MAURANGI AND MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2011] AATA 408
•15 June 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 408
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/1096
GENERAL ADMINISTRATIVE DIVISION ) Re CHARLIE MAURANGI Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Senior Member R W Dunne Date15 June 2011
PlaceAdelaide
Decision The Tribunal sets aside the decision under review and remits the matter to the respondent with a direction that the discretion under s 501(2) of the Act to cancel Mr Maurangi’s visa not be exercised.
..............................................
R W DUNNE
(Senior Member)
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – visa cancellation – applicant residing in Australia since May 1993 – applicant was a minor when he began living in Australia – discretion to cancel visa where applicant fails character test – substantial criminal record – Ministerial Direction – primary and other considerations – risk that the conduct may be repeated – prospects of rehabilitation – decision under review set aside.
Migration Act 1958 (Cth) ss 501(2), 501(6)(a), 501(7)(c)
Ministerial Direction No 41
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Shi v Migration Agents’ Registration Board (2008) 235 CLR 286
Re Nguyen and Minister for Immigration and Citizenship [2010] AATA 861
Re Tucker and Minister for Immigration and Citizenship [2010] AATA 559
Re Tewao and Minister for Immigration and Citizenship [2011] AATA 329
Minister for Immigration and Citizenship v Obele [2010] FCA 1445
Re Puafisi and Minister for Immigration and Citizenship [2009] AATA 689
Rosson v Minister for Immigration and Citizenship [2011] FCA 194REASONS FOR DECISION
15 June 2011 Senior Member R W Dunne introduction
1.The applicant, Mr Charlie Maurangi, held a Class TY, Sub-class 444 Special Category (Temporary) visa. On 18 March 2011, a delegate of the Minister for Immigration and Citizenship (“respondent”) decided to cancel the visa on the ground that he did not pass the character test. Mr Maurangi has applied to the Tribunal for review of the delegate’s decision.
2.The G documents lodged pursuant to s 501G of the Migration Act 1958 (Cth) (“Act”) were admitted into evidence as Exhibit A1. The same documents, prepared and numerically paginated by the respondent, were admitted into evidence as Exhibit R1. The following exhibits were tendered and also admitted into evidence:
·statement of applicant received on 23 April 2011 (Exhibit A2);
·letter from Jillian Liddicoat, Senior Social Worker, dated 4 April 2011 (Exhibit A3);
·summing-up remarks of Justice Matheson in the Supreme Court of South Australia dated 4 October 2000 (Exhibit R2);
·letter of instruction from AGS to Dr Ewer dated 19 April 2011 (Exhibit R3);
·report of Dr Ewer dated 4 May 2011 (Exhibit R4);
·questionnaire and tests completed by the applicant at Dr Ewer’s rooms on 4 May 2011 (Exhibit R5); and
·Dr Ewer’s notes of the interview with the applicant on 4 May 2011 (Exhibit R6).
3.In addition to the applicant, Mr Maurangi’s sister, Maara Maurangi, and Dr M R Ewer, Forensic Psychiatrist, gave evidence at the hearing.
issue before the tribunal
4.As Mr Maurangi does not pass the character test by reason of his substantial criminal record, the only issue before me is whether I should exercise the discretion conferred by s 501(2) of the Act to cancel his visa.
relevant law and policy
5.Section 501(2) of the Act provides that the Minister may cancel a visa if “the Minister reasonably suspects that the person does not pass the character test” and “the person does not satisfy the Minister that the person passes the character test”. Section 501(6) provides that a person does not pass the character test if he or she has a substantial criminal record. Under s 501(7)(c), a person is taken to have a substantial criminal record if he or she has been sentenced to a term of imprisonment of 12 months or more.
6.Mr Maurangi was sentenced to two terms of imprisonment of 12 months or more on 25 August 1999 and 20 October 2000. Thus, he does not pass the character test. It was therefore open to the respondent Minister to cancel his visa. In exercising this discretion, the decision-maker must apply Direction [no 41] – Visa Refusal and Cancellation under s 501 of the Act (the “Direction”). The Direction provides for the manner of exercise of the Tribunal’s function under the Act.
background
7.Mr Maurangi was born in the Cook Islands on 22 October 1978. He is the youngest of 12 children in his family. He arrived in Australia on 18 May 1993 at the age of 14 years and he has not departed Australia since then. On 1 September 1994, he was granted the visa. His childhood experiences in the Cook Islands involved abuse and violence. His parents both abused alcohol and frequently engaged in drunken, domestic fights and arguments. His father had a violent temper and, when his parents were engaged in a fight one evening, his mother was killed. His father was convicted of manslaughter and was sentenced to about 7 years in prison.
8.In Australia, Mr Maurangi lived with a sister and at school he found learning difficult. He was unable to speak and read English well. He left school at the age of 16 years and moved away from his sister. After this, he had no contact with his family.
9.Mr Maurangi’s criminal history in Australia commenced in 1996. On 21 June 1996, in the Adelaide Children’s Court, he was found guilty, without conviction, for the offences of ‘Robbery in company’ and ‘Break and enter and commit offence’. Both offences were committed on 27 April 1996 when, according to his evidence, he and friends entered a neighbour’s flat and demanded his belongings, which they eventually helped themselves to. The Court imposed an obligation with a condition, among others, that Mr Maurangi attend drug and alcohol counselling.
10.Also on 21 June 1996, in the Adelaide Children’s Court, Mr Maurangi was ordered to serve 50 hours of community service for two counts of ‘Damaging property’. Those offences were committed on 23 April 1996. No conviction was recorded. According to his evidence, Mr Maurangi went into a club at Norwood and asked for a wine opener. When he was told to leave, he grabbed a jacket off the bar, kicked the front door and kept walking.
11.On 7 March 1997, in the Adelaide Children’s Court, Mr Maurangi was convicted for the offences of ‘Larceny’ and for ‘Fail to comply with bond obligation’ (both committed on 26 August 1996) and ‘Common assault on person other than family member’ and ‘Fail to comply with bond obligation’ (both committed on 3 September 1996). According to his evidence, with the larceny offence he had approached someone, demanded his property and then helped himself. The assault again involved the neighbour in the offence committed on 27 April 1996. While he was present, two of his friends picked a fight with the neighbour at a bus stop and Mr Maurangi sided with them, rather than the neighbour.
12.On 17 April 1998, in the Elizabeth Magistrates Court, Mr Maurangi was convicted for the offences of ‘Drive with excess blood alcohol’, ‘No licence’ and ‘Fail to signal’. Those offences were committed on 7 February 1998.
13.On 25 August 1999, in the Holden Hill Magistrates Court, Mr Maurangi was convicted for the offences of ‘Common assault on person other than family member’ and ‘Drive or use motor vehicle without consent’. Those offences were committed on 21 March 1998. He was sentenced to 12 months imprisonment, which was suspended. Mr Maurangi and an accomplice had, as the Magistrate had described, “on the spur of the moment”, assaulted a taxi driver while on route to Mr Maurangi’s home. The pair had been out drinking that night and did not have the money to pay the taxi driver. According to his evidence, Mr Maurangi, was about to sleep, but woke when his accomplice tried to rob the driver of his money. Mr Maurangi held the driver from behind while his accomplice searched for the money. The driver ran from the taxi and the pair fled. Mr Maurangi was 19 years old at the time of the offences.
14.On 5 October 2000, Mr Maurangi was unanimously found guilty of manslaughter by a jury (although he was charged with murder) in the Supreme Court of South Australia. He was 20 years old at the time of the offence which, with two accomplices, was committed on 10 January 1999. The victim was cleaning a pool hall with his wife and 15 year old son at about 4.15am. One of the accomplices fatally shot the victim with a sawn-off shot gun owned by Mr Maurangi. The Court was satisfied that he was the ringleader and sentenced him to 15 years imprisonment, with a non-parole period of 11 years.
15.Mr Maurangi is currently being held in immigration detention at Mobilong in country South Australia.
16.On 14 October 2008, the Department of Immigration and Citizenship gave notice to Mr Maurangi (“NOICC”) that cancellation of his visa was to be considered and inviting him to make submissions. On 20 November 2008, Mr Maurangi acknowledged, in writing, receipt of the NOICC. After several extensions of time, on 4 February 2009, the Legal Services Commission of South Australia, acting on behalf of Mr Maurangi, made submissions in response to the NOICC. On 25 January 2011 and 7 February 2011, the Department invited Mr Maurangi to make further submissions in relation to additional information of relevance that had been received (undated Prison Conduct Report and Australian Federal Police Certificate). On 20 February 2011, the Legal Services Commission made further submissions in relation to the additional information.
17.Mr Maurangi has two brothers and two sisters living in Australia. He also has some extended family in the Cook Islands and in New Zealand. He is unmarried. He has one minor child (a son), who is approximately 14 years of age. He has had no real contact with his son, but has provided him with some financial support.
the direction
18.In reviewing the delegate’s decision I must conduct a re-hearing, that is, hear the matter afresh. I may exercise all the powers and discretions of the delegate, and must arrive at the correct or preferable decision on the material before me, and not by reference to the material before the delegate: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, and Shi v Migration Agents’ Registration Board (2008) 235 CLR 286.
19.As the Direction is a statutory instrument, it should be interpreted so as to give effect to the objectives of the Act and in accordance with ordinary principles of statutory interpretation. I must begin with a consideration of the ordinary meaning of the relevant words of the Direction, read in their context and having regard to their apparent purpose and to the purposes of the Act.
20.The objectives of the Direction are set out in paragraph 5.1. This paragraph refers to the objective of protecting the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens, and states that the Government is especially mindful to protect the safety of the community’s more vulnerable members.
21.The following sub-paragraphs appear as part of paragraph 5.2, under the heading “General Guidance”:
“(2)In reaching a decision on whether to refuse or cancel a visa, a decision-maker needs to consider:
(a) the nature of any harm that the person concerned may cause to the Australian community; and
(b)the risk of that harm occurring.
(3) Exercise of the section 501 power must also be considered in the context of a wide range of factors, including whether the person began living in Australia as a minor, the length of time the person has been ordinarily resident in Australia and any relevant international law obligations.
(4) In some circumstances it may be appropriate for the Australian community to accept more risk where the person concerned has, in effect, become part of the Australian community owing to their having spent their formative years, or a major portion of their life, in Australia.”
22.The Direction then goes on to provide that, in exercising the discretion whether or not to cancel a visa, the decision-maker must take into account four primary considerations and, where relevant, seven other considerations. Paragraph 11(2) provides in effect that it is appropriate that such other considerations must be taken into account, but generally they should be given less weight than that given to primary considerations. I shall consider the four primary considerations, and the other considerations that are relevant to the present proceedings, in turn.
primary considerations
23.The primary considerations relevant in Mr Maurangi’s case are the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence, the fact that he was a minor when he began living in Australia, the length of time that he was ordinarily resident in Australia prior to engaging in criminal activity and the best interests of relevant children. These considerations are addressed below.
First primary consideration – protection of the Australian community (paragraph 10.1)
24.This requires due consideration to be given to the Government’s objectives as set out in paragraph 5.1 of the Direction. Paragraph 10.1 provides, in effect, that the factors relevant to assessing the level of risk of harm to the community include two factors, namely: (a) the seriousness and nature of the relevant conduct; and (b) the risk that the conduct may be repeated.
First factor re protection of Australian community – seriousness and nature of conduct (paragraph 10.1.1)
25.Paragraph 10.1.1(1) of the Direction provides relevantly that crimes involving violence are of special concern to the welfare and safety of the Australian community and such crimes, particularly against vulnerable persons such as minors, are especially abhorrent to the whole community. The Direction provides examples of offences and conduct that are considered serious. Amongst these are manslaughter (sub-paragraph 10.1.1(2)(a)), assault (sub-paragraph 10.1.1(2)(d)) and robbery (sub-paragraph 10.1.1(2)(e)). These offences and conduct are part of Mr Maurangi’s criminal history.
26.Paragraph 10.1.1(3) of the Direction states that “The sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community” and regard must be given to the number and nature of offences, the period between offences and the time elapsed since the most recent offence. Among the factors also to be considered, pursuant to paragraph 10.1.1(4), are any judicial comments made about the person, professional psychological reports and similar sources of authoritative information or assessment, and any relevant factors the person provides as mitigating factors.
27.Mr Maurangi has committed 14 offences during a criminal history that spanned a period of nearly 3 years, commencing on 23 April 1996 and ending on 10 January 1999. He was convicted of 10 of those offences committed over a period of approximately 2½ years, between 26 August 1996 and 10 January 1999. The offence of manslaughter is a very serious matter and one for which, on his evidence (which I accept) Mr Maurangi now accepts responsibility. He said that, at the time of his trial, he was in denial and ashamed of his conduct, but he now accepts his involvement in the death of the victim and regretted not saying something to the victim’s family at an earlier stage.
28.However, when one considers the remainder of Mr Maurangi’s criminal record, while some of the offences may be classified as serious, the majority of them are, in their context, relatively small or minor matters. Four of them occurred while he was a juvenile. In the main, the offences do not, in my view, pose a serious risk to the Australian community. For example, the assault on the taxi driver on 21 March 1998, whilst unacceptable, did not result in serious injury to the driver. In Mr Maurangi’s case, it could not be regarded as an aggravated assault, otherwise giving rise to concern, and this can perhaps be inferred from the Magistrate’s comments at the trial. It was, as Mr Ower submitted, an ill thought-out robbery that went astray and one in which Mr Maurangi did not consider the consequences of what he was doing. As was remarked by the Magistrate on the question of penalty:
“… Mr Maurangi, I think I do have to distinguish if I am going ahead on the basis that it was Mr Pora who decided on the spur of the moment with you hanging on to the taxi driver from behind – he decided on the spur of the moment ‘Beauty, I’ll take advantage of this and grab the $70.00 out of the driver’s pocket’. I think I am giving a fairly broad hint I find that incredibly fortuitous if I am obliged to deal with you on that basis. I think am obliged to make your imprisonment term different to Mr Pora’s on the basis he is the person who took advantage, on the ordinary set of circumstances, to seize the money. …”
29.In a similar vein, the assault on 3 September 1996 involving the same neighbour who was the victim in the offences on 27 April 1996, was again not a particularly serious assault. Mr Ower submitted that it was possible to see a spectrum of assaults in which, at the higher end, they were matters that perhaps had as much seriousness as the manslaughter offence and, at the lower end, were matters which perhaps were to be given lesser weight. Having regard to Mr Ower’s submission and on the evidence, I accept that the two assaults that are recorded in the Australian Federal Police Certificate (Exhibit R1, pages 57 and 59) are assaults that may be viewed at the lower end of the scale of seriousness.
30.Mr Ower also submitted that the offences of robbery and larceny, heard in the Adelaide Children’s Court and involving no convictions, might be given less weight than matters involving violence. He put to me that they could be seen in the context of a young man who was going off the rails, partly due to a lack of parental guidance and partly due to the influence of alcohol. I accept Mr Ower’s submission. There was no suggestion of any repeat of that conduct while Mr Maurangi was in prison and, while that institution may be described as a controlled environment, such an environment would still not prevent theft or larceny from occurring. Without, as he said, wishing to underplay the unacceptability of criminal conduct to the Australian community, Mr Ower further submitted that the minor offences should be seen in their context. He put to me that, if an Australian citizen had conducted himself or herself in such a manner, committing two larcenies and two minor assaults, would this would be a matter that would occupy a great deal of concern in the Australian community, or would it simply be a matter that the person in question would go before the Magistrates Court and be dealt with by an appropriate penalty, possibly only a matter of a fine or a suspended sentence? In my view, Mr Ower’s further submission has considerable merit.
31.The remaining offence and conduct committed by Mr Maurangi in his criminal history is manslaughter, and it is clear from paragraph 10.1.1(2)(a) of the Direction that the manslaughter in question is a very serious offence. For the purpose of the present proceedings, Mr Maurangi agreed to see Dr Martyn Ewer, a forensic psychiatrist with considerable practical experience as a medico-legal consultant in the field of psychiatry. Dr Ewer was asked to address:
“Q1Whether the applicant would pose a risk of harm to the Australian community if he is permitted to remain in Australia and, if so, the nature and degree of any such risk.
Q2In particular, whether the applicant would pose a risk of harm to vulnerable members of the Australian community such as minors, the elderly and/or the disabled, if he remains in Australia and, if so, the nature and degree of any such risk.
Q3The likelihood, if any, of the applicant engaging in any of the conduct listed in paragraph 10.1.1(2) of the Direction if he is permitted to remain in Australia.
Q4The nature and extent of any rehabilitation achieved by the applicant as well as the likelihood of any further rehabilitation being achieved if the applicant is permitted to remain in Australia.
Q5Whether the applicant suffers from a diagnosable psychiatric or other health condition and, if so, the nature and extent of any such condition.
Q6If you have answered Q5 in the affirmative:
- Whether effective treatment of any such condition could significantly reduce any risk of harm the applicant may pose to the Australian community.
- Whether the applicant would have appropriate access to necessary medication and/or medical treatment if he is removed from Australia and returned to New Zealand?
- Whether any disability suffered by the applicant has impaired, or may impair, the applicant’s ability to advocate on his own behalf.”
32.Dr Ewer was an impressive witness who gave his evidence in a straightforward manner. He reported that it was his clinical opinion, based upon a reasonable degree of medical probability, that Mr Maurangi had previously suffered from alcohol dependence. He said that condition was currently in remission and there was also a past history of illegal substance abuse. He then reported that Mr Maurangi met the diagnostic criteria for antisocial personality disorder. He gave an explanation of Mr Maurangi’s disorder in his oral evidence and related it to Mr Maurangi’s past, and likely future, behaviour. He referred to the diagnostic criteria for antisocial personality disorder contained in DSM-IV-TR, which is the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association. The diagnostic criteria are:
“A.There is a pervasive pattern of disregard for and violation of the rights of others occurring since age 15 years, as indicated by three (or more) of the following:
(1)failure to conform to social norms with respect to lawful behaviours as indicated by repeatedly performing acts that are grounds for arrest
(2)deceitfulness, as indicated by repeated lying, use of aliases, or conning others for personal profit or pleasure
(3)impulsivity or failure to plan ahead
(4)irritability and aggressiveness, as indicated by repeated physical fights or assaults
(5)reckless disregard for safety of self or others
(6)consistent irresponsibility, as indicated by repeated failure to sustain consistent work behaviour or honor financial obligations
(7)lack of remorse, as indicated by being indifferent to or rationalizing having hurt, mistreated, or stolen from another
B.the individual is at least age 18 years.
C.There is evidence of Conduct Disorder with onset before age 15 years.
D.The occurrence of antisocial behaviour is not exclusively during the course of Schizophrenia or a Manic Episode.”
33.Dr Ewer reported that Mr Maurangi met the diagnostic criteria for antisocial personality disorder in the following ways (Exhibit R4, page 18):
·He has exhibited significant and extensive unlawful behaviours indicating a failure to confirm to social norms.
·He has been deceitful and has stolen from others.
·He has demonstrated impulsivity and a failure to plan ahead.
·He has exhibited aggressiveness including assaults, hitting a man over the head with a shotgun, pushing a woman to the ground and menacing and frightening people.
·He has been irresponsible and has failed to take responsibility for himself.
·Mr Maurangi is at least eighteen years of age.
·There is evidence of disturbed conduct before the age of fifteen.
·The above behaviours are not better described by an axis-psychiatric disorder.”
34.Dr Ewer further reported that Mr Maurangi had a long history of antisocial personality behaviour in the setting of an antisocial personality disorder. He had been violent towards others on a number of occasions in circumstances where his aggression had not been provoked. He commended Mr Maurangi for the steps he had taken to rehabilitate himself in prison, but said that some of this had the appearance of him going through the motions rather than really changing. He was encouraged that Mr Maurangi had not offended whilst in prison, but observed that that was a very controlled environment. He was concerned that Mr Maurangi had not felt the need to seek out individual counselling to address the disturbed behaviour he had exhibited over a number of years. This showed a lack of insight into Mr Maurangi’s problems and it probably also demonstrated that he had not accepted responsibility for what had happened. Finally, he reported that the prognosis for an antisocial personality disorder was poor, even with treatment. Given this diagnosis and his past history of violence, in his clinical opinion, based upon a reasonable degree of medical probability, Dr Ewer assessed Mr Maurangi as posing a risk of harm to the Australian community if he was permitted to remain in Australia. Interestingly, although Dr Ewer reported that Mr Maurangi met the diagnostic criteria for antisocial personality disorder, he nevertheless went on to express a clinical opinion that Mr Maurangi would pose a risk of harm to the Australian community.
35.In his cross-examination, Mr Ower referred Dr Ewer to Criterion C in the diagnostic criteria for antisocial personality disorder in DSM-IV-TR, namely, that there had to be some evidence of disordered conduct (or “Conduct Disorder”) prior to the age of 15 years. Dr Ewer went on later to opine that, based on Mr Maurangi’s history at age 15 and 16 (and possibly beyond), he did not meet the criteria for the diagnosis of Conduct Disorder. During the course of further cross-examination by Mr Ower and having regard to the fact that, (1) Mr Maurangi did not arrive in Australia until he was 14 years of age and, (2) there was no evidence of any Conduct Disorder by him in the Cook Islands before his arrival, I am not satisfied that Mr Maurangi meets Criterion C in the diagnostic criteria for antisocial personality disorder in DSM-IV-TR. Although Dr Ewer asserted that DSM-IV-TR could not be used as a “cook book”, he accepted that, in the absence of any of the relevant criteria, a diagnosis of antisocial personality disorder for Mr Maurangi would be weak.
36.Dr Ewer was then asked whether his view as to the risk Mr Maurangi might pose to the Australian community in the future would change if he assumed that he was not suffering from antisocial personality disorder. In answer to the question Mr Ower put to him, Dr Ewer said:
“If I am to assume that, I would then look at the other factors that I referred to earlier in terms of assessing his risk to the community, and there – even if he isn’t suffering from an antisocial personality disorder, if I assume that, there are still a number of other factors which are of concern. And those factors are the aggression that he has shown in the past; the context in which that aggression occurred, and by that I mean if a person is violent in the context of interpersonal conflict, that’s one thing, but if they have initiated the violence for self-gratification, that’s considered another thing in terms of risk assessment; he has demonstrated a family history of violence and also criminality; his father went to jail for the murder of his mother; his father exhibited violence at home, including to Mr Maurangi, that’s considered to be a matter to predict future violence; the fact that he had a disturbed developmental childhood, with a lack of good parental care; the nature of the violence, and some of it is – was quite of a malignant nature, I would weight that up. I would also look at the lack of family and social support, he mentioned to me that he has had no visitors from family or friends for quite some time; and I would also be mindful of the past history of alcohol dependence. So if I assume that he didn’t have an antisocial personality disorder, but took into account all those other factors, I would still be probably saying that there is a probability of future violence.” [Transcript, pages 98-99]
When I asked Dr Ewer whether antisocial personality disorder, coupled with alcohol dependence, was the main reason why he reached the conclusion he had, he agreed that the factors he outlined above were those that enabled him to reach that conclusion. Dr Ewer confirmed that, if antisocial personality disorder and alcohol dependence were set aside, he confirmed that he would reach the same conclusion in relation to Mr Maurangi’s assessment.
37.When analysing the six factors identified by Dr Ewer, it seems to me that each of them can fall away when confronted with the conduct of Mr Maurangi during the last 10 years whilst he has been in prison. As to the first factor, there is no evidence of any aggression by Mr Maurangi during his time in prison. No matter how controlled prison is, it is an environment in which aggression can be exhibited, and there is no evidence in his everyday contact with other prisoners that he exhibited aggression. As to the second factor and the issue of violence for self-gratification, it is difficult to see what crime is not committed for the purpose of self-gratification, especially the lesser crimes that Mr Maurangi committed. However, the most serious offence that Mr Maurangi was convicted of – manslaughter – was clearly not committed for self-gratification. As Mr Ower submitted (and I accept), it was an accident. It was a mistake and was something that should never have occurred. But it could hardly be said to fall within any pattern of Mr Maurangi engaging in self-gratifying behaviour. As to the third factor, Mr Maurangi’s family history does not necessarily provide any basis upon which there is a likelihood of offending in the future. In my view and on the evidence, the simple fact that his mother and father were dysfunctional as parents is something that should not give rise to finding that there is a risk to the Australian community. Much the same can be said about factor four and Mr Maurangi’s disturbed childhood. The fact that he had such a disturbed childhood prior to coming to Australia is not something that should indicate he is likely to be a risk to the Australian community. As to factor five and the malignant nature of the violence involved, it is clear that there were terrible offences committed by Mr Maurangi at the relevant time. Again, on the evidence, this factor comes back to the question of alcohol dependence which, in his evidence, Mr Maurangi admitted he would struggle with in the future. However, he made it clear that he would be seeking treatment for the condition, or as least seeking to keep (or be kept) away from alcohol. I am unable to accept Dr Ewer’s evidence that there is a medical risk or assumption that, as far as alcohol dependence is concerned, Mr Maurangi is going to pose a risk to the Australian community. Apart from two instances, there is no evidence of any alcohol abuse or dependence while he was in prison. On my analysis, Dr Ewer’s evidence is no higher than saying Mr Maurangi has committed these offences, he has been in prison, and he has not been tested in relation to the offences. (I note that this is a matter I took into account in Re Nguyen and Minister for Immigration and Citizenship [2010] AATA 861 (at paragraph 53)). Dr Ewer agrees that, if there is to be treatment of Mr Maurangi, this is something that will lessen the risk of antisocial personality disorder and, as I understand it, alcohol dependence, and Mr Maurangi is willing to undergo such treatment. On this, I note the following was said in DSM-IV-TR (at page 704):
“Antisocial Personality Disorder has a chronic course but may become less evident or remit as the individual grows older, particularly by the fourth decade of life. Although this remission tends to be particularly evident with respect to engaging in criminal behaviour, there is likely to be a decrease in the full spectrum of antisocial behaviours and substance use.”
38.Mr Ower submitted that the other offences, perhaps, in their context, should be given lesser weight than the offence of manslaughter of which Mr Maurangi has been convicted. As I have said, I have analysed the evidence of Dr Ewer, in particular, his diagnosis of antisocial personality disorder and the six factors that he reported were indicative of the risk he posed to the Australian community. In particular, he reported that Mr Maurangi was suffering from antisocial personality disorder that was only moderately severe. In Re Tucker and Minister for Immigration and Citizenship [2010] AATA 559 the Tribunal, comprising Justice Buchanan and Senior Member Isenberg, had occasion to consider the evidence of a forensic psychiatrist reporting on antisocial personality disorder. Mr Tucker, who was 46 years old at the time, came to Australia with his parents when he was 6 years old and, apart from a short holiday overseas late in 2008, he had remained in Australia without interruption ever since. He had thus been ordinarily resident in Australia for over 40 years. He had a long history of violence for which he had served significant periods of imprisonment, one of which was for more than 12 months. Mr Tucker’s recorded criminal history appears to have commenced when he was 11 years old. When he was 13 years old, he was convicted of larceny and was subsequently convicted at the ages of 15, 16 and 17 years of various further offences including larceny, breaking into a building, destroying or damaging property and making illegal use of a motor vehicle. At 18 years of age his convictions for assault commenced. While aged 18 he assaulted police, committed common assault, committed larceny and carried an offensive weapon. At 19 years of age his conduct escalated. He damaged property, hindered police, breached his bond, assaulted police and then, in August 1983, entered Christie’s Beach Police Station in South Australia armed with a pistol which he fired at a police officer four times, one bullet wounding the officer in the groin. He was convicted of attempted murder and sentenced to 12 years in prison with a non-parole period of 11 years. The forensic psychiatrist reported that he had diagnosed Mr Tucker as having severe antisocial personality disorder with likely borderline features. Given Mr Tucker’s extensive criminal history and the offences he had committed, including the offence of attempted murder on the police officer, one can understand how the forensic psychiatrist was able to diagnose the severe level of antisocial personality disorder that he did. Based on Mr Maurangi’s criminal history, I must say I find Dr Ewer’s diagnosis of moderately severe antisocial personality disorder is unwarranted.
39.In my view and when considered overall, Mr Maurangi’s criminal history of less than 3 years between April 1996 and January 1999, does not suggest a risk of violence to the wider community.
Second factor re protection of Australian community – risk that the conduct may be repeated (paragraph 10.1.2)
40.With regard to the risk that the conduct may be repeated, paragraph 10.1.2 of the Direction requires that consideration be given to Mr Maurangi’s previous general conduct and total criminal history and, in particular, to any recent history of convictions, evidence of rehabilitation and evidence as to whether he has breached any judicial orders, including parole, bail and other relevant undertakings or conditions imposed by the Courts. In terms of the question that the conduct may be repeated, Mr Maurangi has been in prison for the last 10 years and has not been part of the Australian community. Thus, the recidivism question has not been tested. In these circumstances, one has to look for signs whether, if he is to be released into the Australian community, there is a risk that potentially the more serious offence of manslaughter could be repeated, or that the lesser serious offences of assault and larceny could be repeated. Mr Ower submitted that one could look at Mr Maurangi’s behaviour in prison to get some guidance as to what sort of person he is today, as distinct from the person he was when he first began to serve his sentence. He referred me to three exhibits that he said provided objective evidence of the distinction. The first was an extract from Mr Maurangi’s Conduct Report from the Department of Correctional Services (Exhibit R1, page 68) dated 10 September 2008, which relevantly reads:
“…
Is presently of Drug Free status waiting for entry into DFU’s, polite and responsive to staff. Has one incident whilst placed at CTC (Consumption of Home Brew 24/06/08) – otherwise displayed positive behavoural [sic] traits. Employed in Olive Gang where he demonstrates a[n] excellent work ethic, punctual and the ability to work unsupervised.
…”
And the conclusion of the author of the Report at page 69 is that:
“Appears to have made every effort to improve himself for eventual release.”
41.The second document is a report from Mr Maurice Grant, who was Mr Maurangi’s case manager at Cadell Training Centre (Exhibit R1, pages 149-150). In his report, Mr Grant says:
“…
As Mr Maurangi’s Case Manager, for his entire placement at Cadell, I have observed his positive endeavours to end his offending behaviour by being polite and responsive to all requests, communicating well with staff and peers, undertaking all programs as required and continually demonstrating excellent work ethic and behavioural traits.
…
Mr Maurangi is employed in our Community Works Project Team. This team works outside of the Institution catering to the needs of outside agencies. Work undertaken by the team include, repairing of fences in Conservation Parks, restoration of historical sites, paving and brickwork laid at local schools and sporting clubs and general maintenance as required and sought throughout the surrounding districts. Mr Maurangi’s application to all projects has been one of enthusiasm with a great desire to finish all projects to the satisfaction of the agencies in need.
Mr Graham Hastings, the Supervisor of the Team can only speak highly of Mr Maurangi’s work ethic, his enthusiasm for the Program and the professional manner he conducts himself when in the presence of outside agencies.
Mr Maurangi is also a valuable member of the Cadell CFS. His qualification is that of a level 1 Fire-fighter and he attends all “call outs” which may include bushfires, house fires and road accidents. As always he demonstrates a high level of professionalism and a willingness to contribute to the community in a positive manner.
Since imprisonment Mr Maurangi has attended therapeutic and educative programs including Victim Awareness, Anger Management and Alcohol and Other Drug Relapse Prevention. He is currently attending the moderate intensive program ‘Making Changes’. This program was recently made available to offenders in the South Australian prison system. This program is designed to assist offenders to adopt an offence free lifestyle. The program aims to increase participant’s understanding of what led to offending and points where different choices could have been made.
Mr Maurangi was given a specialised assessment on 3rd June 2010 for the Violence Prevention Program but due to being assessed as low risk of violent re-offending was found unsuitable for the program.”
42.The third document is a report from Ms Jillian Liddicoat, a Senior Social Worker at Cadell Training Centre (Exhibit A3) apparently prepared prior to Mr Maurangi’s recent attendance at the Parole Board. In her report, Ms Liddicoat says:
“… Mr Maurangi has chosen to transfer into the BERRI community because he understands that he will need extra support, which is readily available in the area and he is accustomed to the rural area. Mr Maurangi also says he does not intend having contact with any post associates and being in a new area will be more beneficial to him. Mr Maurangi also has had long term contact with a DCS volunteer who lives in the area and they have built up a strong friendship which he is keen to continue on release.
…
We also made contact with a local job networker who assured us that vineyard work will become available and that there is work in the Riverland for people with trade skills such as those Mr Maurangi possesses.
…”
43.Certainly, the report from Ms Liddicoat at the Department of Correctional Services suggests that there is a low risk of Mr Maurangi re-offending and repeating the conduct he engaged in prior to his incarceration in October 2000.
44.Mr Maurangi has undertaken the Victim Awareness program, the Think First program, the Anger Management program and the Alcohol and Other Drug Relapse Prevention program. He has also worked in a number of responsible positions at which there would be some potential for misbehaviour. And the two positions, in particular, are his community service, which would involve use of heavy machinery, tools, etc, and his work with the CFS. Mr Ower submitted (and I accept) that, although these are relatively limited matters, they do give some insight as to the character of Mr Maurangi. When he has been given an opportunity to misbehave in the community, he has not done so.
45.In terms of Mr Maurangi’s evidence before me, he was open and frank about the difficulties he faced prior to his time in prison and the difficulties he faces in the future. He said he wants to “bury his head into work”. He wants to distance himself from alcohol and drugs and remove himself from the people he has known in the past. This approach is similar to what the applicant wanted to do in Re Tewao and Minister for Immigration and Citizenship [2011] AATA 329, where his risk of recidivism seemed to be linked to alcohol abuse and troublesome company.
46.In summary, my view is that the overall risk that Mr Maurangi poses to the Australian community is low. I say this in noting that, in Minister for Immigration and Citizenship v Obele [2010] FCA 1445, Katzman J said of the risk of re-offending that paragraphs 5.2(2) and 10.1(2) of the Direction led to a requirement that the potential harm to the community is to be assessed in the light of both the probability of the harm occurring and the nature of the harm.
Second primary consideration – whether the applicant was a minor when he began living in Australia (paragraph 10.2)
47. This consideration provides relevantly as follows:
“(1) If the person was a minor when they began living in Australia and spent their formative years in Australia, thereby increasing the likelihood of establishment of greater ties and linkages to the Australian community, this is to be given favourable consideration.
(2) Less weight should be given if the person began living in Australia as a minor but was close to attaining adulthood at that time.
Note: For example, if the person was between 17 and 18 years old on arrival.”
48. On the face of it, Mr Maurangi satisfies this factor. He was 14 years of age when he began living in Australia, and he spent his early formative years here. He lived in Australia for nearly 3½ years before attaining adulthood. I have already referred to paragraph 5.2(4) of the Direction, which relevantly reads:
“(4) In some circumstances it may be appropriate for the Australian community to accept more risk where the person concerned has, in effect, become part of the Australian community owing to their having spent their formative years, or a major portion of their life, in Australia.”
49.Mr Maurangi left the Cook Islands at the suggestion and with the support of his eldest sister, who paid for his passage to Australia. At the age of 32 years, he has spent 18 years living in Australia and, not unexpectedly, he considers himself to be an Australian. His close family – two sisters and two brothers – live in Australia. Three of these siblings live in Adelaide and the fourth lives in Sydney. They are the family that he is closest to and while he has had limited his contact with them in prison, he has not done so because he does not wish to have contact with them. He has done so out of a sense of shame. Because of this shame, there has only been brief telephone contact with his eldest sister. According to his Conduct Report, there have been four visits in seven years from fellow prisoners’ families. He has no real contact with the Cook Islands, other than his abusive father, and he has had no contact whatsoever with New Zealand.
50.Although he has spent more than 10 years in prison, I am satisfied that Mr Maurangi has close ties to the Australian community as a result of his having lived here overall for 18 years, and because of the presence of his close family here.
51.I consider that this second primary consideration weighs against cancellation of Mr Maurangi’s visa.
Third primary consideration – the length of time that a person has been ordinarily resident (paragraph 10.3)
52. Paragraph 10.3(1) of the Direction provides as follows:
“(1) Reflecting the fact that the longer a period of residence in Australia the greater the likelihood of significant ties to the Australian community, more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character.
Note: For example, a period of more than 10 years of residence in Australia prior to a person engaging in criminal activity or activity which bears negatively on the person’s character would be an important consideration.”
53.Mr Maurangi was resident in Australia for about three years before he started committing offences. For the most part, these offences were initially of a relatively minor nature. The other, perhaps more serious, offences occurred in September 1996 (common assault) and in January 1999 (manslaughter). In Re Nguyen (supra), I referred to the decision of Deputy President R Handley in Re Puafisi and Minister for Immigration and Citizenship [2009] AATA 689 where, in considering the issue of the length of time ordinarily resident in paragraph 10.3(1) of Direction, the learned Deputy President said (at paragraph 40 of his reasons):
“I note Deputy President Walker’s decision in Re Heyward and Minister for Immigration and Citizenship [2009] AATA 536, when, at [307], he said, that ‘It is not the total period of ordinary residence that is relevant under Direction, however, but the length of time before engaging in criminal activity or activity that bears negatively on the applicant’s character’. In that case, DP Walker found that while five years was a significant period, it was insufficient to merit great weight under this consideration, especially as Mr Heyward had spent over a quarter of his time in Australia in prison”
54.In Re Tucker (supra), the Tribunal addressed paragraphs 10.2 and 10.3 of the Direction and the “more risk” provision in paragraph 5.2(4). At paragraph 51 of its reasons, the Tribunal said:
“We accept that Mr Tucker came to Australia at a young age and has been resident in Australia for a long period of time. He is a member of the Australian community but his period of residence has been punctuated by repeated acts of violence and other criminal behaviour. In the circumstances we give those considerations only moderate weight. We take into account that it may be appropriate that the Australian community accept “more risk” than otherwise would be appropriate (clause 5.2(4) of the Direction) but the nature and unpredictability of the risk of harm in Mr Tucker’s case means that this consideration does not provide much assistance to him.”
55.As already mentioned in paragraph 38, Mr Tucker was 46 years old and had come to Australia when he was aged 6 years.The Tribunal noted that his period of residence had been punctuated by repeated acts of violence and other criminal behaviour and, in the circumstances, it gave the residence in Australia considerations only moderate weight.
56.Mr d’Assumpcao referred me to the decision of Rares J in Rosson v Minister for Immigration and Citizenship [2011] FCA 194, where the learned Judge said (at paragraph 23:
“Nor do I accept Mr Rosson’s argument that cl 10.3 prevented the tribunal from giving unfavourable consideration to the length of time Mr Rosson had been ordinarily resident in Australia prior to his commencing to engage in his criminal activity or other relevant conduct for the purposes of cl 10(1)(c). There does not seem to be any legal or other reason why, in weighing a person’s entitlement to be granted or refused a visa, a decision-maker should not have regard, in considering the primary consideration in cl 10(1)(c), to the fact that the person had been ordinarily resident in Australia for a short period prior to engaging in the criminal or other relevant activity as an unfavourable, rather than a favourable, or neutral matter. Indeed, common sense would suggest that it might be a particularly relevant factor that a person had embarked upon criminal activity very shortly after arriving in this country, in determining whether it was in the national interest that that person be allowed to remain here with a visa granted by the government of the country under the Act. I reject the first round of review.”
In relation to what is said in Rosson, Mr Ower submitted (which submission I accept) that, as a matter of law, one can take into account the level of time spent in the Australian community, prior to committing an offence, as an unfavourable consideration. The fact that this has been put in the Direction as a positive consideration does not mean it cannot be taken into account as a negative consideration. In the present case, I do not think the level of time Mr Maurangi spent in Australia prior to committing an offence should be taken into account as a negative consideration. Mr Ower submitted that the facts of the case required a positive consideration.
57.In relation to paragraph 10.3(1) in Mr Maurangi’s case, applying the approach taken by the Tribunal in Re Tucker, I find that moderate weight should be given in respect of the consideration.
Fourth primary consideration – relevant international obligations – best interests of the child (paragraph 10.4.1)
58.Paragraph 10.4.1 of Direction relevantly states, in part:
“(1)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse to grant or cancel a visa is expected to be made.
…
(4)Under Australian law, it is generally presumed that a child’s best interests will be served if the child remains with its parents. ….”
59.The Direction sets out a number of factors to be considered in ascertaining the best interests of Mr Maurangi’s son. These include, relevantly, the nature of the relationship between the child and the person; the duration of the relationship, including the number and length of any separations and the reason(s) for the separation; the extent to which the person is likely to play a full parental role up to the child’s 18th birthday; the child’s age; the likely affect that any separation from the person would have on the child; and the existence of other persons who already fulfil the parental role in relation to the child.
60.Mr Maurangi has only one child, his son, who is 14 years of age. On his evidence, he has never met his son or spoken to him, nor has he recently spoken to his son’s mother. He would like his son to get to know him and he would find a way to get in contact with him, if possible.
61.In relation to the factors set out in paragraph 10.4.1(5) that I have referred to in paragraph 58 above, I make the following observations:
(a) The nature of the relationship is that of father and son. The son was born in approximately 1997, prior to Mr Maurangi’s imprisonment in October 2000.
(b) Mr Maurangi has not met his son, nor has he spoken to him. He has said that, if he was released, he would find a way to get in contact with his son, if possible. He would like his son to at least get to know him.
(c) Although he would wish to do so, he is unsure whether he is likely to play a parental role in his son’s upbringing up to his 18th birthday. I believe it is probable that he will not play such a parental role.
(d) As Mr Maurangi has had no contact with his son, any separation from him would have little effect on the son. His son’s mother already fulfils the sole parental role in relation to the son.
62.Mr Ower submitted that it would be fair to say that the best interests of his son would favour Mr Maurangi’s visa not being cancelled. However, he acknowledged that this is a factor than cannot be given a great deal of weight. I am satisfied that the son is Mr Maurangi’s natural born son and is an Australian citizen.
63.In my view, the best interests of Mr Maurangi’s son favour non-cancellation of his visa.
Other considerations (paragraph 11)
64.Paragraph 11 of the Direction contains a non-exhaustive list of other considerations that are not the primary considerations but, under paragraph 11.1, may be relevant, and if so, must be considered. Paragraph 11(2) provides:
“It is appropriate that these considerations, where relevant, must be taken into account but, generally, they should be given less weight than that given to primary considerations.”
65.Of these other considerations, the following matters are relevant:
(a) Family and other considerations (paragraph 11(3)(a)): Mr Maurangi’s close family ties are in Australia. His two sisters and a brother live in Adelaide and the other brother lives in Sydney. His elder sister has said that the family are willing to provide him with support. However, Mr Maurangi told me that he wants to go his own way. He wants to try to go to Berri, so he can be removed from adverse external influences. His eldest sister said that he would always have a bed in her home and that she would be able to assist him to find a job. This can be seen as somewhat of a safety net for Mr Maurangi in the event that his plans do not immediately eventuate. I note, in particular, the two letters from his sister (included in Exhibit R1 at pages 122-124 and pages 156-158) also demonstrate that there are close family ties involving Mr Maurangi’s siblings in Australia. I find that the cancellation of Mr Maurangi’s visa is likely to entail some disruption to his close family, especially when his eldest sister was responsible for bringing him to Australia (paragraph 11(3)(a)).
(b) Any links to the country to which Mr Maurangi would be removed (paragraph 11(3)(b)): It is suggested by the respondent that the appropriate country to which Mr Maurangi would be removed is New Zealand. There are relatives there who he has never met and does not know. He would be being asked to re-establish his life there without the benefit of his close family. Mr Ower has submitted (and I agree with his submission) that, if Mr Maurangi was removed to New Zealand it would be highly likely that he would return to the Cook Islands, and in those circumstances he would be at risk of relapsing into drug and alcohol abuse because of a lack of close family support, difficulty in finding work and other negative influences. His rehabilitation over the last 10 years would, in effect, be wasted in that he would be unable to use the skills that he has obtained in prison in the economic environment of the Cook Islands. The fact that Mr Maurangi has no real familial ties or support in New Zealand or the Cook Island is to be considered in his favour (paragraph 11(3)(b)).
(c) Hardship to an applicant or his immediate family (paragraph 11(3)(e)): If Mr Maurangi is required to return to the Cook Islands, this would obviously have adverse consequences in terms of his psychological wellbeing. He left the Cook Islands when he was 14 years of age, escaping from the violent and abusive environment that he had been exposed to. If he was removed to that environment, he would have to suffer again the torment and abuse that he was forced to experience as a child. Serious hardship would also be suffered by his close family in Australia if their brother had to return to the country where he experienced so much adverse treatment at the hands of his father. All the effort that his close relatives had gone to in order to allow him to live a better life in Australia, would have been wasted. These matters would cause hardship to both Mr Maurangi and his close family in Australia and is to be considered in Mr Maurangi’s favour (paragraph 11(3)(e)).
(d) Level of education (paragraph 11(3)(f)): Mr Maurangi has, during his time in prison, obtained a number of different qualifications, all of which would be of considerable assistance in the rural and regional Australian communities. Mr Maurangi has demonstrated, through his efforts over the last three or four years with his community service and involvement with the CFS, that these are matters capable of being considered in Mr Maurangi’s favour (paragraph 11(3)(f)(ii)).
(e) Whether the person has been formally advised in the past by an officer of the respondent (paragraph 11(3)(g)): On 14 October 2008, Mr Maurangi received the NOICC from the Department that the cancellation of his visa was being considered. In his evidence, he said that, prior to receiving the NOICC , he did not know or believe his visa might be cancelled. He did not know, before receiving the NOICC, that it was possible for the respondent to deport him to the Cook Islands or New Zealand (paragraph 11(3)(g)).
66.In summary, those of the factors under the heading “Other Considerations” that are relevant are in favour of Mr Maurangi being able to remain in Australia.
balance of considerations
67.For the reasons outlined above, I find there is a low risk to the protection of the Australian community were Mr Maurangi to remain in Australia. The anomalous nature of his serious crime, his family support and his prospects for rehabilitation from drug and alcohol abuse lead me firmly to that conclusion. I find that Mr Maurangi’s ties to Australia are not accurately reflected by the length of time he was resident here before he first offended and that the presence now of his close family members, even though he may intend to go his own way, means that his ties to Australia are strong.
68.I find that Mr Maurangi and his close family would suffer significant hardship if he were to return to the Cook Islands or New Zealand. Any remaining links that he may have to the Cook Islands would not be to his benefit. Finally, I find that Mr Maurangi was not formally advised of and did not understand what was at stake when he committed his serious crime. I consider that Mr Maurangi does not pose an unacceptable risk to the Australian community and that the low risk he poses is outweighed by the remaining consideration. On balance, the weight of consideration falls against the cancellation of Mr Maurangi’s visa.
decision
69.I set aside the decision under review and remit the matter to the respondent with a direction that the discretion under s 501(2) of the Act to cancel Mr Maurangi’s visa not be exercised.
I certify that the 69 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne
Signed: .............J Coulthard..................................
AssociateDates of Hearing 24 and 31 May 2011
Date of Decision 15 June 2011
Counsel for the Applicant Mr S Ower
Solicitor for the Applicant Camatta Lempens Pty Ltd Lawyers
Counsel for the Respondent Mr P d'Assumpcao
Solicitor for the Respondent AGS
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