, he intends to remain in Australia. The Applicant regards himself as an Aussie and despite others commenting on his New Zealand accent, he said that he does not regard himself as a Kiwi.

74.The Applicant has lived most of his adult life in Australia. His two children live in Australia and he has established an important relationship with Mr Reiffel in Australia. I am satisfied that this primary consideration also weighs in favour of the Applicant.

International Obligations

75.There are no international obligations relevant to this application.

Other Considerations

76.Paragraph 11 of Direction 41 specifies a number of other considerations that must be considered if relevant but generally, they should be given less weight than that given to primary considerations (11(2)).

77.These provisions were recently examined by the Federal Court in Schuster-McFadyen v Minister for Immigration and Citizenship [2011] FCA 1303. Tracey J decided that paragraph 11(2) did not require lesser weight to be given to the other considerations than the primary considerations (at [35]). The word generally is not to be interpreted as an obligation (must) which requires greater weight to be given to the primary considerations and less weight to the other considerations, regardless of how compelling one or more of the other considerations might be (at [36]).

78.The first relevant issue at this part is an examination of family ties, the nature and extent of any relationships.

79.The Applicant is divorced and is not in any relationship with another adult. He has two children residing in Queensland and one child residing in New Zealand. All three children are adults. The Applicant does not know the address of the children who live in Brisbane. Attempts are being made through the Salvation Army tracing service to locate them. The Applicant has drafted a letter that will be forwarded to them when they are located. He is anxious to resume a relationship with those children. In the event that he is returned to New Zealand, he will be further removed from them and any attempts to reunite with them will be frustrated. He may however be able to resume his relationship with his adult son who resides in New Zealand. 

80.Paragraph 11(3) also requires consideration of the Applicant’s links to New Zealand. Although most of his extended family members live in New Zealand, they have expressed hostility towards him. He said that he is not welcome and that was evident when he returned to New Zealand for the funeral of his uncle in 2003. I accept his evidence that should the Applicant return to New Zealand, it is unlikely that he will be offered any accommodation, comfort or support by family members.

81.It appears that the Applicant qualified, either by the provisions of the last Will and Testament of his mother or by Maori tradition, to acquire her home upon her death in 2000. The Applicant said that his mother had indicated to him that the home should be held by him for the benefit of her grandchildren. In those circumstances it seems that the Applicant – according to Maori tradition and to honour his mother’s wishes – will hold the property in a trust type arrangement for the benefit of his mother’s grandchildren. The Applicant indicated at the hearing that he understood he had been registered as the proprietor of the property. However, on further examination, he indicated that in the absence of paperwork he could not be certain whether he had in fact been registered.

82.The Applicant may, as a matter of law, be entitled to assert the right to occupy the property, as the proprietor, in the event that he returns to New Zealand. However, it is currently occupied by his sisters, their husbands and their children and on his evidence, it is unlikely that they would permit him to enter. If the Applicant is forced to return to New Zealand, he will need a place to reside. It seems to me on the evidence of the Applicant and in the absence of anything contrary from the Minister, that the Applicant cannot presently assert that he has any secure form of accommodation in New Zealand.

83.The Applicant has been absent from New Zealand for more than 20 years. For reasons stated above, he cannot rely on family support and there was no evidence of friends who may be able to provide support at least in the short term. If he returns, it is unlikely that he would be able to secure accommodation or employment immediately. He may qualify for income support through a social security system prevailing in New Zealand, however, I would assume that payment of income would not be immediate. His absence from New Zealand has probably denied him contact or association with persons who previously might have been of assistance to him.

84.The absence of family ties and therefore a support network in New Zealand as compared to Australia are of particular relevance in this application and weigh in favour of the Applicant remaining in Australia.

CONCLUSION

85.The decision-maker was confined to making a decision on the basis of the papers before him. He did not have the advantage of a review of the materials before this Tribunal. Importantly in my view, he did not have the benefit of observing the Applicant and his witness, Mr Reiffel nor did he have the benefit of the submissions of Counsel.

86.The offence committed by the Applicant was brutal and sustained upon a vulnerable, drug affected woman. The consequences to her have been significant as recorded earlier. Considerable weight will be levied against the Applicant for that behaviour. However, the Applicant has obtained considerable insight into his behaviour, including the reasons for it, and has demonstrated remorse. But for the advice of his Counsel at the Committal hearing, he would have apologised to Ms S. He changed his plea after the committal and saved the community cost and spared the ordeal of Ms S having to give evidence.

87.The Applicant has been drug and alcohol free for almost 3 years. He has agreed to enter counselling and rehabilitation to strengthen his resolve to abstain and reduce the risk of relapse. He and Mr Reiffel have entered into a relationship of mutual respect and co-operation. The Applicant consents to the initiatives Mr Reiffel has commenced to find accommodation and employment. Mr Reiffel indicated that he wished all his clients were like the Applicant. The Applicant understands he will have to work hard to successfully rehabilitate and restore confidence in the Minister that he will not again offend.

88.The weight attaching to the primary considerations was, in my view, finely balanced. While the offence was of a serious nature, the risk of re-offending is low because of his rehabilitation to date and his motivation to refrain from drugs and alcohol in the future. Although he did not arrive in Australia as a minor, he has been a resident for 19 years prior to offending. The weight attaching to some of the primary considerations and other considerations, tips the scales in favour of the Applicant.

DECISION

89.The decision under review is set aside and in substitution it is decided that the visa issued to the Applicant permitting him to reside in Australia should not be cancelled.

90.

I certify that the eighty-nine [89] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr John Handley, Senior Member

Signed:          Olympia Sarrinikolaou

Legal Assistant

Date of Hearing  11 January 2012
Date of Decision  11 January 2012
Date of Written Reasons             20 January 2012
Counsel for the Applicant            Ms J. Taylor
Solicitor for the Applicant             Victoria Legal Aid
Counsel for the Respondent         Ms A. Graham
Solicitor for the Respondent        Clayton Utz Lawyers