Parua Paniora and Minister for Immigration and Citizenship
[2012] AATA 766
•5 November 2012
[2012] AATA 766
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/3485
Re
Parua Paniora
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Mr Dean Letcher, QC, Senior Member
Date 5 November 2012 Place Sydney The decision under review is affirmed.
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Mr Dean Letcher, QC, Senior Member
CATCHWORDS
IMMIGRATION & CITIZENSHIP – visa cancellation – character test – substantial criminal record – Ministerial Direction No 55 applied – protection of the Australian community – risk of future harm unacceptable – decision under review affirmed.
LEGISLATION
Migration Act 1958 (Cth), s 501
Ministerial Direction [No.55] – Visa refusal and cancellation under section 501
REASONS FOR DECISION
Mr Dean Letcher, QC, Senior Member
23 November 2012
Parua Paniora (the Applicant) applied to this Tribunal for review of a decision of a delegate of the Minister for Immigration and Citizenship (the Minister) of 2 August 2012 cancelling his Class TY Subclass 444 Special Category (temporary) visa. The delegate's decision under s 501(2) of the Migration Act 1958 (the Act), was made on the basis that he reasonably suspected that the Applicant did not pass the character test in s 501(6) of the Act, and that the Applicant failed to satisfy him that he did pass the test.
The delegate found that the Applicant did not pass the test because he had a substantial criminal record under s 501(7) of the Act, in that he had been sentenced to a term of imprisonment of 12 months or more. In fact on 30 January 2006, the Applicant was sentenced in the District Court of New South Wales to imprisonment for ten years.
Having made that finding, a discretion was enlivened and the Delegate then applied the criteria set out in Ministerial Direction No. 41, to determine whether he should use his discretion to cancel the visa. In this case, the basic question was whether the Applicant posed an unacceptable risk of harm to the Australian community pursuant to clause 5.1(2) of the Direction. Direction No. 41 was revoked and replaced by Direction No. 55 commencing 1 September 2012, and I am guided by the new Direction in this review. The principles of Direction No. 55 are used to determine whether the risk of future harm from a non-citizen is unacceptable and, thus, how the discretion of the Tribunal standing in the shoes of the Minister should be exercised.
PRINCIPLES OF DIRECTION NO. 55
The Principles set out in clause 6.3 may be summarised as:
·Residence in Australia is a privilege given with an expectation the person will be law-abiding and not threatening harm.
·A non-citizen who commits a serious crime generally forfeits that privilege.
·Some criminal behaviour is so serious that any risk of repetition is unacceptable.
·Australia has a low tolerance of criminal conduct by people who have been here for only a short time.
·Limited stay visa holders who commit crime should not expect to be allowed to stay.
·The length of time of a positive contribution to Australia and the consequences to minors or immediate family in Australia of visa cancellation.
PRIMARY CONSIDERATIONS
In deciding whether to cancel a visa the primary considerations (clause 9) are:
A.Protection of the Australian community from criminal or other serious conduct.
B.The best interests of minor children in Australia.
C.Strength, duration and nature of the person's ties to Australia.
D.Any 'non-refoulement' obligations to the person.
Clauses 9.1 and 9.1.1 outline the factors which must be considered concerning the nature and extent of risk to the Community from a person's misconduct, given the commitment of government to protect the community from harm. The factors will be considered individually later for their significance in the context of this particular case.
There are other considerations to be taken into account where relevant (clause 10), including but not limited to, effects on immediate family, Australian business interests, impediments to the person by reason of age, health, language or cultural barriers and social, medical and/or economic support available, if removed to a home country .
FACTUAL BACKGROUND
The Applicant was born in September 1971 in the Cook Islands where he lived until arrival in Australia on 30 November 1999 aged 28. His natural parents abandoned him as a baby and he was raised in the family of his maternal uncle. He says that he began drinking excessive alcohol aged 12, but completed Year 10 high school and had employment as a cameraman, in a bakery and on the wharves. He said that he had 'police trouble' before he left but no imprisonment. In Australia he obtained employment promptly and, for about five years until jail, he worked as a steel fixer, a well-paid and physically demanding job.
Soon after arrival the Applicant began a relationship with Ms ‘B’ and a child, ‘T’, was born in October 2001. However, on 12 November 2001 he was charged with assault of Ms B and was convicted and fined $250.00. That relationship ended, and on 26 January 2003 he married Ms ‘Z’. On 6 October 2003 he was charged with two counts of assault and malicious damage to property and was placed on a good behaviour bond for 18 months. There was an argument in which he struck his pregnant wife, kicked in a door and hit his sister-in-law. Two months later in December 2003 a child ‘A’ was born. Ms Z divorced the Applicant on 14 March 2011 and wishes no further contact with him, except as it may be in A’s interests to have contact with her biological father.
On 16 April 2005 the Applicant met a woman in a street near his flat. She went with him to his flat but when she tried to leave he hit her repeatedly, threatened to kill her and then raped her. The sentencing judge described it as “a crime of great seriousness involving as it does, great violence and threats to kill ...This man remains a danger to society and is to be dealt with accordingly”. The judge did not accept that rehabilitation had begun, nor that there were any special extenuating circumstances, and found that the evidence was 'not strongly indicative of contrition'. He found that the victim's treatment controlling her condition of epilepsy had been jeopardized by the crime. The Applicant had pleaded guilty at the first court hearing and was given a discount on sentence accordingly. I see no reason to repeat the details of the incident but, on any account, it was an unprovoked, vicious attack, on an unsuspecting woman. The Applicant was arrested on 18 April 2005 and has been in custody ever since.
EVIDENCE IN THE TRIBUNAL HEARING
The Applicant said that he believed his trouble was alcohol, and that he had been drinking each time he committed these assaults. He had not sought treatment before, but in jail he had done so. He said that he had undertaken every rehabilitation and vocational course that he could. He produced evidence of TAFE and other courses including 47 SMART sessions; nine AA sessions; and a gambling program. He had worked consistently at jail employments.
In his evidence he apologised for his crimes, said he was determined to change his life around and be a good father to his children. He said that being in jail had “helped a lot” and if released into the Australian community he would never drink again.
As to the children, he said that A had visited him regularly but T lived in Brisbane so could not, but he spoke to her by telephone very regularly.
Ms ‘C’, T’s aunt with whom T and her mother live in Brisbane, gave evidence of T’s enthusiasm about her father, about receiving his regular phone calls, writing ‘little letters’ to him four or five time a year. She looked forward to the Applicant being able to help with the three children of Ms B: “[Ms B] has always wanted a family with Parua” she said, “but it didn’t work out…They’ll be getting a house together nearby after a period. She’s working and saving… Parua is wanting to take them [the other children] on as well”. She said that the fathers of the other two children saw them only on birthdays.
Ms B is the single parent of three children, none of whose fathers has remained available as a father figure. She has cared for T since birth. She was very non-committal about a possible marriage-type relationship with the Applicant. When asked whether she saw them as having more than a friendship she said: “I haven’t thought about it…we will take it slowly…see how it goes”. She asserted that there had been an amiable end to her relationship with the Applicant, denied heavy alcohol use by him and denied any but an isolated act of violence to her. This was in direct contradiction to the information she gave to the Probation Service in 2005 and what he had told the psychologist.
Ms B appeared most attracted by the Applicant’s ability to earn as a steelfixer: “We need him here to help and work”, she said “We need him here in Australia to work. If he was sent to the Cook Islands he couldn’t support his daughter”. She said that she would not consider moving to the Cook Islands if he were deported there, and if it was to New Zealand she would be extremely uncertain. She confirmed that T was very keen about having the Applicant as a father. I formed the impression that the emotional relationship between the Applicant and Ms B was tenuous or non-existent, and that her main motivation was financial security.
Mr Chris Turk, Chaplain at Junee jail, believed that the Applicant was sincere in his faith, “missed the regular contact with his wife and young daughter” and was keen to go into a Work Release program.
I accept that the Applicant is sorry for the position in which he finds himself. I accept that he has attempted entry into programs for alcohol and sexual offenders. He was assessed as suitable for the CORE sex offenders program but a place has not been available. There is a genuine difficulty for a prisoner in New South Wales seeking rehabilitation programs and trying to prove he has been reformed. The programs may have no vacancies; they are available only shortly before a release date; the prisoner is moved to a different jail without the program – these are all difficulties beyond the prisoner’s control. As well, behaviour in an all-male, teetotal, highly restricted jail environment may offer little guide to likely behaviour back in the community.
The Respondent’s evidence consisted of a number of detailed reports on the Applicant by a psychologist and the Probation and Parole Service from before sentence until now; prison and police records; and the sentencing judge’s reasons.
A. ASSESSMENT OF RISK TO THE COMMUNITY
Protecting the Australian community from future criminal conduct is one of the primary considerations when deciding whether a visa should be cancelled.
The particular principles set out in Clauses 9.1 and 9.1.1 of Direction No 55, concerning nature and extent of the risk, which I am directed to consider are:
(i) Violent and/or sexual crimes are viewed very seriously
The Applicant has been assessed as “a moderate risk to the community in terms of sexual or violent re-offence” (Psychologist’s report dated 19 November 2005). The Pre-Release Report of 7 August 2012 notes that he lacks community ties, has minimal family support and has not yet addressed his sexual offending behaviour. It expresses “concern that Mr Paniora’s offender behaviour appears to be escalating to involve both physical and sexual violence”, and this concern was reflected in both the earlier Pre-sentence Report and in the judge’s reasons.
The Applicant’s offences are all of violence, all concern women and all involved alcohol. The offence for which he is in jail arose after a chance meeting with a woman he had never met before and who did not provoke the violence and did not consent to sexual intercourse. It was a brutal rape.
(ii) Crimes against vulnerable members of the community are serious
All the Applicant’s offences were against women, the last against a woman prone to epileptic seizures.
(iii) Sentence imposed by the court
The sentence of 10 years with a non-parole period of seven and a half years took into account a 20 per cent reduction for an early plea of guilty (as a matter of NSW sentencing policy). The Applicant had no realistic defence available and the plea may reflect pragmatism rather than contrition. The judge noted that the material available was “not strongly indicative of contrition”.
(iv) Frequency of offending and any trend of increasing seriousness
Within two years of arrival in Australia the Applicant assaulted his partner, within another two years he assaulted his new, heavily pregnant partner and her relative and within another 18 months he committed the rape.
As all the reports note and the judge repeated, there is escalation with greater violence and explicit sexual content. The psychologist Ms Seidler’s report said, inter alia, that the Applicant had:
“a history of relationship and intimacy difficulties which has included regular domestic violence… appears to have problematic patterns of thinking associated with entitlement…has poor behaviour and impulse management skills and this contributes to his drinking and also his anger management difficulties… unable to maintain any sobriety or address his problematic relationship and other behaviours whilst in the community”.
She also noted that “he appeared to find the victim’s resistance in the offence sexually exciting, which indicates some level of deviant interest”. I am not aware of material to base that belief and I do not take it into account.
(v) Cumulative effect of repeated offending
The Applicant has said that after assaulting Ms B she ‘kicked him out’. The relationship with Ms Z was “coloured by alcohol abuse and domestic violence”, leading to separation and the rape occurred shortly thereafter. I believe Ms B’s evidence was strongly affected by her wish for financial support, and my view is that the relationship between the two is tenuous or non-existent. The Applicant has almost no family or social support as a result of his repeated offences.
B. BEST INTERESTS OF MINOR CHILDREN
A primary consideration is the best interests of the Applicant’s two children. It is generally accepted that it is beneficial for children to be with their natural parents unless there are disqualifying factors:
A.‘T’ born in October 2001 to Ms B is now aged 11 years. Father and daughter have never lived together, T has not seen him since 2005, but she expresses great interest in him and he in her. If the Applicant remains in Australia, I doubt that he would establish a marriage-type relationship with Ms B and hence live with T. The type of contact likely would be by telephone with occasional personal meetings.
B.‘A’ born in December 2003 to Ms Z is now aged 8 years. This child was only 16 months old when the Applicant entered jail. She has seen him on jail visits only. Her mother did not give evidence, but the Applicant accepts that the mother will not assist A’s contact with T and will assist the Applicant’s contact only for A’s sake. It seems unlikely that A (living in Sydney) would ever have a close relationship with the Applicant (who indicated he may live in Brisbane if in Australia) while her mother makes the decisions.
In the case of each child, I believe the type of contact she had in the past, and would be likely to have if the Applicant were deported, is the same degree of contact she would have if he were not deported. That is, telephone contact with occasional supervised meetings until each child was 18. That pattern could occur whether the Applicant was in the Cook Islands, New Zealand or Australia. There is a greater probability of closer contact being maintained if the Applicant remained in Australia. On the other hand, I believe that the probabilities of further offences and further jail terms are higher if he did remain here because of the more stressful environment and likely greater demands on him. This consideration must weigh in the Applicant’s favour but, given the slight nature of his parental role in the past and the uncertainty of what role he may play in the future, it does so only to a minor extent.
C. STRENGTH, DURATION AND NATURE OF TIES TO AUSTRALIA
The Applicant was aged 28 years when he entered Australia in 1999. He had two relationships, neither of which has continued at any intensity, and he has two children born here, but he has never lived with them and had very little responsibility or caring role with either. Of his 13 years in Australia, seven and a half have been in jail. He has some family members here but no contact with them; he has no Australian social network and no definite accommodation or employment arrangements after release. The Applicant does not have substantial connections with the Australian community except for the fact of his fathering of the two children as discussed. This factor does not assist the Applicant.
D. ANY NON-REFOULEMENT OBLIGATIONS OF AUSTRALIA TO THE APPLICANT
There is no evidence of any punitive, persecutory or discriminatory consequences if the Applicant were to be returned to the Cook Islands or New Zealand. There are no such international obligations on Australia.
OTHER FACTORS
I have taken into account the other considerations (pursuant to clause 10 of Direction No 55). I do not find that there would be any significant effect on his immediate family, nor on Australian business interests. If the Applicant were deported, I see no significant impediment to him by reason of his age (now 42 years), his health is good and he speaks the languages of the Cook Islands and New Zealand. There are no other significant detriments to the Applicant, beyond less favourable employment prospects and opportunities.
FINDINGS AND CONCLUSIONS
The Applicant fails the character test in s 501(6) the Act. The Applicant poses an unacceptable risk of harm to the Australian community if he were allowed to remain here. He has a history of repeated violent crime and unresolved difficulties with alcohol, relationships and aggression. There is a significant risk of re-offending. The best interests of his two children, T and A, have been considered as a primary consideration, and those interests are not determined to be seriously affected by the cancellation of the Applicant’s visa. Each child has a mother who had the sole effective care and custody since birth and the Applicant had little part in their support, care and upbringing.
DECISION
The decision under review is affirmed.
I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Mr Dean Letcher, QC, Senior Member
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Associate
Dated 23 November 2012
Date of hearing 16 October 2012 Date of decision 5 November 2012 Date of written reasons 23 November 2012 Advocate for the Applicant D Bashan, Welfare. Representative for the Respondent C Darcy, Department of Immigration and Citizenship
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