Ngati and Minister for Immigration and Citizenship

[2009] AATA 693

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 693

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2009/2791 

GENERAL ADMINISTRATIVE DIVISION		)
Re		ANTHONY BRADLEY NGATI

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Mr P W Taylor SC, Senior Member

Date26 August 2009

PlaceParramatta

Decision For the reasons given orally at the conclusion of the hearing the decision under review is set aside.

...................[sgd]...........................

Mr P W Taylor SC
  Senior Member

CATCHWORDS

MIGRATION – visa cancellation – failure to pass character test – discretion – primary considerations – protection of the Australian community – minor when commenced living in Australia – best interests of children – other considerations – family ties – decision under review set aside

Migration Act 1958 (Cth) s 501

REASONS FOR DECISION

26 August 2009 Mr P W Taylor SC, Senior Member         

1.      At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the Senior Member’s reasons were stated orally. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent, pursuant to sub-section 43(2A) of the Administrative Appeals Act 1975, requested the Tribunal to furnish to it a statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the decision.

3.      The transcript is annexed and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal’s decision.

I certify that the 3 preceding paragraphs are a true copy of the reasons for the decision herein of Mr P W Taylor SC, Senior Member

Signed:         ...............[sgd].................................................................
  Associate

Dates of Hearing  25 and 26 August 2009
Date of Oral Decision                26 August 2009
Date of Written Reasons          10 September 2009
Counsel for the Applicant         Mr N Poynder
Solicitor for the Applicant          Ms L Payne, Legal Aid
Solicitor for the Respondent     Mr G Johnson, DLA Phillips Fox

EXTRACT OF TRANSCRIPT OF PROCEEDINGS  [3.23 pm]

MR TAYLOR:  
Mr Anthony Ngati is 28 years of age.  He has a 10 year old son and a 5 year old daughter.  For more than seven and a half years of his son’s life, and all but the first two months of his daughter’s life, Mr Ngati has been either in jail, or since 14 July 2009 in immigration detention. 

Mr Ngati has been in immigration detention for three reasons. First, he has a substantial criminal record, and thus does not pass the character test in section 501 of the Migration Act 1958.  Second, he is not an Australian citizen, and holds a temporary residence visa.  Third, on 12 June 2009, the Minister cancelled Mr Ngati’s visa because of his substantial criminal record. 

Mr Ngati does not challenge, and his substantial periods of incarceration substantiate, the Minister’s finding that he has a substantial criminal record and does not pass the character test.  Neither does Mr Ngati assert that he is an Australian citizen.  He applies to review the Minister’s decision solely on the basis that the cancellation of his visa was not the preferable decision in all the relevant circumstances. 

In this review of the cancellation decision, the Tribunal must comply with directions the Minister has made under section 499 of the Migration Act. On 12 June 2009, when the cancellation decision was made, the relevant direction was direction number 21. It had been in force since 2001. On 3 June 2009, nine days before Mr Ngati’s visa was cancelled, the Minister made a new direction, “Direction [No 41] - Visa refusal and cancellation under s 501”. This Direction took effect on 15 June 2009, and then revoked the previous direction. Thus, whilst the previous direction applied at the time of the visa cancellation, Direction [41] applies to these review proceedings.

Direction [41]

Direction 41 describes the object of the Migration Act as that of regulating the presence of non-citizens in Australia. More specifically, the purpose of that regulation is to protect the Australian community from unacceptable risks of harm as a result of the conduct, especially the criminal conduct, of non-citizens. The Direction also provides general guidance that requires consideration of both the nature, and the likelihood, of any harm the particular non-citizen may cause. In requiring that consideration, the Direction highlights the relevance of a range of factors. Those factors include (i) the length of the person’s Australian residence, (ii) the extent to which that period occurred during the person’s minority and (iii) relevant international obligations. The Direction specifically recognises that where a person has spent either their formative years, or a major portion of their life, in Australia and has become “in effect” part of the Australian community, it may be appropriate for the community to accept more risk than in other circumstances.

Apart from that statement of objectives and general guidance, Direction [41] mandates that any visa cancellation decision takes into account four primary considerations.  Those primary considerations are

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

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

(c)the length of the person’s Australian residence before they engaged in relevant misconduct

(d)relevant international obligations. 

Protection of the Australian community

I deal firstly with the question of the mandatory consideration of the protection of the Australian community.

The two principal matters that require evaluation under this primary consideration are (i) the seriousness of the person’s conduct, and (ii) the likelihood that it may be repeated. 

I will deal with the first of those categories.

The seriousness of Mr Ngati’s conduct

Mr Ngati appears to have something in the order of about 19 recorded convictions for offences he committed between October 1999 and November 2004.  Those convictions include; motor vehicle theft, breaking and entering, larceny,  possession of stolen goods, possession of prohibited weapons,  possession of prohibited drugs,   detaining a person with intent to take advantage, and robbery.  He appears to have committed a significant, but smaller, number of similar offences during his minority between the ages of 16 and 18.

Despite his many convictions, and consequential periods of imprisonment, Mr Ngati was sentenced to imprisonment for periods of more than 12 months on only three occasions.  These were

(i)on 29 November 2002, when he was sentenced to imprisonment for a period of two years and six months, with a non-parole period of 15 months.  That sentence related to a robbery that took place on 28 September 2001

(ii)on 22 February 2005, when he was sentenced to 15 months’ imprisonment with a non-parole period of 10 months for breaking and entering, an offence that appears to have been committed some time in 2004

(iii)His third substantial sentence was on 20 February 2006, when he was sentenced to concurrent periods of imprisonment for periods of 7 years (with a non-parole period of 4 years) and 3 years in relation to a robbery and a related detention of a person.  Those events occurred on 8 March 2004.

The September 2001 robbery involved Mr Ngati threatening a person at a petrol station, using that person’s card to make an ATM withdrawal, stealing the person’s car radio and forcing the person to hand over a necklace and a bracelet. 

The 8 March 2004 offences involved Mr Ngati approaching a person on a train.  He took the person’s wallet, told the person he had a knife, demanded the person accompany him to an Automatic Teller Machine.  There the person withdrew money and handed it over to Mr Ngati. 

In neither of the robbery offences did Mr Ngati actually inflict any violence.  Indeed, in the sentencing remarks relating to the March 2004 offence, the court accepted that the circumstances of that offence were at the lower end of the scale of seriousness - because no weapon was involved and there was no actual violence.  Nevertheless, the seriousness of that offence, no less than the previous robbery offence, is clearly indicated by the seven year custodial sentence that was imposed.  Furthermore, in relation to the circumstances of both robberies, it is reasonable to infer that on both occasions Mr Ngati deliberately conveyed both a willingness and an apparent capacity to use violence.  Moreover, he did say, with sufficient credibility on both occasions, to induce the victim’s cooperation in handing over their property.  At the tribunal hearing Mr Ngati presented as a very heavily built man of considerable size and likely strength.  If he had even approximately the same appearance at the time of these offences, his threatening behaviour would likely have conveyed a real apprehension of significant violence. 

Direction [41] gives various examples of offences that are to be considered as serious. Robbery is one such offence. It is to be understood as including any circumstances in which a person takes property from another as a result of the use of either force, intimidation, or threats. Clearly, the circumstances of Mr Ngati’s two robbery offences in September 2001 and March 2004 involve serious offences for the purposes of Direction [41]. The 15 month sentence that was imposed for the breaking and entering offence in 2004 also suggests that offence should be characterised as serious conduct contrary to the interests of the Australian community.

The likelihood Mr Ngati’s conduct may be repeated

I pass now to consider the likelihood that Mr Ngati’s conduct may be repeated.  Mr Ngati claims, and there is no real reason to doubt, that his many offences relate principally to heroin addiction.  That addiction developed despite, in his early years, a considerable sporting prowess, despite also his father’s support, and not least of all, the support of the woman who either was then, or shortly became, his fiancée, Ms King.  Moreover, it continued despite his earlier periods of imprisonment, a degree of available family support and concern, the birth of his son, and despite many self-interested assertions of intentions to rehabilitate.  It continued also, despite Ms King’s disapproval. 

Against that background, Mr Ngati’s recorded criminality shows a considerable and somewhat pathetic perseverance.  Nevertheless, in his evidence to the Tribunal, Mr Ngati did impress me with the candour of his acknowledgement of the self-destructiveness of his previous drug-dependence, and the serial thefts with which he funded it.  (In using the expression, “theft,” I include the robbery offences to which I have referred earlier.)  Mr Ngati impressed me also with his concession that he has, in the past, dishonestly asserted intentions to pursue rehabilitation.  He said that he used to say whatever he thought courts wanted to hear.  He recognised that this presented the Tribunal with the difficulty of knowing whether this hearing was just another one of those occasions when he was prepared to do the same, but he claimed this time he knew he was a different person.  He had sought help with his heroin addiction.  He had avoided heroin for over two years since some time after June 2006, when he began methadone treatment.  He said he felt he was functioning much better on methadone.  He cited some of his achievements in jail.  These included (i) reaching for the first time, a reasonably appropriate level of literacy, (ii) successfully undertaking a range of self-improvement courses, and (iii) undertaking and maintaining employment within the jail system.  With some modest pride, Mr Ngati claimed that he had become the highest paid employee in his work at the Goulburn Correctional Centre and had for some time been making regular contributions to his children’s maintenance. 

Mr Ngati has apparently progressed from an undisciplined heroin addict, to stable functioning and measured self-improvement with the assistance of the methadone program, and the support of prison rehabilitation facilities.  That progress is commendable.  But it is obvious that he has had and squandered many previous opportunities.  It is obvious too, at least from his candid concession, that he is well practiced in the art of the credible promise.

It is even more obvious that despite the measured success of his last several years in custody, the life that awaits him will present him with considerable challenges.  Those challenges will begin with his own personal adjustment to ordinary life.  They will include the responsibilities of fatherhood and proper supportive companionship to Ms King, his long-time supportive fiancée.  They will also include the personal anxieties he will surely face as he attempts, effectively, for the first time in his life, to secure and maintain employment. 

The difficulties Mr Ngati will face argue for themselves.  His real ability to overcome them is problematical.  Mr Ngati’s father is satisfied that his son has undergone a genuine change and is, indeed, not only highly motivated to change, but also now able to do so.  Mr Ngati Senior has observed that his son is more measured, thoughtful, and self-aware than he has ever been.  With some feeling, Mr Ngati Senior expressed himself by saying, “I have my son back now.”  Ms King is similarly persuaded of Mr Ngati’s resolve.  They may prove to be justified in their optimism, and hopefully they will be.  But objective considerations require a more guarded assessment.  Mr Ngati’s history, which is one involving sustained periods of drug addiction, related criminality, and a complete absence of any significant employment, or any real attempts at rehabilitation, other than in the later years of his most recent imprisonment, engender of themselves little confidence in his future conduct.  Whilst one can wholeheartedly hope to the contrary, the objective reality is that there are very considerable risks that Mr Ngati will do in the future what he has done so many times in the past: return to drug addiction and the related criminality necessary to fund it. 

The reality of that risk is partly suggested by some aspects of curiosity about the immigration reports that have been tendered in evidence.  There are two such reports, dated respectively 30 October 2008 and 19 May 2009.  The first of those reports, dated October 2008, concludes with a recommendation that whilst Mr Ngati does have a great deal of family support in Australia, he will need to make positive steps in addressing his offending behaviour before he will be recommended for release to parole.  Some seven months later, precisely the same authors of a similar immigration report concluded that, and apparently in the intervening seven months, Mr Ngati has made some commendable progress.  They record that it was two years since he had produced dirty urine, and over 12 months since his last offence.  Apparently it was on the basis of sentiments of that kind that Mr Ngati was granted parole on the expiry of the non-parole period for his last offences.  That non-parole period expired on 14 July 2009. 

The dissonance between the two immigration reports may have some relationship to a drug possession offence that occurred in April 2008 during Mr Ngati’s custody at Goulburn.  He explained that possession charge in the course of his evidence.   His explanation was essentially one that disavowed any involvement in any culpable sense.  He explained that he had picked up a matchbox at the jail and surrendered it.  It was then discovered to contain a very small amount of cannabis residue.  His explanation is not inconsistent with the subsequent urine test results that are recorded in the second of the immigration reports.  Those test results show that Mr Ngati was targeted for urine testing at various times in the latter part of 2007 and the early part of 2008, and then subject to programmed and random testing results thereafter.  All of those test results were unremarkable, except for the presence of the methadone, which, of course, resulted from his participation in the methadone treatment program.

There may also be some relevance in the offences which occurred in the early part of May 2008, which are recorded in the evidence as involving an episode of intimidation and disobedience, apparently at the Goulburn Jail.  However, those matters in themselves were not the subject of any specific evidence, and they do not of themselves detract from the overall conclusion that Mr Ngati has, certainly in the latter period of his imprisonment, made significant improvements towards rehabilitation. 

However, another very real consideration in assessing the likelihood of the repetition of Mr Ngati’s previous criminality is the cautious optimism recorded in the report provided by Mr Peter Champion, a consulting clinical psychologist, who has recently interviewed Mr Ngati and provided a detailed and impressive report.  In that report, Mr Champion records that at least part of an understanding to the background of Mr Ngati’s behaviour perhaps can be traced back to his youth, his difficulties at school and at home, during his mid-teens, and also the feelings of alienation from the family which, whether justified or not, Mr Champion records as perhaps leading to increased - what he called, “subculture identification,” - which in turn led to substance abuse.  Mr Champion recorded that Mr Ngati now acknowledged that his choices in terms of peers at the time had been poor, and that, as a result, his identification with any social attitudes and values had then increased over time.  Mr Champion also noted, however, that Mr Ngati, despite his poor educational achievements up until recent times, and despite his poorly developed vocabulary and verbal reasoning skills, nevertheless was performing in what Mr Champion described as either low-average or average abilities.  I interpret Mr Champion’s opinion to indicate that Mr Ngati is well able to handle with ordinary degrees of confidence, the activities of daily life, although he will experience some difficulty with written comprehension and expression, at least at a sophisticated level. 

Mr Champion ultimately addressed specifically the question of Mr Ngati’s risk of repeated criminality.  He said, with obvious accurate insight, that the real test is yet to come.  That test is how Mr Ngati will behave in the community, where he will be exposed once again to the full range of possible negative influences, including the availability of drugs, and the potential presence of his old associates.  Mr Champion said that if Mr Ngati can stay on the methadone program, if he can enter a rehabilitation program, if he can become usefully occupied, and if he can avoid his old associates, then there is potential for him to avoid relapse.

He considered, as a result of his own assessment of Mr Ngati that Mr Ngati had the ability to achieve the necessary rehabilitative change, but the reality is, as Mr Champion said, it is all really up to Mr Ngati.  The proper conclusion, in my opinion, is to recognise the apparent extent to which Mr Ngati has achieved a degree of rehabilitation.  It is proper, also, to recognise the availability to him in the future of the support of his father, the support of Ms King, and the goodwill and support of the parole facilities and rehabilitation programs that are available to him.  If he applies himself, he has the prospect of successful rehabilitation.  But the reality is, there is, and remains, in my opinion, a significant risk until some certainty is introduced to his future life, significant risk of a repetition of his past conduct.

The period and quality of Australian residence

I move then to consider the second and third of the primary considerations:  the period and quality of Mr Ngati’s Australian residence.  Mr Ngati came to Australia with his parents and two older brothers in about mid 1982.  He was then less than 12 months old.  He has lived in Australia ever since.  He grew up and went to school in Sydney’s western suburbs, apart from a short period when he lived with his parents on the Gold Coast. 

As I have said, Mr Ngati’s criminal conduct started when he was about 16.  By then he had 11 younger siblings, all of whom had been born in Australia.  The youngest of them was his sister, Dannielle.  At that stage, when Mr Ngati was 16, Dannielle was a toddler of about one year of age.  Mr Ngati had, by that stage, begun his friendship with Ms King, a friendship that shortly became very close, and that was apparently endorsed by each of their respective families. 

By the time he was 18 Mr Ngati had spent all of this formative years in Australia.  In addition, by virtue of his social and educational experiences, as well as his family situation, he had very numerous connections with the Australian community.  Not the least of those was his Australian fiancée, Ms King and, by mid 1999, their son Kodi.  He could, with a factual justification, by that stage claim to be part of the Australian community, although his conduct had for some time defied the standards of lawfulness the community imposed and was entitled to expect. 

Mr Ngati’s practical status as a part of the Australian community is an important consideration, but it does not preclude debate about the appropriateness of the cancellation decision.  Mr Ngati and the Australian community have, by virtue of their long association, especially during his formative years, to a substantial extent not just reciprocal claims, but also reciprocal responsibilities.  Mr Ngati, at least at one stage, seems to have thought that the Australian community’s responsibilities to him, and his continued residence, were limitless entitlements. 

In February 2003, after he had been imprisoned for the first of the robbery offences, Mr Ngati received a formal warning from the Minister about the potential cancellation of his visa if his criminal offences continued.  He paid, so it would seem, no significant regard to this warning, apparently, partly because of his then coping mechanisms, which seem to have been simply to ignore what he did not want to hear, and partly because he could not conceive the real probability that he was at any risk of being required to leave Australia.  Plainly, there are limits to the extent to which the Australian community should continue to accept the risk of his repeated criminality.  The Minister’s cancellation decision shows, on one view, that Mr Ngati has clearly exceeded those limits. 

A remaining important factor under this primary consideration is the length of time that Mr Ngati was a resident of Australia before his criminal conduct became manifest.  On one view, it might be said that a very substantial period of 16 years or so elapsed before his conduct came under notice.  That, of course, is true, but its significance is somewhat diminished by the fact that during those 16 years Mr Ngati was a minor, enjoying the support, and no doubt the effective discipline and supervision of his parents and elder siblings.  From the age of 16, when he appears to have managed to achieve a degree of independence and assertiveness, his conduct has been, in effect, significantly characterised by his heroin addiction, ill discipline, and criminality. 

I move now to consider the fourth of the mandatory primary considerations.  They are expressed in Direction [41] under the heading Relevant International Obligations, but it is clear that the relevant consideration is the best interest of, principally, Mr Ngati’s two children, Kodi and Juanita.  Kodi was born in June 1999 and, as I indicated earlier, is now 10 years of age.  Juanita was born in September 2005, and is now almost five.  It is these children’s best interests that fall primarily for consideration.

The reality is that for the last five years, that is, almost the whole of Juanita’s life, Mr Ngati has been in jail.  His physical contact with the children in that time has been limited to their periodic jail visits.  Ms King says these have been regular, at least fortnightly visits as circumstances permitted.  She also said that Mr Ngati has tried to maintain daily telephone contact with her and the children during the period of his imprisonment.  She says that, despite Mr Ngati’s long period of imprisonment, she has tried, and she says successfully, to maintain his active involvement, at least in the consideration of the children’s welfare.

Ms King says that Kodi has a good relationship with his father.  They share a particular interest in football, and Mr Ngati explained that for a time, up until his mid teens, he had been a particularly promising rugby league junior.  Kodi has, to some degree, a similar aptitude, and Mr Ngati is proud of and keen to encourage that ability. 

Mr Ngati’s relationship with Juanita has been hampered by the fact of his limited physical contact with her, and, no doubt, also her very tender age.  Ms King says that they had, or have a good relationship, nevertheless, and that it has developed particularly in the period since Mr Ngati has been at Villawood, where they have been able to enjoy much longer and more regular, and closer contact.  However, Mr Ngati at one stage in his evidence said that one of the things that had hurt him was the realisation that, at least initially in his period of getting to know Juanita, she was scared of him.  

Perhaps his perceptions of her reactions to him overstate the reserve that might reasonably have been shown by a very young child meeting a relatively unfamiliar person in the surroundings of a prison visiting room.  Whatever that reality may be, the fact is that Mr Ngati’s opportunities to have developed a relationship of any real strength and closeness, certainly with Juanita, must have been very limited.  I would infer that the closeness of their relationship is perhaps more aspirational than reflective of the underlying reality.

Viewed from the perspective of an objective observer, the material contribution that Mr Ngati has made in the past to his children’s welfare should be regarded, in my opinion, as relatively slight.  His capacity to contribute in the future, in a significant and positive way, is problematic.  He asserts - and I accept that he does so genuinely - a determination to be a real father to them in the future.  He also explains, again with a degree of credibility, that he now realises he has responsibilities to them, and that his own sense of worth is tied into his ability to provide them at least with the devotion and emotional support they are entitled to expect of him.  But as apparently credible as these assertions are, Mr Ngati’s real ability to carry them through to practical reality remains to be seen. 

In terms of his history, whatever goodwill one wishes to extend to Mr Ngati, at least his longer term history does not entitle him to the benefit of much credibility.  Nevertheless, it is plain from Mr Ngati’s own evidence that he has made attempts to keep regular meaningful contact with Kodi, and has a real concern to establish a proper relationship with Juanita.  He is at least, I accept, genuinely motivated with concern for his children. 

It is also apparent from Ms King’s evidence that she has consistently promoted a constructive relationship between Mr Ngati and the children.  She explained how much the family was looking forward to his release from custody in mid 2009, and how disappointed she was when he was transferred to Villawood as a result of the Minister’s decision, rather than being released.  She also explained that she and the children had visited Mr Ngati daily, for extended periods, whilst he has been at Villawood.

It’s proper to conclude that Ms King has brought the two children up with a determination to give them a clear understanding of Mr Ngati’s position as their father and of his potential importance to her and them in their family unit.  It’s also clear that Mr Ngati, at least, aspires to provide the children with paternal affection, encouragement and stimulus.  It is clearly in their best interests to have the opportunity for each of those intangible, but very important, potential benefits.  Provided only that Mr Ngati can live up to his avowed intentions, and relatively newfound resolve, both of his children are likely to benefit substantially, at least, to the extent of the affirmation that parental support and encouragement can provide.

And I add to that observation this consideration.  If Mr Ngati does, indeed, prove to have the determination and the good fortune necessary to achieve the rehabilitation he professes a desire to achieve, his parental guidance will have, as a consequence of his own experience and achievements, a particular credibility, especially perhaps to his son. 

In attaching significance to Mr Ngati’s paternal involvement with his children I am particularly impressed by Ms King’s commitment to Mr Ngati.  Despite the isolation and hardship his conduct has inflicted on her, she remains ready to support him, and to encourage his active involvement with their two children.  The children’s respective school and child care centre report very favourably on each of the children’s progress and achievements.  Their progress attests to Ms King’s maternal competence and devotion in what can have only been very difficult circumstances.  That she is determined to encourage Mr Ngati’s involvement in the welfare of her children bespeaks her confidence about his intrinsic qualities which, even if it is not readily shared by outsiders, cannot be lightly contradicted. 

Ms King says that if the visa cancellation decision stands, and Mr Ngati was forced to return to New Zealand, she would not follow him there with the children.  Neither she nor Mr Ngati has any family ties in New Zealand.  The children are settled here and progressing well.  She could not, and would not, uproot them especially having regard to the extent of their family ties in Australia. 

Having said that, Ms King conceded that the possibility of taking herself and the children to New Zealand is not something that she and Mr Ngati have discussed to any significant extent.  Part of the reason for that, as I recall her explaining, was a disinclination to even have to address the possibility that Mr Ngati might be required to leave Australia.  However, even if their discussion of that topic has been limited, I am satisfied, having regard to Ms King’s concern for the children’s welfare, the existing support available to her in Australia both from Mr Ngati’s family and her own, that the prospect of her leaving Australia with the children if Mr Ngati was required to return to New Zealand is not a realistic possibility.

I accept that if Mr Ngati was required to leave, the children would remain here and their future contact with him would, for all practical purposes, be extremely limited indeed, and likely to become non-existent over time. 

I turn then to the question of family ties in Australia.  The most significant of Mr Ngati’s ties in Australia is, of course, Ms King and the two children.  Their relationship is one of particularly long-standing.  They met in their very early - I was going to say in their very early teens, but probably it’s more accurate to say in their pre-teens.  The length of their relationship, enduring as it has through adolescence and all the trauma that has followed from Mr Ngati’s behaviour, must, I would accept, have formed a peculiar bond - when I say “peculiar” I mean one of particular significance between the two of them.

They began to live together in 1997.  Kodi was born in 1999.  Ms King has stood by Mr Ngati despite all of his destructive addiction, criminality and disappointment.  For his part, Mr Ngati now avows a realisation that he has tested Ms King’s devotion and support to the limits of her willingness to endure.  He says he does not want to lose her.  She is, he said, his only love, a proposition that can hardly be gainsaid given the origin and length of their relationship and her remarkable perseverance.  Her support of him, and his avowed realisation that he must now justify its continuation, would appear to me to be a matter of fundamental importance in his motivation to rehabilitate himself.

Apart from Ms King, Mr Ngati has a very significant immediate and extended family in Australia.  His entire extended family, consisting of his surviving grandparents, parents, siblings, aunts, uncles and some 22 nieces and nephews, all live in Australia.  Of the siblings that remain in Australia Mr Ngati’s youngest sibling is Dannielle, to whom I referred earlier.  She is now 13 years of age, some three years older than Mr Ngati’s son, Kodi.  She shares Ms King’s first name and has a close relationship with her and the two children. 

In addition, Mr Ngati has the prospect of both the emotional and tangible practical support of his father.  Mr Ngati senior gave evidence in what impressed me as the evidence of an articulate and insightful parent.  I infer that there have, in the past, been some difficulties in the relationship.  That, whatever its precise source, is readily apparent from Mr Ngati Senior’s evidence that there was a time when he had reached the limits of his capacity and willingness to help his son. 

But as I also indicated, of more recent times, Mr Ngati Senior has detected a change in his son, and to repeat again the expression that he used in evidence, he has found him again.  Mr Ngati Senior offers his son the prospect of some supportive employment with him, at least for a time, as a means of assisting Mr Ngati Junior to re-establish himself. 

In addition, Ms King has an uncle who is perhaps able and willing to provide Mr Ngati with some other employment.  I understand from Mr Ngati Junior’s evidence that Ms King’s uncle operates a swimming pool installation business and has the capacity to make available to Mr Ngati Junior labouring work in connection with that business. 

Mr Champion indicated in the course of his report that the existence and extent of Mr Ngati Junior’s surviving family ties in Australia may not be an unalloyed benefit.  I infer from parts of his report that Mr Champion had some shadowy impressions of some past difficulties within the family.  However, when I pressed Mr Champion specifically to give details of that, he said that Mr Ngati Junior had explained to him that, in his view, those difficulties had long since resolved.  Part also of Mr Champion’s diffidence, and it was a point remarked upon on the Minister’s behalf, was that Mr Ngati’s family ties existed in the past, during a period of prolonged misbehaviour, just as they will continue in the future.  That point has some force but it seems to me it is modified by three considerations.

The first of those is the evidence that both Ms King and Mr Ngati Senior gave about their detection of significant change in Mr Ngati Junior’s motivation and outlook.  The second consideration is the credibility I am prepared to attach to Mr Ngati Junior’s own assertions of a motivation to rehabilitate, and I accept also that that evidence is not just a matter of assertion.  He is able to point with some justification and pride to the achievements he has managed to make within the latter period of his most recent imprisonment.  The third consideration that is important is the unfortunate very recent and unexpected death of Mr Ngati’s elder brother.  He died on Wednesday last week.  Mr Ngati Junior gave evidence of the sense of loss that he has felt and the impact that it has had on his family, particularly his mother.

Mrs Ngati herself gave evidence.  I will not dwell upon, lest it add to the family’s discomfort, her sentiment, except to say that she conveyed to the Tribunal what I would infer as desperation that she not lose another son as a consequence of Mr Ngati being required to leave the country.  It takes no sense of imagination to appreciate the sense of loss which the family must feel, and Mr and Mrs Ngati Senior in particular.  It is a relevant consideration that the impact upon the family potentially, as a result of requiring Mr Ngati Junior to leave the country, would add immeasurably to the family’s current misfortune. 

The ultimate decision that is to be made is one that cannot be reduced to a set of propositions by which a particular answer comes about.  There is a great deal of reason to be apprehensive about Mr Ngati’s ability to put his life into a situation where he becomes an effective member of the community and a member of the community from whom no protection is required.  Having said that, there are also good reasons, perhaps for the last time, to entertain a degree of confidence that he has both the motive, the opportunity and the support to achieve for himself the life that promised when he was 16, and which through his own conduct he has, up until more recent times, put significantly at disadvantage. 

On balance, I conclude that the correct and preferable decision is to set aside the decision under review. 

MATTER ADJOURNED at 4.20 pm INDEFINITELY

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