Pauu and Minister for Immigration and Citizenship
[2009] AATA 106
•17 February 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION
[2009] AATA 106
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/0618
GENERAL ADMINISTRATIVE DIVISION )
Re Rangi Roy PAUU
Applicant
AndMinister for Immigration and Citizenship
Respondent
DECISION
TribunalProfessor GD Walker, Deputy President
Date17 February 2009
PlaceSydney
DecisionThe decision under review is affirmed.
………………[sgd]…………………...
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION – visa cancellation – character test - whether the applicant passes the character test in s 501(6)(a) of the Act, given his substantial criminal record as defined in s 501(7) of the Act – applicant found to fail the character test - whether the tribunal should exercise its discretion to set aside or affirm the decision made by the delegate of the minister to cancel the applicant’s visa, applying ministerial Direction No 21 – primary considerations and other considerations – decision under review is affirmed.
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RELEVANT ACT/S:
Migration Act 1958: ss 499, 501
CITATIONS
Pomare v Minister for Immigration and Citizenship [2008] FCA 458
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Green v Minister for Immigration and Citizenship [2008] FCA 125
Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56
Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN N129
Minister for Immigration and Multicultural Affairs v Ali (2000) 62 ALD 673
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354
Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441
Al-Kateb v Godwin (2004) 219 CLR 562
Re Zhou and Minister for Immigration and Citizenship [2007] AATA 1766
Robtelmes v Brenan (1906) 4 CLR 395
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608
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OTHER REFERENCES
Direction No 21
Johan Norberg, In defence of global liberalism, Policy, winter 2006, 43
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REASONS FOR DECISION
17 February 2009
Professor GD Walker, Deputy President
Basic facts
1. The applicant Rangi Roy Pauu was born in June 1984 in New Zealand and is a citizen of that country. He has never been married but was formerly in a de facto relationship.
2. Before coming to Australia, the applicant was convicted in New Zealand of possessing an offensive weapon on 1 November 2001 and called upon to come up for sentence if required. He was convicted on 18 December 2001 of male assaults, female (manually) and sentenced to supervision by community corrections, being ordered to undertake anger management training. He was also admonished and discharged for an offence of robbery on 27 November 2001.
3. The applicant first entered Australia on 26 July 2002 on a class TY subclass 444 (special category) visa at the age of 18. Since then his only absence from Australia has been between 8 July and 20 July 2005. He has not previously been warned that he was under consideration for visa cancellation.
4. After coming to Australia the applicant was convicted of, or otherwise dealt with for, the following offences:
03/02/2003Enter dwelling with intent to commit an indictable offence and possessing dangerous drugs: no conviction recorded, 60 hours community service and restitution;
09/05/2003Enter dwelling and commit indictable offence: fined $400;
30/07/2003Common assault, DVA breach, enter or in premises with intent to commit an indictable offence: 12 months’ probation on each charge;
01/03/2004Breach of probation order (DVA): fined $300;
14/10/2004Common assault (2 counts): good behaviour bond, fined $400;
21/02/2005Breach probation order: fined $500;
Breach bail undertaking: fined $300;
Wilful damage: restitution $263.10;
Breach D & FPV order: fined $700;
14/06/2005 Possessing dangerous drugs: fined $4200;
Enter premises and commit indictable offence: 3 months' imprisonment, wholly suspended for 12 months;
16/02/2006Assaults occasioning actual bodily harm, breach DFVA order: 7 months' imprisonment on each charge;
Obstruct police officer, wilful destruction, wilful damage (2 charges), possessing dangerous drugs: 2 months' imprisonment on each charge;
Possessing dangerous drugs, possess utensils or pipes for use, wilful damage of police property, breach of DFVPA order, stealing: 1 month imprisonment on each charge;
02/05/2006Wilful damage/destruction: 6 weeks' imprisonment
20/11/2006Breach of DFVPA order, failure to appear: 2 months' imprisonment cumulative;
Assaults occasioning actual bodily harm (5 charges): 2 years' imprisonment (eligible for parole 19/11/07);
Wilful damage (2 charges): 2 months' imprisonment concurrent;
Burglary and commit indictable offence: 3 months' imprisonment concurrent;
Breach DFVPA order: not further punished; and
02/02/2007Wilful damage: 3 months' imprisonment concurrent (eligible for parole 26/04/07).
5. On 18 January 2008, the applicant was detained by a department officer and handed a notice of visa cancellation. On 15 February 2008, the applicant applied to this tribunal for review of the cancellation decision.
6. At a hearing on 2 April 2008 I gave an oral decision dismissing the application on the ground that it had been lodged out of time and was therefore invalid. The applicant appealed to the Federal Court against that decision and on 14 May 2008 Allsop J by consent remitted the matter to the tribunal in light of the Federal Court’s decision in Pomare v Minister for Immigration and Citizenship [2008] FCA 458, which turned on the invalidity of the notice of visa cancellation. At the hearing on 2 April, the applicant had not challenged the validity of the notice but had submitted that he had been under the mistaken impression that he had 28 days, rather than nine days, in which to apply to this tribunal.
7. At the hearing, the applicant appeared in person, while the respondent was represented by Mr Tigiilagi Eteuati. The documents before the tribunal comprised the documents produced pursuant to s 501G of the Act (“the G documents”), taken into evidence as Exhibit A1, together with the other documents tendered by the parties at the hearing. The applicant gave oral evidence in person, as did two supporting witnesses.
Issues
8. The issues in this case are:
(i)whether the applicant passes the character test in s 501(6)(a) of the Act, given his substantial criminal record as defined in s 501(7) of the Act; and if not,
(ii)whether the tribunal should exercise its discretion to set aside or affirm the decision made by the delegate of the minister to cancel the applicant’s visa, applying ministerial Direction No 21.
Relevant law and policy
9. Under s 501(2) of the Act, the Minister may cancel a visa if the holder does not satisfy the Minister that the person passes the character test (s 501(2)(a) and (b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant ground in the current matter is in paragraph (a),as follows:
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For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7);
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10. “Substantial criminal record “ is defined in s 501(7)
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(7)For the purposes of the character test, a person has a substantial criminal record if:
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(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more;
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11. Under s 499(1) of the Act, the Minister may give written directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. That includes this tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.
12. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
The applicant’s evidence
13. At the hearing the applicant adopted his written statements of 15 November 2007 (part Exhibit A2), 27 March 2008 (Exhibit A4) and 24 November 2008 (Exhibit A3) in which he said that he has four brothers and five sisters, all born and raised in New Zealand, and that he is the only child living in Australia. He had moved here with his ex-partner, Tanya O'Keefe, in order to help care for her epileptic sister. Tanya is the mother of his four children, aged between two years and five years.
14. He had found it difficult to raise his children. He said in his statement of 27 March that he maintains close contact with them, but in his statement of 24 November said he had contact with them now and then by telephone. He talks to all of them, and his daughter Tatiana tells him that she wants him to return home. He would miss his children if he were to leave Australia but blamed only himself for that because of the big mistakes he had made in life.
15. He had now made a change in his life to be a better man since obtaining help and had learned much about anger-related issues, drug and alcohol use and setting realistic goals.
16. During his incarceration he had reflected on his life, adding that he had experienced a difficult upbringing. On the first occasion when he was imprisoned, he did not take steps to improve himself, but on the second occasion, and after his transfer to Villawood Immigration Detention Centre he had realised the importance and meaning of life and that he needed to change. He had learned a valuable lesson regarding his problems and understood that he needed to change to become a better person for his family and the Australian community.
17. Referring to the psychiatrist’s report by Dr Andrew Ellis (Exhibit A5), he stated that he does have the support of friends and family who are more than willing to accommodate him and assist him in finding employment. He has certificates for completing courses in drug and alcohol use, anger management, general safety induction, hospitality and responsible service of alcohol, all of which bring his risk of recidivism to a low level.
18. After 10 months of working with him, the psychologist Alex Lutherborrough (report Exhibit A6) suggested that he was now ready to join the community.
19. He understood that he had let the Australian community and his family down and drew no satisfaction from that. If released into the community he would continue to pay taxes, obey the law and not re-offend.
20. He has four children and has never intentionally hurt them. They are not coping well because of the stress of his absence. He had always provided for his family through work and if he were removed from Australia his relationship with his children would cease because they would not return to New Zealand. He would thus miss most of their childhood and they would be deprived of having their father in their lives. The children would be greatly stressed if he were removed from Australia.
21. He believes that his prior behavioural patterns and negative attitudes towards society had ceased and that he has rehabilitated. Despite the significant response to his offending behaviour, resulting in possible deportation, his words of regret were true. He had productively used his time in prison to further his education and his prospect of employment.
22. He wanted to be a father and a positive role model for his siblings. He would attend family counselling and complete parenting skills courses upon his release. He believes that with professional support he would gain the knowledge and skills needed to build a strong relationship with his children and immediate family members. His children needed a father in their lives, they needed his perspective and wisdom, and he wished to share his knowledge with them and keep them on the right path, averting the path that he had walked for too long. Australia was now his home and if given the opportunity to stay he would not let himself, his family and Australian society down.
23. At the hearing Mr Eteuati on behalf of the minister asked the applicant about his convictions. His assault female and common assault convictions in New Zealand related to Tanya O'Keefe, he said, as did the assault, breach of domestic violence orders and assault occasioning actual bodily harm convictions in New South Wales and Queensland, except for the assault occasioning actual bodily harm against his daughter Tatiana.
24. He could not recall what the New Zealand conviction for possessing an offensive weapon was about.
25. One of the assaults occasioning actual bodily harm for which he was convicted on 16 February 2006 arose as a result of an argument with Tanya in which she had been punching him and had poked him in the eye. He had reacted and the police had come.
26. In relation to the convictions of 20 November 2006, he stated that he had been released from jail and had returned home. All had gone well for two weeks, but Tanya had repeatedly accused him of cheating and he did not know how to handle it. He would leave her, but she would telephone and ask him to return, but the same scenes kept repeating. He would deny cheating, she would cry, he would leave, she would call him back but the next day the same would happen. He had repeatedly used force and struck her out of frustration.
27. On one occasion Tanya had been speaking on his mobile phone. He took it from her and threw it at the wall. At that moment Tatiana had walked in and the telephone had broken against the wall, and a piece of it had struck her near the eye. He had taken her to hospital where she had received two stitches in the wound. He had not meant to touch Tatiana. On that occasion he had struck Tanya once; he then corrected himself and said that he had not struck her that time. But by that time he had had enough and left her.
28. At the hearing in relation to those assaults, he had been represented by a Queensland legal aid lawyer who had read the charges to him and asked him whether he wished to plead not guilty. He had said he did not, but said he wanted to plead guilty in order to dispose of the matters, although he had not understood the charges.
29. When called for sentence the judge had asked him if he had anything to say, and he said he did not. He then received a sentence of two years' imprisonment.
30. Neither Tatiana nor the other children had been injured on other occasions.
31. In relation to the Child Safety Service Centre letter of 11 May 2007 (G p39), he said that family services had telephoned him while he was in jail to discuss his undertaking an anger management course. He had applied to do so, but the course was not offered in the Maryborough facility without a court order. He had therefore not returned the call. The Suspected Child Abuse and Neglect (SCAN) team had written the letter because he had not called them back about the course.
32. Asked about his reported attempt to break into the local Women’s Domestic Violence Service centre (G p39), he said that Tanya had gone to the women’s refuge after the incident involving Tatiana for her safety and remained there until he was imprisoned in November; in other words for about three months. She had, however, telephoned him and asked him to visit her there. He could not see her at home because to do so would have violated his domestic violence order. The refuge staff had not objected to the visit. Tanya had, however, locked her keys in her room, so that he had to break the door in order to enter. He had attempted to repair the damage.
33. He thought the 2 February 2007 conviction for wilful damage was the result of a s 38 infringement while he was in jail. Under that provision he was supposed to remain in detention for seven days, after which time he was supposed to be visited and interviewed, but on one occasion when nobody came after seven days he had kicked out a window in order to attract attention. He thought the February 2007 conviction related to a similar incident. He then withdrew that statement and suggested that the conviction might have arisen because some earlier charges had not been dealt with. But he was not sure what it was about.
34. Both his parents still live in New Zealand. He also has five sisters and four brothers there. He grew up with all of them, first in Wellington and then in Auckland.
35. The only problem he would have in returning to New Zealand would be separation from his children. He has his own family here, and they now live on the Central Coast of New South Wales with their mother, Tanya. Tanya had intended to attend the hearing today [13 January 2009] but was unable to do so because the children were at school and there were difficulties about collecting them.
36. He had asked her a few times to give evidence in the application about six months ago. She had acquired a new partner 10 months ago but had now left him, having had another child with him. That partner had not wished him to contact the children, who are now aged two, three, four and five.
37. Until January 2008, when he was transferred to Villawood, he had not had any contact with the children since October 2006 because he had not had Tanya's telephone number. Since January 2008 he has spoken to them on the telephone about every two months.
38. He agreed that if he were removed to New Zealand he could maintain the same kind of contact, but countered that they needed their father in their life. He wanted more than just telephone contact and hoped to play a normal father’s role in their lives, taking them to sport, collecting them from school and the like.
39. Now that Tanya has left her partner, he thought that she would be more likely to allow contact with the children. When he has spoken to her on the telephone she still has doubts but can hear the change in him and he hopes to build up trust with her. At present there is no order prohibiting him from seeing the children, but Tanya has sole custody.
40. The report by Dr Ellis had been arranged by his former legal aid lawyer while he was at Villawood.
41. Asked about the passage on p8 of Exhibit A4 (para 3) in which Dr Ellis had expressed concerns about the lack of feasibility of the applicant’s plans, he said his present plans were to take Tanya to the Family Court in order to obtain an order for access to the children. He felt that would now be easier as relations with her were now good. The family had now left Tasmania and was living on the Central Coast. Although he had no guaranteed employment, he could get help in finding it and planned to work, save money and buy a house in Sydney to be near the children. He has friends in Queensland who want to help him, but he has told them he would prefer to do it on his own. He has an uncle in Sydney with whom he does not have a close relationship.
42. Nevertheless, he does have community support and he could not understand why Dr Ellis had written (p8) that he was at moderate to high risk of violent recidivism if released into the community without supports. He knew that he would not re-offend. His family were here to help him.
43. Mr Eteuati then asked him why the tribunal should conclude that he would not re-offend. In reply he referred to Mr Lutherborrough’s report, but conceded that while Mr Lutherborrough credited him with substantial growth in the last 10 months, he had not attempted to estimate the risk of recidivism. He added that he had not used drugs or alcohol since his arrest in November 2006.
Applicant’s supporting evidence
44. The applicant tendered a statement dated approximately 1 August 2007 by Joyce Ratahi, his mother (Exhibit A8), stating that he had been a very difficult child and had been classified as hyperactive.
45. Medical practitioners had wanted to put him on medication, but she refused to permit it because she had friends who had been medicated for hyperactivity as children, and by the time they reached adulthood they became addicted to heroin.
46. The applicant's father had been very abusive not only to her, but also to the two children she had at that time, the applicant and his elder brother. The applicant was difficult to handle and would not listen to admonitions. The only way she or his father knew to discipline him was to strike him around the head or elsewhere. The applicant was the main reason for the break-up [for a time] of her relationship to the applicant’s father because of his outrageous behaviour. She had then turned to drink and had become an alcoholic.
47. The applicant proved to be a good sportsman as he started growing up but frequently sustained injuries on the field. Because of his football aptitude, they moved to Auckland to attempt to better his sporting record but lacked the finances to pursue that avenue. Her relationship with him deteriorated and eventually he was sent to a boys’ home. He was found on examination at the age of 15 to have the intellectual development of a five to 10 year-old.
48. He subsequently became involved in a relationship with Tanya O'Keefe. All went well for a time, but then Tanya was called by her mother to Australia to help with her younger sister, who was handicapped. A couple of months later the applicant moved to Australia to join her. A year after he did so they had their first child, Tatiana, and subsequently three other children were born.
49. In the course of a visit she had seen the applicant with the children and was impressed with the way he cared for them. She considered it was “just a shame that he has put himself in the situation he is in at the moment”. For the sake of the applicant’s four children she hoped he would be allowed to continue living in Australia to be near them.
50. At the hearing Ms Ratahi said that she is currently living in New Zealand and had arrived in Australia only four days previously. She now had a very good relationship with the applicant, although she had been “a very cruel mother”, she now realised, in relation to all her children. It took her 18 years to come to that understanding, but now she works well with children and has been a kindergarten teacher.
51. She had given the applicant up when he was between 14 and 16. He had been hyperactive and the relevant department had wanted him to be medicated with Ritalin. She would not agree to it however, because she knew of others who had been medicated with Ritalin when young who had become heroin addicts in adulthood. Nevertheless, she would have agreed to the applicant being placed on Ritalin if she had realised the extent of his disability.
52. The applicant had been a very difficult child and she had been unable to deal with it. Relations with his father had been “up and down” and the applicant had always interfered, making her angry, so that she struck him.
53. She was now willing and able to care for his children. She had raised the second child, Daniqua, for two years between the ages of one and three. She had taken Daniqua back to New Zealand because Tanya could not cope with her. She was now able to cope, however.
54. Ms Ratahi said she had been in contact with the other children. Tanya had not wanted the applicant to know where they were, but had allowed her access to them.
55. If the applicant were returned to New Zealand, she would also return there to help him become established and find employment. She is still living with the applicant's father, and has six children in New Zealand. The applicant’s father has three other children of his own. In that event she was the one who would have to do the travelling to contact the children in Australia.
56. Ms Ratahi said she was aware of the applicant’s criminal record. He is not now barred from having contact with the children, and Tanya would permit it if he were released. She is currently in another relationship, but he is not at home at the moment.
57. As a father, she had expected the applicant to be abusive, given the way he had been raised, but she found him to be very good with the children. They remember him despite their long separation. She was proud of him.
58. Mr Siupeli Fifita, a friend of the applicant, in his statement of approximately 21 November 2008 (Exhibit A7), explained how he had met the applicant at Villawood. When Mr Fifita had first arrived at Villawood he was confused and had mixed emotions, but the applicant had helped him cope with his difficulties and with the paperwork that eventually saw him released from Villawood.
59. The applicant also supported him when he was feeling depressed and had told him about his life and children in Australia. The applicant is a person who is mentally strong and with a big heart and would often share stories of his family with Mr Fifita. He never received a visit from his partner or children, but had regular telephone contact with them.
60. His former de facto now has a new boyfriend, and that was made it difficult for her to visit him. They would also not attend court to support him.
61. Mr Fifita said he and his family are willing to accommodate the applicant for as long as necessary to enable him to get back on his feet. He would help him to find employment to enable him to support his children if they were willing to accept it. But would help to ensure stability on his release, and with their care they could guarantee that he would not re-offend. He asked that the applicant be given a second chance to be close to his children.
62. Despite his past, overall the applicant is a very caring, loving and supportive person who understands people’s feelings.
63. At the hearing Mr Fifita said that he is currently living at Birrong but had been in Villawood between March and May 2008. He telephones the applicant about once a week and has visited him in Villawood about four times. He said he was aware of the applicant’s criminal record and that he had quite a past, including some charges for assault and shoplifting.
64. When further questioned, however, it became apparent that he did not know the assaults related to domestic violence committed against his partner. He had known that a child had been injured when he had thrown a telephone in the course of an argument with Tanya.
65. The applicant had taken him under his wing at Villawood and they had developed a close relationship there. He had never known him on the outside, however.
66. If he were released into the community, Mr Fifita would accommodate the applicant at his home, where he lives with his sister, her husband and their three children. They know the applicant, but are apparently not aware of his criminal history. Asked whether that would affect their willingness to accommodate him in their home, Mr Fifita replied that they have confidence in the friends he chooses. When it was then pointed out to him that he himself had been unaware of the applicant’s domestic violence record, he replied that it was possible for the applicant to change.
67. Mr Fifita works for Goodman Fielder as a casual and believes he could put in a good word for the applicant with his supervisor. There were many opportunities at Goodman Fielder.
68. The applicant also tendered a reference from Ms Cassia Proebstel dated 14 November 2007 (Exhibit A9). He explained that Ms Proebstel had intended to give oral evidence but was unable to attend because of pregnancy complications.
69. In her letter Ms Proebstel said that she had only recently moved to Australia but felt it was appropriate to offer her help to the applicant as they had always been close when growing up. She felt sorry for him as she believed he was himself still growing up when he entered into his relationship with Tanya and began having children. Because he had moved to Australia, he had no support at all from his family.
70. She was willing to have the applicant reside with her and her partner, who had contacted others to help him to find employment. She would also support him in any type of counselling that he needed.
71. When she had visited the applicant for the first time at Villawood she had been amazed to see how mature he had become. He had been suffering, however, because he is missing out on his children’s lives. She is certain that if released he would do greater and better things with his life. The time he had spent away from his children had made him realise he had no option but to make his wrongdoings right.
Psychiatric evidence
72. A forensic psychiatrist, Dr Andrew Ellis, in his report dated 31 July 2008 (Exhibit A5) gave the applicant's history, noting that he began using alcohol, cigarettes and cannabis at the age of 14 or 15. Before incarceration he was drinking most days and consuming two bottles of spirits daily, experiencing blackouts in which he could not recall events during his drinking. He became more tolerant to alcohol over the years and experienced past cravings to drink.
73. He began smoking cannabis at the age of 14, and before incarceration was smoking eight or nine grams per week. His tolerance to cannabis increased and he became particularly distressed if it were not available to him. While using the drug he experienced some symptoms of paranoia.
74. He had used amphetamines from the age of 17, once every five or six months but denied persistent use of it. He had experimented with crystal methamphetamine and ecstasy, but denied ever using cocaine or heroin.
75. He had never entered into a substance use rehabilitation program or detoxification admission, nor had he attended any custodial courses regarding substance use.
76. In relation to his criminal history, he had said that his earliest charges in New Zealand related to his stealing a handbag from a woman when he was in financial difficulties and needed money.
77. In New South Wales he had become involved in a dispute with the local Aboriginal people who had threatened his relatives, and he had responded by punching them. He was unable to recall details of the offences.
78. In relation to the Queensland offences, he reported that in 2003 he was struggling with money and unable to find employment. He had committed the breaking and entering offences to pay for alcohol and drugs, but could not recall the series of offences relating to domestic violence orders and assault upon his then partner. He said some of the allegations were not true and that on occasion she would assault him. The assault on his daughter was the result of his having an argument with his partner and throwing a mobile telephone at a wall. Part of it broke off and hit his daughter. He had immediately taken her to hospital to receive treatment. The wound required two stitches.
79. In Dr Ellis’s opinion the applicant suffered from alcohol and cannabis dependence. His criminal record indicated repeated behaviour and he displayed poor understanding of the consequences of his actions. He would meet the criteria for anti-social personality disorder. Outside custody his functioning and relationships had been seriously impaired and his functioning in occupational duties had been marginal.
80. He had attended various courses while in custody and said he had been abstained from illicit substances.
81. Dr Ellis explained that some factors predicting recidivism are historical or largely unchangeable.
82. The applicant displayed some of those, including a definite history of previous violence that began at the age of 17, which is considered early in the literature. He has a history of unstable and conflicted relationships and has experienced problems in employment. He has a history of serious substance use disorders and of supervision failure while on criminal justice orders, including breaches of domestic violence orders. He also has a history of personality disorder, but no major mental illness or serious cognitive impairment.
83. Current clinical issues of concern are his lack of understanding into his offending behaviour and substance use disorders. He has an overly optimistic view of his ability to abstain from substances, secure employment and find relationship stability without professional assistance. There is some evidence that he expresses negative attitudes towards supervision and justice intervention, but not of the most serious kind.
84. He had not yet had the opportunity of treatment for his various substance use disorders and personality issues, so it was not clear whether he would be unresponsive to treatment.
85. Should he be released in to the community there would be some concerns that his plans lacked feasibility. There was no identified accommodation at that point and he had no employment secured. He would wish to go to Tasmania to be close to his children but had never lived there before and has no family support there. In the community his exposure to destabilisers such as substance use and substance-using peers would be increased, but that could be decreased by engagement in professional support programs.
86. He does not appear to have personal supports such as friends and relatives in the community. His ex-partner and children do not appear able to provide personal support for him. There is a moderate probability that he would be subject to stress when released to the community without having engaged in vocational training or substance use treatment.
87. Overall he would be considered a moderate to high risk of violent recidivism if released without supports. If he were to engage in substance use treatment and testing, anger management programs, social skills training and formal vocational training in an area in which he could probably secure employment, his risk of recidivism would be reduced. Employment in alcohol service would be inappropriate given his alcohol dependence disorder. If he were able to secure non-professional personal supports in the community and stable accommodation, the recidivism risk would also be reduced.
88. His risk of recidivism in the short to moderate term was moderate because of the number of historical factors in his case that tend to ameliorate only after more significant periods of stability.
89. The applicant also tendered a report dated 11 November 2008 by Mr Alex Lutherborrough, a psychologist with Professional Support Services at Villawood (Exhibit A6). Mr Lutherborrough said he had been working with the applicant for 10 months. During that time the applicant had shown a willingness to demonstrate that he wished to use his time in detention to learn and make changes in his life.
90. He had participated in an anger management course and had requested individual sessions on it. He had also attended individual counselling sessions on drug and alcohol abuse.
91. He had indicated that his prior drug and alcohol use was a way for dealing with interpersonal conflict, particularly with his partner. But the effects that it had had on his family and his time in jail as a result of his behaviour when affected by drugs and alcohol had served as a deterrent for him as regards the potential for future substance abuse. During counselling sessions he had talked about his desire to resume contact with his children and the personal difficulties he had experienced growing up with his own family in New Zealand. He acknowledged that it was his own mistakes that had led to his separation from his children.
92. The applicant also reported having been assessed and identified in New Zealand as having a learning difficulty, although the nature and extent of it were unclear. He did, however, appear to have some kind of learning impairment that meant that he processes information more slowly.
93. Nevertheless, he has been willing to learn and to improve his communication skills and has shown an increase in openness to engaging and talking with others.
94. After seeing him for the last 10 months Mr Lutherborrough thought he had shown substantial growth in attitude since coming into detention. That would indicate that he was far more equipped to deal with returning to the community and should be given an opportunity to do so. Mr Lutherborrough’s report did not express an opinion about the applicant’s risk of recidivism
95. Neither Dr Ellis nor Mr Lutherborrough gave oral evidence. There are no pre-sentence or pre-release reports before the tribunal.
Application of the Law and Findings of Fact
96. As was stated above, the first issue for me to decide is whether, pursuant to s 501(6)(a), the applicant passes the character test having regard to his substantial criminal record.
97. Secondly, I am required to have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If I decide that the applicant does not pass the character test, I must consider whether to exercise the discretion in s 501(2) to cancel the applicant’s visa. In so doing, I must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.
98. In this case the applicant does not pass the character test because of his “substantial criminal record” within s 501(7) because, quite apart from his other custodial sentences, he was sentenced on 20 November 2006 at Bundaberg, Queensland, to two years' imprisonment on each of five counts of assault occasioning actual bodily harm.
99. I must therefore consider whether to exercise my discretion under s 501(2) to decide whether or not to cancel the applicant’s visa. In exercising that discretion, the tribunal has regard to Part 2 of Direction No 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
…
Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
…
100. Paragraph 2.3 sets out the primary considerations:
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In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
…
Paragraph 2.4 explains:
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The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community.
…
101. Examples of what the government views as serious offences are set out in paragraph 2.6. This includes, in subparagraph (f), crimes of violence against persons. Paragraph 2.8 requires decision-makers, when exercising this discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.
102. With regard to paragraph 2.5(b), likelihood that the conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.11, general deterrence, “aims to deter other people from committing the same or a similar offence”.
Protection of the Australian Community
103. The first issue to be discussed under this heading is the seriousness and nature of the conduct. It is necessary to apply Direction No 21, which was made pursuant to s 499 of the Act. The direction, which is binding on this tribunal, states in paragraph 2.6(f) that crimes of violence against persons are to be treated as very serious. In this case, the applicant has been convicted of assault, assault causing actual bodily harm and assault police (on at least two occasions), on multiple counts, receiving custodial sentences of seven months' imprisonment and two years' imprisonment on separate occasions. Before that he was convicted and sentenced in New Zealand for assault female. He was also admonished and discharged on one count of robbery by assault apparently in respect of an incident involving stealing a woman’s handbag (Exhibit A5, p4).
104. At the hearing he indicated that all the assault-related offences involved Tanya and on one occasion Tatiana, but he told Dr Ellis that one of his New South Wales offences arose out of a dispute with some local Aboriginal people who had allegedly threatened his relatives and he had responded by punching them (Exhibit A5, p4).
105. Before sentencing the applicant on 20 November 2007, Magistrate Sarra had this to say:
… When I look at these matters they are six assault occasioning actual bodily harm between the 23rd of October 2006 and the 29th October 2006. There are two wilful damages on the 29th of October 2006 and there is a fail to appear on the 10th of November 2006.
When I look at the domestic violence breaches there were seven breaches of the Court’s order on the 23rd of October, 23rd of October, 28th of October, 29th of October, 10th of November, 19th of November and the 19th of November 2006. When you look at these Court orders, they are designed specifically to ensure that people can live peacefully and without fear of harm in the community.
These Domestic Violence orders are designed specifically to get people to look at their behaviour and relationship, particularly where there are problems, and try and address those problems without resorting to domestic violence. When one considers the fact that this woman has been in a relationship for some six years and has a number of children, three children, the oldest being three and I know also that the child was [scil?: “injured as”] a consequence of your violent outburst.
The fact that you have a history to show that you are no stranger to the Court and violence seems to be your first response in resolving issues, I note that the common assault and Domestic Violence matters were before the Court on [sic] July 2003. You were given the benefit of a Probation Order for 12 months.
Notwithstanding that the order was in place you breached that order and came back on the 1st of March 2004 where fines were imposed.
It would appear that, again, that the Probation Order was breached and you were dealt with on the 21st of February 2005. It comes as no surprise that when 2006 rolled around, the 16th of February 2006, you were sentenced to seven months' imprisonment for assault occasioning bodily harm and again, pigeon-paired with that is the breach of domestic violence.
It is clear to me that you have little or no regard to the orders of the Court and yet people who come here seek the assistance and they need the protection from the Court. You are a violent person who thinks that punching a person into submission is going to resolve issues that you fear may be present in your relationship.
Well, that is totally unacceptable. The community’s become enraged at the degree of violence and in order to try and break this domestic violence in the community it calls upon the Court to impose penalties that will reflect the abhorrence that the community members feel for this type of behaviour.
Now, you are a young man, 22 years of age, but you have done nothing to embrace the orders of this Court. If anything you have shown complete defiance and disregard. For that reason I look at these matters and am of the view that terms of imprisonment are warranted.
The fact that you were released from prison after serving seven months for an assault occasioning bodily harm, only to register a further eight charges of a similar behaviour suggest to me that the term of seven months was insufficient in order to get you to curb your violent behaviour (G pp 41-43).
…
106. The applicant has a long record of offences of violence, breaches of domestic violence orders, and other offences including burglary, breaking and entering, and drug offences. His record can only be viewed as very serious.
107. The tribunal is also to take into account any relevant matters provided by the applicant as mitigating factors (para 2.8(a)). They should be viewed in the context of the applicant’s entire record (Green v Minister for Immigration and Citizenship [2008] FCA 125 [25]-[26]). The applicant did not explicitly raise any factors in mitigation of his record, but did mention to the tribunal and to Dr Ellis (Exhibit A5, p4) that on some occasions Tanya would assault him, on one occasion poking him in the eye, provoking him to retaliate. While that maybe so, it must be borne in mind that the applicant is a very large and strongly built man and any pugilistic encounter between him and a woman (or most other men) is likely to be unequal and to end badly for the latter. That would negate the mitigating effect of any provocation.
108. The next issue for the tribunal to consider is the risk of recidivism. As President Mathews J said, “Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending” (Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56 at [51]).
109. The applicant has been convicted of numerous offences, mostly of violence, in New Zealand, New South Wales and Queensland. He has been given community supervision and restraining orders as well as probation and custodial sentences but has repeatedly re-offended. He has been dealt with for three breaches of parole, one breach of bail and at least 11 breaches of domestic violence orders.
110. Magistrate Sarra said that “you have little or no regard to the orders of the Court” and “If anything you have shown complete defiance and disregard” (G pp 42-43).
111. The applicant’s case is that he is a changed man now and he is sure that he will not re-offend. He points out that he has completed an anger management course, although I note that he previously completed such a course in New Zealand but went on to accumulate numerous convictions for offences of violence. He also points to Mr Lutherborrough’s conclusion that he has “shown substantial growth in attitude since coming into detention”, but acknowledges that the report makes no attempt to assess the risk of recidivism.
112. As part of his case he tendered Dr Ellis’s report, which was prepared at the behest of his former legal representative. Dr Ellis's conclusions are less than entirely supportive, however. After noting that the applicant suffers from alcohol and cannabis dependence and anti-social personality disorder, he points out that some factors predicting recidivism are historical or largely unchangeable and that the applicant displays some of those, including a definite history of previous violence commencing at an unusually early age. He has a history of serious substance use disorders and of supervision failure while on criminal justice orders, including breaches of domestic violence orders. His functioning in occupational activities has been marginal.
113. Dr Ellis was also concerned by his lack of understanding of his offending behaviour and substance use disorders and his overly optimistic view of his ability to abstain from substance abuse, obtain employment and find relationship stability without professional assistance. His plans appear to lack feasibility. Dr Ellis concluded that overall he would be considered a moderate to a high risk of violent recidivism should he be released to the community without supports.
114. The applicant disputes that conclusion. He points out that he has abstained from drug and alcohol abuse since his incarceration, but the strength of his resolution in that regard has not been put to the test outside the controlled environment of imprisonment or detention, and Dr Ellis thought there was a moderate probability that he would be subject to stress when released to the community.
115. Mr Fifita said he could arrange for accommodation with his sister and her family, but there was no confirmation of that from his sister or her partner. Mr Fifita himself was unaware of the applicant’s history of domestic violence and could only assume that knowledge of that record would not affect his sister’s claimed willingness to accommodate him in her home with her children.
116. Ms Proebstel in her letter (Exhibit A9) also expressed willingness to have the applicant reside with her and her partner, but there is no evidence from the partner and nothing to show that Ms Proebstel is aware of his criminal history, she having only recently arrived from New Zealand.
117. The applicant's mother would offer him her support but she lives in New Zealand and has no accommodation available in Australia. It is clear that Tanya O'Keefe would not be able or willing to offer him any support.
118. In the absence of a pre-release report, the most reasonable conclusion, based on all the evidence including Dr Ellis’s report, is that the risk of recidivism is somewhere in the moderate to high range. Given the recent progress observed by Mr Lutherborrough, I would venture to place it in the lower end of that range. I note however, the tribunal’s comments in Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN N129 at N132:
…
The seriousness of the crime is an important consideration. The more serious the offence the greater the affront there has been to the community and the greater the necessity there is to preclude recidivism … even if the risk of recidivism is not high, the risk will strongly support deportation when recidivism, if it does occur, may cause great harm.
…
119. Any further episodes of violence towards Tanya or another partner, with the concomitant risk of harm to any children, whether of physical injury or, as the Child Safety Service warned, emotional harm from the impact of witnessing domestic violence, could have serious effects.
120. Although the applicant has expressed remorse for his offences, Dr Ellis voiced concern over his lack of understanding into his offending behaviour. That appears to be paralleled by his claims to Dr Ellis that he could not recall details of the New Zealand offences, the assaults on Aboriginal people in New South Wales or even the series of offences related to domestic violence orders and assaults on Tanya O'Keefe. Rather inconsistently, he told Dr Ellis that some of the allegations were untrue or provoked (Exhibit A5, p4). At the hearing he said he could not recall the circumstances of his New Zealand conviction for having an offensive weapon, admitted striking Tanya on the occasion when Tatiana was injured but then withdrew that admission, and admitted in relation to the conviction of 2 February 2007 breaking a window to attract attention while in detention under a s 38 matter, but then withdrew that statement also.
121. His account of how Tatiana sustained her injuries amounted essentially to saying that she had been hurt by accident and not in the course of an assault upon her. That would amount to denying the conviction, although he pleaded guilty to that offence when legally represented, and offered no explanation to the court. Further, it is settled law that the tribunal normally may not impugn a conviction or sentence: Minister for Immigration and Multicultural Affairs v Ali (2000) 62 ALD 673 at para 44; Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 at para 40; Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354; Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441.
122. In relation to the protection of the Australian community, the tribunal is also required to consider the question of general deterrence, the likelihood that visa refusal would prevent or inhibit the commission of similar offences by other persons: Direction No 21 paragraph 2.11. The deterrent effect of a particular decision is impossible to prove in advance. The concept can perhaps also be expressed in positive form by saying that if bad behaviour is rewarded, there will be more of it. That is a principle well known to parents, teachers, managers and most other members of the community.
123. Its incorporation in Direction No 21 may be simply a reflection of the need for decision-makers to consider the long-term effects of their decisions, not merely the short-term results. While visa cancellation is not intended as a punishment, para 2.11 of the direction plainly contemplates that the prospect of it will operate to deter similar conduct in much the same way as the threat of punishment does.
124. As Callinan J observed in Al-Kateb v Godwin (2004) 219 CLR 562 at 659, “Deterrence may be an end in itself unrelated to a criminal sanction or a punishment. Deterrence can, for example, be an end of the law of tort”.
125. In this case general deterrence, while not a decisive or even substantial consideration, is a factor that should be taken into account.
Expectations of the Australian Community
126. With regard to the second primary consideration, the expectations of the Australian community, paragraph 2.12 of Direction No 21 states in part that:
…
Visa refusal … may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia.
…
127. It has long been accepted on all sides in Australia that migration must be conducted in a legally regulated manner. There are many reasons for that, including the obvious point, as made by the Swedish economist Johan Norberg, that a welfare state cannot have open borders (“In defence of global liberalism”, Policy, winter 2006, 43, 47). Historical and other reasons have also been advanced: Re Zhou and Minister for Immigration and Citizenship [2007] AATA 1766 at [90] to [99].
128. In Al-Kateb, Hayne J observed that in one of its earliest decisions (Robtelmes v Brenan (1906) 4 CLR 395), the High Court had held that it is an attribute of sovereignty that every nation state is entitled to decide what aliens shall or shall not become members of its community (219 CLR at page 632).
129. Callinan J added that entering aliens are taken to know and accept “as a term of admission” that restraint to the extent necessary to enable deportation to be imposed on them (at p658).
130. At the same time, there is an expectation in the community that migration law will be administered fairly and humanely (Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at [34]). A further limiting factor is that one should attribute to the community knowledge of the whole of the evidence before the tribunal (Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458, at para 7(m)).
131. In my view the community would expect that the visa of a person with such a serious and sustained criminal record for offences of domestic violence and other offences, is assessed at being moderate to high risk of re-offending and who shows only partial evidence of rehabilitation should be cancelled.
The Best Interests of the Child
132. The third primary consideration is the best interests of the child. The tribunal is guided on this question by the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In Wan at paragraph 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa and, second, “to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration”. I also note paragraph 2.16 of Direction No 21, which sets out considerations that the decision-maker must take into consideration when considering the best interests of a child including the duration of the relationship between the non-citizen and the child and the length of any separation and reasons for that separation (paragraph 2.16(b)).
133. The applicant has four children, Tatiana, aged five, Daniqua (four), Tarquin (three) and Deejay (two). They are living with their mother Tanya O'Keefe and her current de facto on the Central Coast.
134. The children were all born in Australia and it is presumed that they are Australian citizens, although there is no evidence on that point.
135. Currently the applicant has no access rights to the children, Tanya having sole custody, but he says there is currently no order barring him from seeing the children. If released into the community he would institute Family Court proceedings to obtain access rights.
136. He believes that Tanya would now agree to access, but the weight of that claim is impaired by his obvious unawareness that she is now in another de facto relationship.
137. There is no evidence of any kind from Tanya or her de facto, although this application has been on foot since 15 February 2008. He says that he asked her at least six months ago to give evidence in these proceedings and that she had agreed to do so, but was unable to attend because the children were at school and she had to collect them.
138. Assuming that all the children, including Tarquin and Deejay, are in school, there would have been nothing to prevent Tanya from giving telephone evidence, a possibility explicitly drawn to the attention of applicants by tribunal outreach staff and client service officers, or written evidence. Nor did the applicant raise the question at the directions hearing, and he was legally represented until shortly before that hearing. In any event, the designated hearing dates of 13 and 14 January 2009 fell in the midst of the school holidays.
139. There is no expert evidence before the tribunal about the present living conditions and welfare of the children, but Ms Ratahi has been with them recently. As their grandmother she could be expected to take an interest in their welfare but did not suggest in her evidence that the children were not cared for.
140. As regards the closeness of the relationship, it is likely that Tarquin, by reason of his age, has little awareness of the applicant and Deejay probably none. It is unlikely that Daniqua has a close relationship with him because she was raised in New Zealand by Ms Ratahi from the ages of one to three and is now only four. The evidence is that Tatiana does remember him and he says that she wants him to return home, but there is no further information about her. It should also be noted that she spent three months in a women’s refuge with her mother because of his violence.
141. It would therefore appear that the applicant does not have a close relationship with the children, but if he were released into the community there would be some prospect for his developing a stronger relationship with them in the future, assuming that access rights would be granted. Direction No 21 states, however, that the hypothetical prospect for developing a stronger relationship in the future is normally to be given relatively less weight than the proven history of the relationship based on past conduct (para 2.16(b)).
142. While there is no doubt about the sincerity of his desire for more contact with the children, the feasibility of access and his aspirations to be a normal father is therefore conjectural in the present circumstances.
143. Of more concern is the Department of Child Safety report dated 11 May 2007 (G p39). After a paragraph dealing with background, the report continues as follows:
…
Department of Child Safety has recently completed the investigation and assessment of two (2) child protection notifications, dated 14 September 2005 and 29 October 2006, with allegations of physical and emotional harm as a result of domestic violence between parents. The outcomes are substantiated physical abuse of Tatiana who received injuries to her face during the most recent incident and substantial risk of physical and emotional harm to all four children due to the impact of witnessing the domestic violence and the vulnerability of their ages.
The assessment is that the children are not in need of protection and they are safe as Tanya is willing and able to protect them while Rangi is incarcerated. Members of the SCAN (Suspected Child Abuse and Neglect) support the assessment that the children are not safe if Rangi is released. He has previously been incarcerated for breach of a Domestic Violence Order and then re-offended, harming both Tanya and Tatiana and attempting to break into the local Women’s Domestic Service. Tanya is not able to protect the children and herself in her current accommodation should Rangi be released. Department of Child Safety prefers to maintain families as a unit and is seeking alternative options removal of the children to ensure their safety.
Members of SCAN Team support the option of Rangi Pauu being considered for s501 cancellation.
144. That is a strongly worded report and it specifically supports the option of visa cancellation under s 501. Implausibly the applicant sought to explain that report by saying that it was written because he failed to return a SCAN telephone call enquiring about progress of his plans to undertake an anger management course.
145. The report is much more specific than that, however, stating that it arose out of two child protection notifications and involved an investigation and assessment that apparently took some time to complete. It resulted in findings of a substantiated risk of physical and emotional harm to all four children and the conclusion that the children are not safe if the applicant is released. The reference to his “attempting to break into the local Women’s Domestic Violence Service” is not adequately explained by the applicant saying that he was invited into the centre, where staff had no objection to his presence, and that he had caused, and attempted to rectify, some damage inevitably caused because Tanya had locked her keys in her room. In my view that report, together with the other evidence, constitutes evidence under s 2.15 of Direction No 21 that displaces the usual presumption that a child’s best interests are served if the child remains with its parents.
146. To conclude, despite that evidence, that the children’s interests would favour his remaining in Australia, would require evidence that he is fully rehabilitated and that he no longer presents a risk of inflicting intentional or unintentional physical or emotional harm on the children. For the reasons given above, that conclusion cannot be reached. In my view the best interests of the four children, considered individually, therefore do not significantly weigh against visa cancellation in this case.
Other considerations
147. With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, “it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations”. These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; and any evidence of rehabilitation and any recent good conduct.
148. The applicant has not previously been warned about the possibility of visa cancellation.
149. He has no business or similar links to the Australian community that would be disrupted if his visa were cancelled. He is unmarried and is not in a close relationship with any Australian citizen or permanent resident.
150. The applicant’s parents both live in New Zealand and are still together. All of his nine siblings also live there. He grew up with them all and could expect to have their support in re-establishing himself in New Zealand.
151. He spent his formative years in New Zealand and states that he would not experience any difficulty in re-establishing himself there, other than the disappointment at being separated from his children, at least until they are old enough to visit him on their own if they wish.
152. There is some evidence of rehabilitation. He had completed a drugs and alcohol course and an anger management program, although he previously completed such a program in New Zealand, apparently to no effect. Mr Lutherborrough considers that he has made considerable personal progress in the last 10 months. He says he has abstained from drugs and alcohol since his incarceration, but his ability to maintain that state in the wider community when exposed to the normal stresses and disappointments of life has not been put to the test. He has completed a welding course but has few other vocational skills and his employment record is mediocre. His rehabilitation cannot be regarded as complete.
153. I conclude that the primary considerations of community protection and expectations outweigh the best interests of the children and the other considerations in this case.
154. The decision under review is affirmed.
I certify that the 154 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: …………………[sgd]…………………………………..
Renee Wallace, Associate
Date/s of Hearing: 13 January 2009
Date of Decision: 17 February 2009
Solicitor for the Applicant: Self-represented
Solicitor for the Respondent: Mr T Eteuati, Clayton Utz
Key Legal Topics
Areas of Law
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Immigration & Refugee Law
Legal Concepts
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Character Test
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Visa Cancellation
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Judicial Review
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Statutory Interpretation
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