Puafisi and Minister for Immigration and Citizenship
[2007] AATA 1823
•3 October 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1823
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/3293
GENERAL ADMINISTRATIVE DIVISION )
Re Tapukesolova PUAFISI
Applicant
AndMinister for Immigration and Citizenship
Respondent
DECISION
TribunalProfessor GD Walker, Deputy President
Date3 October 2007
PlaceSydney
DecisionThe decision under review is affirmed.
.................[sgd].............................
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION – applicant’s visa cancelled – failure to pass character test – exercise of discretion – applicant has extensive criminal record – no substantial evidence of rehabilitation – best interests of the children considered – community protection and expectations outweigh the best interests of the children in this case – decision under review affirmed.
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RELEVANT ACT/S:
Migration Act 1958 (Cth): ss 499, 500(6B), 501, 501G(1)
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CITATIONS
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Re Msumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192
Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780, 781
Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313
Minister for Immigration and Ethnic Affairs v Gungor (1982) 42 ALR 209
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Minister for Immigration and Multicultural Affairs v Serevi [2000] FCA 1691
Al-Kateb v Godwin (2004) 219 CLR 562
Robtelmes v Brenan (1906) 4 CLR 395
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608
Re Barattini and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 157
Re Dumbrell and Department of Immigration and Multicultural Affairs [2000] AATA 443
Re Zhang and Minister for Immigration and Citizenship [2007] AATA 1617
Re Chor and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 766
Re Qui and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 828
Re Ruano and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1240
Re Hadchiti and Minister for Immigration and Multicultural Affairs [2002] AATA 65
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OTHER REFERENCES
Direction No 21
Heather Young Leslie: The Contemporary Pacific, Volume 19, No 1, Spring 2007
I.A. Shearer, Starke’s International Law, 11th edn. Sydney 1994
I Brownlie, Principles of International Law, 5th edn. Oxford 1998
International Covenant on Civil and Political Rights
REASONS FOR DECISION
3 October 2007
Professor GD Walker, Deputy President
Summary
1. The applicant was born in Tonga in 1954 and came to Australia in 1985, obtaining permanent residence in 1994. Between 1990 and 2007 he accumulated a substantial criminal record, including a conviction for aggravated sexual assault, for which he was sentenced to 12 months' imprisonment.
2. On 13 July 2007, a delegate of the respondent decided to cancel the applicant’s visa on the ground that he did not satisfy the character test set out in s 501 of the Migration Act 1958 (Cth) (the Act). The applicant sought review of that decision on 18 July 2007 by application to this tribunal.
3. At the hearing, the applicant was represented by Mr Leonard Karp of counsel, instructed by Mr Greg Miller, solicitor of Holt & Allen, and Ms Theresa Quinn, solicitor of DLA Phillips Fox, represented the respondent. 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 and a Tongan interpreter translated for him. Oral evidence was also given by Theresa Taufa, Lelaine Puafisi, Merle Byrne, Robert Hansberry and Dr Leonard Lee.
Issue
4. As the applicant conceded that he did not pass the character test in s 501(6)(a) of the Act because of his substantial criminal record as defined in s 501(7) of the Act, the only issue for decision is 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 (or “the Direction”).
Relevant Law and Policy
5. 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 grounds in the current matter are paragraphs (a) and (c), 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); or
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(c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct;
(ii) the person’s past and present general conduct;
the person is not of good character; …
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6. “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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7. 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.
8. 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.
Basic facts
9. The applicant Mr Tapukesolova Puafisi was born on 25 November 1954 in Tonga and is a citizen of that country. He travelled to Australia on 24 January 1985 on a short-term visitor visa. He was granted a permanent resident visa on 10 March 1994 on the basis of his relationship with Ms Mabel Henry, an Australian citizen with whom he has two daughters. The relationship with Ms Henry ended in 2003. He has never left Australia since arriving in 1985.
10. Between 1990 and 2007, the applicant accumulated a substantial criminal history that includes numerous convictions for assault occasioning actual bodily harm, common assault and breach of domestic violence orders. On 16 May 2003 he was convicted of aggravated indecent assault against a person under his authority and was sentenced to imprisonment for 12 months with a non-parole period of eight months.
11. Following that conviction, the respondent considered whether to cancel his permanent resident BF-812 visa on the grounds of his criminal history. It was decided not to cancel the visa, but on 15 February 2005 he was issued with a warning by the department that any further offences would result in renewed consideration of visa cancellation. He acknowledged receipt of that warning in writing on 17 February 2005 (Exhibit A1 p81, Exhibit R3 ).
12. On 22 July 2005, however, the applicant was sentenced at Newtown Local Court to eight months' imprisonment with a non-parole period of six months for using or threatening to use an offensive weapon with intent to commit an indictable offence. He was also sentenced to concurrent terms of six months for assault occasioning actual bodily harm, common assault and malicious damage. Those sentences were confirmed on appeal by the Sydney District Court at Newtown on 22 August 2005. In 2007 he was convicted of goods in custody.
13. The applicant was then informed that the department intended to consider cancellation of his visa under s 501(2) of the Act and on 13 July 2007 a decision of a delegate of the respondent to cancel the applicant’s permanent visa was delivered to him. He applied to this tribunal for review of that decision on 18 July 2007.
The applicant’s evidence
14. In an undated written statement (Exhibit A2), the applicant related that after arriving in Australia in January 1984 (the applicant actually arrived in 1985) he lived at Claymore, and later Five Dock, New South Wales, while working in an electricity cables factory at Minto and at a trolley making factory at Greenacre.
15. In 1987 he moved to Queensland, where he met Ms Mabel Henry and began living with her in a housing commission home occupied by her sister in early 1988. Ms Henry was a heavy drinker and after he began cohabiting with her his own alcohol consumption increased markedly.
16. In about 1990, they moved back to Sydney to be closer to his father, initially living with his brother and his wife at South Strathfield. After a time he and Ms Henry moved into a housing commission home in Marrickville, where he remained until he separated from her in about early 1992. Subsequently, he returned to live with Ms Henry in Dulwich Hill for a time leading up to his arrest for the 1995 offences. After completing his sentence of imprisonment for those offences, he returned to live with his niece Theresa Taufa and her family at Peakhurst.
17. While living at Dulwich Hill after their daughters Lelaine and Tallara were born, he worked as a labourer at Visy Recycling at Taren Point and subsequently with Andrews Meats at Dulwich Hill.
18. Lelaine was born on 23 March 1991. At that time Ms Henry had five children aged from six to 14 from five former relationships. During the time he lived with Ms Henry, her daughter Roxanne lived with her full-time, while her other children also lived with them from time to time. At other times they were living with Ms Henry’s mother in Brisbane.
19. When Ms Henry was drinking she became aggressive and abusive towards him and on a number of occasions called the police during one of their arguments, he said. “On some occasions Mabel was injured whilst I was trying to defend myself from her advances. On a number of occasions I lost my temper with her and I regret the harm that I caused her” (Exhibit A2 p2).
20. Eventually, in early 1992, he moved out and went to stay with his brother and his wife, and their children. He took Lelaine with him, believing that she would be better looked after in that home environment than with Mabel. While he was staying with his brother and sister-in-law, he substantially reduced his alcohol intake and drank only at weekends.
21. He continued to visit Mabel at weekends, however, and their second child Tallara was born on 19 February 1995. Mabel was finding it easier to cope with Tallara’s birth and care, as she was greatly assisted by her mother.
22. Mabel’s mother did not look kindly on the applicant’s relationship with Tallara and would make it difficult for him to see Tallara or speak to her on the telephone. The applicant believes that if it were not for Mabel’s mother, Tallara would be living with him.
23. In early 1995, the applicant and Lelaine moved in with the applicant’s niece Theresa and her husband at Greenacre. During the times he was unemployed, he took care of Lelaine and subsequently of Theresa’s children when she was working. When he was himself employed, he looked after Lelaine when he returned from work, as well as Theresa’s children, and would prepare dinner for the whole family.
24. He believes that although he has not been a good example, he has tried to teach his daughters the difference between right and wrong and to discipline them when they needed it. He considers Lelaine to be fragile and introspective and believes he knows when to encourage her to talk and express her feelings. Lelaine has not seen her mother since they commenced living with his brother and his wife.
25. He has contributed to the support of the two girls, whether he was employed or on Centrelink payments. He paid for all their school activities, including camping trips and other excursions.
26. The applicant believes that as the girls do not speak Tongan, if they were to reside there, they would not have opportunities comparable to those available to them in Australia and would receive only a poor education leading to limited prospects of employment. Lelaine wishes to undertake tertiary study, but the education in her chosen field and a career path in it would not be available to her in Tonga.
27. If his visa were restored he would wish that Tallara could live with him full-time with his present de facto, Ms Merle Byrne, or alternatively with Theresa and her family, so that he could have constant contact with her.
28. To the best of his recollection, all the offences on his criminal record were committed while he was under the influence of alcohol. He had also been influenced by the company he had kept before meeting Merle, particularly Mabel and her circle. He is determined not to allow himself to drift into that milieu again.
29. At the hearing, the applicant said that he had been educated up to Year 8 in Tonga and had learned to write English there. He was married in Tonga and has three children aged 31, 30 and 27 respectively, who still live there. He had been divorced informally in accordance with local law as a result of separating from his wife.
30. He had come to Australia to work to raise money to educate his children and had been sending money home until early 2007, when he had remitted funds to pay for his youngest child’s fees at the University of the South Pacific in Fiji.
31. Before meeting Mabel Henry, he had experienced no trouble with the criminal law and had been only a moderate drinker. But while he associated with her, he began to drink much more heavily and continued to do so after being subject to criminal charges because he was concerned about what would happen to his two children if he moved away from her. He could not remember committing any offences when not under the influence of alcohol.
32. He had originally intended to return to Tonga, but changed his mind after hearing that his wife had remarried. He then proceeded to seek Australian permanent residency.
33. His children still live in Tonga and he sometimes talks to them on the telephone. If he returned to live in Tonga, he would expect to have a relationship with them, as “They must know me” (ts p13). He also has a sister living in Tonga but she travels to the United States from time to time as she has a daughter living there. Most of his siblings are in Australia and New Zealand.
34. His two Australian daughters Lelaine and Tallara have been to Tonga many times with his niece Theresa for holidays and to visit relatives, mainly relatives of his brother’s wife.
35. He had originally moved to Queensland because he had an aunt living there. He met Ms Henry four or five months later and soon afterwards moved in with her. He lived in Brisbane for about three and a half years in all. He stayed with Mabel until after Lelaine was born but first moved out in early 1992 to live with his brother and his family. He still spent weekends with her from time to time and sometimes gave her money, but the relationship ended in 2003 and he did not intend to resume it. The last time he saw her was when she visited him in Villawood.
36. He had ceased cohabiting with Mabel full-time after Lelaine was born, and Lelaine had been living with Theresa since she was a baby. He had not asked for Tallara to join them, but Mabel had written to him to say that if anything happened to her, she would ask him to take care of Tallara.
37. The applicant was then asked about some of his convictions. The 1994 charge of common assault occurred, he said, when he and Mabel Henry were intoxicated. When they were leaving the premises where they had been drinking, Ms Henry said she wanted to go on to another club. He refused, and she scratched his face, whereupon he pushed her away (ts p26). He could not recall any other assaults against Mabel Henry (ts pp31-32), although he denied that he lost his memory when he was drinking (ts p33). His only explanation for his multiple convictions for assaulting her was that the charges against him were adjourned many times, and he decided to plead guilty in order to dispose of them.
38. He admitted the assault occasioning actual bodily harm against Mabel Henry’s son Justin (then aged 14) for which he was convicted on 14 April 1994. He said it arose when Justin went to Kings Cross one Saturday night with his mother and punched her (ts p29). He denied the malicious damage charge for which he was convicted on 1 August 1996, saying that Mabel Henry’s youngest son had thrown stones and broken some windows in her house (ts p30). The police fact sheet (Exhibit R2, pp7-8) notes that the applicant was interviewed at Marrickville police station by way of note book entry as he refused to participate in an electronically recorded interview. He admitted to police that he had smashed the victim’s window, but said it was accidental.
39. The applicant said he could not recall the assault occasioning actual bodily harm for which he was convicted at Central Local Court on 11 February 1998. The fact sheet notes that at the police station the applicant declined to be formally interviewed (Exhibit R2, pp29-30).
40. On 16 May 2003 he was sentenced to 12 months' imprisonment with an eight-month non-parole period for aggravated indecent assault against a person under his authority. The victim was Mabel Henry's 17 year-old daughter Roxanne. The applicant said that on the evening in question, he had gone upstairs with Mabel and had not seen Roxanne until he awoke, when she called the police. He had pleaded guilty because he wanted to get his freedom and be more independent. The case was adjourned many times and he thought that if he pleaded guilty he would be released (ts p35). He still denied the offence. He was legally represented during those proceedings (ts p35).
41. After being released from prison in 2004, he was charged and convicted for failing to quit licensed premises when required by an employee of those premises, and of maliciously destroying or damaging property, a rear warning light on a police vehicle. He told Ms Quinn that he had broken some glasses but was not told to leave the premises until the police had already arrived. Nor had he harassed a female patron (Exhibit R2, pp191-192, ts p36). Witnesses who stated the contrary were lying (ts p37).
42. The assault occasioning actual bodily harm against Vicki Chand for which he was sentenced to six months' imprisonment by Newtown Local Court on 22 July 2005 was also untrue. He recalled the incident, and said that he had not thrown Vicki Chand as alleged but had lifted her up. They had been drinking and he did not like her going through, or into, the room occupied by his daughter. The victim had then had a fit. He had not pushed her in the kitchen.
43. After his arrest he was taken to Newtown police station. The fact sheet continues: “Police then asked the accused if he wished to participate in an electronically recorded interview where he could give his side of the story as to what had occurred and he refused” (Exhibit R2 p164).
44. On 22 August 2005 he was convicted at Sydney District Court and sentenced to eight months' imprisonment with a five month non-parole period for common assault and for using an offensive weapon with intent to commit an indictable offence (Exhibit R2, pp206-209). He denied those offences also, saying that he and the victim, Saupea Fepuleai had “agreed to fight”. He had a stone and they were chasing around. They wanted to fight and the victim had actually started the fight. He had pleaded guilty because the latter had been adjourned many times. As he was charged on 24 June 2005, the total time of any adjournments was less than two months. The applicant had been represented by Legal Aid in those proceedings.
45. Asked if he was guilty of any of the offences to which he had pleaded guilty, he replied that he might have been in some cases where a statement had been taken from him. He did not say which ones he was referring to. When it was put to him that his position was that he either could not recall the offences or the events had taken place differently from the manner alleged, he replied that was what he believed and that perhaps sometimes his English was not good enough to enable him to explain his position. He had not told the police his version of the incident with Roxanne because of a lack of communication, nor had he told his lawyers. Then he said he did tell them, but not about what he claimed was a lesbian relationship between Roxanne and her mother.
46. There appears to be a gap of about 20 or 30 minutes in the transcript at about line 13 on p37. The cross-examination summarised in paras 42-45 is missing.
47. The goods in custody offence committed on 25 February 2007 (Exhibit R2, pp109-115) related to four bottles of red wine, two sport heart monitors, two sports watches, one key ring containing house keys, one black Marie Claire bag and a stolen Chinese passport. The applicant said that on the occasion in question he had been drinking since the night before with a friend at Waterloo and when he was walking home, a group of Aborigines in a park told him to take the bottles of red wine. He had refused because they were intoxicated, but they put the bottles in the bag and said to take it. He intended to take the bag home (ts pp38-39).
48. His bail for that offence was subject to a condition that he not enter the Redfern or Waterloo area in any circumstances (Exhibit R2 pp117-118). The bail undertaking was given on 25 February 2007 at 2 pm and at 3:50 pm the same day he was arrested at Redfern for breach of the bail condition. The applicant denied that he had violated the condition. He said he had asked the police to drive him home, but they had no vehicle available. They had told him it would be permissible for him to go straight to Redfern station and he had in fact been detained at the station. He had not been with Mabel Henry at the time of the goods in custody offence or the breach of the bail undertaking.
49. When it was put to him that he had acknowledged in writing receiving and understanding the department’s warning of 15 February 2005 that any further offences would result in renewed consideration of cancelling his visa (Exhibit R3), he said the department had sent him a form but he had not read it all. He had given it to Theresa to explain but she must have forgotten about it when she went to hospital (ts pp44, 46). He did not recall having been warned. In re-examination he was invited to read the department’s letter and began to read it aloud until his counsel interrupted him and asked him what it meant (ts pp47-48). He replied that he did not really understand it. It had not been read to him in Tongan. When he had legal representation for the charges leading to his convictions, he had not had an interpreter and had not understood much but had thought he would plead guilty so as to be finished with the matters.
Supporting witnesses
Other evidence for the applicant
50. Mrs Theresa Taufa, the applicant’s niece, was born on 20 July 1974 in Tonga and arrived in Australia in 1983. She is an Australian citizen and has a large extended family here.
51. In her statement (Exhibit A3), Mrs Taufa stated that the applicant had returned to Sydney from Brisbane where he had been living with Mabel Henry in an aboriginal settlement (Inala), after Lelaine was born. He ceased living with Mabel in about mid-1991, although she, too, had moved to Sydney. A few months after Lelaine's birth, he came to live with Mrs Taufa’s parents and siblings at the family home at Strathfield. He brought Lelaine with him, and as far as she knows, Lelaine has not seen her mother since.
52. Even after he stopped living with Mabel Henry, the applicant continued to see her every weekend. Most times he went to her home on Friday evenings and remained until Sunday evening. When Tallara was born he continued to visit her on weekends. When Mrs Taufa married, she moved out of the Strathfield property to her current residence with her husband, the applicant and Lelaine. They continued to live with them until the applicant moved in with Merle Byrne in April 2007. Lelaine is still with them.
53. Lelaine is now 16, and Tallara 12. The girls have lived separately for most of their lives, but seemed to be very close when they do get together.
54. When the applicant is with her and her family, he only takes a drink with the family on special occasions and otherwise does not drink in the house, although he does drink elsewhere.
55. Mrs Taufa believes Lelaine is very close to her father, who spent a great deal of time taking care of her when he was not working. When he began to live with Merle Byrne he would call in after work each day to see Lelaine and Tallara, who has been living with the family every weekend since December 2006. When the last school holidays began, however, Mabel took Tallara to her grandmother’s in Brisbane, where she has remained to date. Mabel has told her that she is undertaking home schooling.
56. Mrs Taufa has tried to persuade Mabel to send Tallara to Sydney but without success. At times Mabel has had her children from her other relationships staying with her. She has seven or eight children, some of whom live with their fathers and some with her mother, and from time to time, some live with her. Mabel’s daughter Roxanne has a baby and currently lives with Mabel, and also spends time at her grandmother’s home in Brisbane.
57. Before Tallara moved to Brisbane, she had to learn to take care of herself because her mother was often incapable of doing so. She has a very close relationship with her father.
58. The applicant has two brothers here, as well as nephews and nieces. His return to Tonga would be a loss to his family, and they would need to continue looking after him in Tonga and also take care of his daughters at the same time. When he was on Centrelink benefits, he assisted her financially to take care of Lelaine by paying the family’s shopping bill once a fortnight and giving her $20 per fortnight for other bills. When he was working he gave her an additional $150 per fortnight for other bills and gave Lelaine $100 per fortnight for her entertainment, clothing and personal affects.
59. Mrs Taufa has three children of her own, with a fourth expected, and says she cannot assume the responsibility of the applicant’s children on a full-time basis. Her husband’s income and the Centrelink benefits for the children support them all but the total amount is just enough to support her family.
60. She is aware of the applicant’s criminal record, including his conviction for indecent assault of Mabel’s daughter Roxanne. Nevertheless, she has no concerns that her children are in any danger from him and would have no misgivings about having him live with the family if it were necessary. She does not think he is a bad man and believes all his problems with the law stem from his relationship with Mabel and his drinking with her. Now that they have broken up, she believes his problems with the law will be behind him. She has only seen him drunk once and that was about two years ago. Then he only seemed to be more talkative and louder. She was surprised about his convictions, because she thought that alcohol only made him louder, but that he was otherwise as usual. He had discussed some of his charges with her, but generally kept such matters to himself. He had said he did not commit a number of them. She was surprised that he had nevertheless pleaded guilty, and told him so.
61. She is close to Lelaine, who to an extent is like a daughter of her own. She took both of the girls to Tonga with her four weeks ago for her son’s first Holy Communion. They had remained there four days, and her parents had contributed to the cost. She would have no choice but to take both girls in if she had to, but financially it would be a struggle.
62. Lelaine Puafisi is in Year 11 at Beverly Hills Girl’s High School, where she proposes to complete the Higher School Certificate. She would like to go to university, possibly to study something to do with computers.
63. She has not often lived with Tallara, but is very close to her. She has lived with her father as much as possible, mainly with Theresa's family. She speaks English with her father, but sometimes with some Tongan words. She stays with Theresa when her parents are together and when her father is in jail. She does not get on well with her mother but has a very close relationship with her father, more so than with any other person. She is upset and misses him when he is in jail. She believes he goes to prison because of his drinking and wishes that he would stop. She tells him so and he stops for a while, but then he returns to her mother and starts again.
64. When he is in jail she “cannot think straight” (Exhibit A4 p2). She looks up to him because he puts her needs and those of her sister Tallara ahead of everything else and she knows she can rely on him. If he returns to Tonga she thinks she would be unable to cope and that her studies would be affected. She would refuse to move in with her mother because of her drinking problems.
65. At the hearing she said she had visited Tonga four or five times but does not speak much Tongan and does not use that language when she is there. She does not think she could live there because of the living conditions. The houses are not in good condition and hygiene standards are unsatisfactory. She was not impressed by the school there, which was not clean and did not have many computers.
66. If her father were removed to Tonga, she would remain in Australia with Theresa and visit him in Tonga.
67. Mrs Merle Byrne is a widow aged 64 who lives at Riverwood. She first met the applicant in November 2006 at the Riverwood sports club. They began talking and she could see that he was a very quiet man. She formed the view that he was somewhat naïve and easily led, so she gave him some advice about who he could trust. Her impression was that he was gentle and kind. He did not drink very much on that occasion.
68. They agreed to meet again the following evening at the hotel at Riverwood. After he left the premises that Friday night, he telephoned her to say that he was in the cells at Redfern police station, having apparently been given four bottles of stolen wine in a bag by some drunks in a park. She does not believe he would have taken those goods deliberately. She attended court with him, the first time she had ever been in a court, and then learned about his criminal record.
69. They returned to court again in about May for the same offence. The case took so long because he had trouble finding a lawyer. He pleaded guilty, was fined and released. They then went home to her house. They had lived together part-time before that, but he moved into her home in May. They were together for several months before he was taken to Villawood. If released he would return to live with her and they would be married. “I assure you that he will be kept busy and out of trouble” (Exhibit A5). She would not tolerate drunkenness.
70. During the time they were together he told her many things about his life with Mabel. He seemed to have a great deal “bottled up” inside him. He told Mrs Byrne about Mabel’s drinking bouts and the fact that he would join her and they would become inebriated together. That is when he would get into trouble. He also told her about his convictions and many other things.
71. While he was with her he worked very hard at the foundry. He rode a bicycle to and from work about two miles away. He worked as much overtime as possible in order to help his children. He has changed his life since he has been with her. He would come home, eat dinner, drink a beer (he would stop at one), watch television and go to bed. They would go to the club or a hotel perhaps once a week. He also attended Alcoholics Anonymous meetings every Tuesday and visited the parole officer at Hurstville about once a month. He had no trouble with the police.
72. Mrs Byrne says that if he were removed to Tonga permanently she would be devastated. She wants to marry him and stay with him for the rest of her life. She cannot leave her house, and has never been out of Australia. She also suffers from angina and is unsure of the medical facilities in Tonga.
73. At the hearing she reiterated that they had met in November 2006. He had been drunk at the time of the February 2007 arrest, but at that stage they were not living together, although they spent weekends together before that.
74. Mr Robert Hansberry is managing director of ABC Castings at Riverwood. The applicant began working with his company as a casual labourer on 18 January 2007 as part of a three-man team that operates a major production centre in the foundry. He proved himself to be a reliable, conscientious and disciplined employee who accepted instruction from his leading hand without hesitation. Mr Hansberry had no hesitation in making his position permanent after his three-month trial period.
75. At the hearing Mr Hansberry said that the applicant was in the “knock out” section of the automatic moulding line and that his task was to break the finished castings out of their sand and clay moulds.
76. Mr Hansberry finds him to be a quiet man who keeps largely to himself and is well liked by all the staff. He has caused no trouble or displayed any aggression. There have been no problems at all with his behaviour and no suggestion that he has been anything but sober at work. He would welcome the applicant back into his employ if he is permitted to remain in Australia (Exhibit A8).
77. Mr Hansberry was only very vaguely aware of the applicant’s criminal history. He would speak to him about two or three times a day at work and never had any language problems in communicating with him.
Psychiatric evidence
78. The applicant tendered a report dated 27 August 2007 by Dr Leonard Lee, a consultant psychiatrist (Exhibit A7). Dr Lee performed a psychiatric assessment of Lelaine Puafisi, relying on information provided by her and by an aunt, Anna. He had no other documents.
79. Lelaine related her life experience with her parents. After her parents had broken up about two years ago, Lelaine chose to remain with her father, rather than go with her mother, who now lives in Brisbane. She told him that after her parents separated, her father’s drinking calmed down. He has a new girlfriend who has been good in terms of “modulating” his drinking.
80. She told him that some years previously, her father used to be imprisoned for months at a time, probably because of fighting related to his excessive drinking. At those times she would feel depressed and worried. She herself has never seen him aggressive or unpleasant, however, and has always felt that he loves her, and she loves him.
81. She said she is worried about his future and had difficulty sleeping. She has lost weight and has difficulty in concentrating on her studies.
82. She told Dr Lee that she also feels close to her cousin Theresa, with whom she is currently living, but would prefer to live with her father. If he were deported, she would feel extremely depressed and sad. She did not think she would get over it.
83. Dr Lee thought she appeared depressed and worried. From the history provided and her presentation, she is primarily emotionally bonded to her father. Consequently, if he is deported there is a significant risk that she will suffer from a more depressive state. Already she reports difficulty with sleep and concentration. Separating her from her father is not in her long-term emotional interests, as he is her primary attachment figure. She does not have a good relationship with her mother. She is also at a crucial stage of her development as regards schoolwork, career choice and consolidation of identity. In relation to the possible effects of her living in Tonga, Dr Lee cited an article by Heather Young Leslie in The Contemporary Pacific, Volume 19, No 1, Spring 2007, which conveys an unfavourable picture of current conditions in Tonga. Dr Lee therefore considered that life in Tonga would be likely to be disruptive for Lelaine.
84. At the hearing Dr Lee said he was not aware that she had said that if her father were removed to Tonga she would remain in Australia, but he was not surprised as she had never lived overseas and has friends here.
85. He would expect her to have a strong bond with her cousin Theresa and her family which would be a source of solace to her if her father were removed. Maintaining contact with her father by telephone and webcam might help, but it was hard to say.
86. Dr Lee was asked if he had any concerns stemming from the fact that the applicant had been convicted of indecently assaulting Roxanne, his de facto step-daughter, but Dr Lee was unaware of that conviction or the circumstances of the offence.
Observations on the applicant’s evidence
87. The applicant’s evidence presents a number of difficulties, including the following:
(a)In his statement (Exhibit A2) the applicant sought to deny or minimise his assaults against Mabel Henry and made no mention of his other violent crimes or his indecent assault on Roxanne Henry. “On some occasions Mabel was injured whilst I was trying to defend myself from her advances”, he wrote. “On a number of occasions I lost my temper with her and I regret the harm that I caused her” (para 7). At the hearing he said the only assault on Mabel that he could recall was an occasion on which he pushed her away from him when she scratched his face. That is hard to reconcile with the offences to which he pleaded guilty, including:
(i)In relation to the assault causing Mabel Henry actual bodily harm on 10 January 1998 (Exhibit R2, pp26-30), he said at the hearing that maybe he could remember it, but then denied that he could recall the facts as stated in the fact sheet (ts pp31-32). At the police station following his arrest he declined to be formally interviewed. Apparently Ms Henry still had significant facial bruising over two weeks after the assault (Exhibit A11, p105). Two weeks later he pleaded guilty to the offence.
(ii)He said that the assault of 2 March 2000 in Marrickville Road was the occasion on which he had pushed her away after she scratched his face. According to the fact sheet, he punched her on the face, knocking her to the ground, and then kicked her a number of times in the head. In the course of this Tallara, then aged five, lay across Ms Henry’s head and screamed, “Leave my mum alone, don’t do that to mum, dad” (Exhibit R2, p52, also p69). At the time he admitted that he had hit her and pushed her, but denied kicking her. At the hearing he claimed that he had pushed her but denied kicking her, but also said he could not recall the facts as stated (ts p32). If he recalled that she scratched him and he had pushed her away, it is implausible that he could not recall anything else about the incident. The multiple injuries the victim sustained (Exhibit R2, p52) are consistent with repeated blows to the head and face, not with the applicant’s version.
(b)He denied the malicious damage offence of 2 June 1996, saying that it was Mabel Henry’s youngest son who had thrown some stones that broke windows in her house. He told the probation and parole officer who prepared the pre-sentence report, however, that he had broken the window himself (Exhibit R2, p10).
(c)He denied the aggravated indecent assault against Roxanne Henry to which he also pleaded guilty. In an explanation that was somewhat difficult to follow (and is missing from the transcript – see para 46 above), he appeared to be claiming that she had lied about the incident in order to conceal a lesbian incestuous relationship she was having with her mother, Mabel Henry. That did not, of course, explain why he pleaded guilty to the offence, given that he had legal representation and had given his lawyer his account of the events. (There was also an allegation, outlined below, that six years previously he had indecently assaulted Roxanne when she was aged 10, but no charges were laid.)
(d)He denied the incident involving failure to quit licensed premises when required by an employee (Exhibit R2, pp184-192), saying that when he was asked to leave, the police had already arrived. That account leaves unexplained the arrival of the police at that particular moment. He also denied harassing a female patron as alleged and said the hotel staff were lying.
(e)He also denied the assault occasioning actual bodily harm against Vicki Chand on 10 March 2005, saying that he had merely lifted her up because he did not like her going into the room where his daughter was (transcript missing – see para 46 above). Her injuries as described in the fact sheet (Exhibit R2, p163) are inconsistent with his version.
(f)His explanation for the assault and attempt to use an offensive weapon with intent to commit an indictable offence against Saupea Fepuleai on 23 June 2005 is also unconvincing. According to the fact sheet (Exhibit R2, pp207-208), in the course of an argument the applicant knocked Fepuleai to the ground, whereupon the latter telephoned the police. When Fepuleai told the applicant that he had called the police, the applicant pursued Fepuleai for 400 metres down the street, brandishing a piece of timber one metre in length. The victim called out a number of times, “Please help me” and picked up two pieces of stone to protect himself. When police arrived in response to Fepuleai’s telephone call, they saw the accused holding the piece of timber with both hands raised above his head facing Fepuleai. The applicant claimed that the two had “agreed to fight”, but to me those events do not sound much like manly sparring. Further, the applicant’s version does not explain the victim’s telephone call to the police. He had legal aid on the occasion and again pleaded guilty (transcript missing – see para 46 above).
(g)He also denied that on 26 February 2007 he had breached a bail condition against entering the suburbs of Redfern or Waterloo, saying that he had merely proceeded direct to Redfern station as instructed, but was arrested at the station. The details of the offence do not state where in Redfern he was apprehended, but almost two hours had passed since he was granted bail, which suggests that he had not gone directly to the station as directed. Redfern CityRail station is at most a five-minute walk from the police station.
(h)Although he pleaded guilty to all the offences, he said at the hearing that he could either not recall the offences or the allegations were untrue. He also conceded that some of them might be true if he had made a statement to the police, but did not identify the offences he meant to refer to (transcript missing – see para 46 above). He complained that he was not asked for his side of the story, but on at least three occasions he refused to be interviewed. He also said that he had pleaded guilty because the cases were repeatedly adjourned, but the majority were disposed of in two months or less, and in the case of one of the more protracted proceedings, the delay was due to the difficulty he was having in finding a lawyer (Exhibit A5, para 7). If there were frequent adjournments, however, they would have provided him with more opportunities to make his version of the events known. He was legally represented at least in respect of the more serious charges, and it would appear that his lawyer may have negotiated for the original charge of rape against Roxanne (Exhibit R2, p79) to be reduced to aggravated indecent assault.
(i)He also claimed that he pleaded guilty in some instances because his English was insufficient to enable him to explain what had happened and that he understood little of the proceedings in court. He gave his evidence at the hearing through an interpreter, and also had interpreters at one or two of his criminal proceedings, but it is clear that his English is quite adequate:
(i)He had a 15-year relationship with Mabel Henry, who only speaks English (Exhibit A11, pp49,64).
(ii)He was able to recount his life story to Mrs Byrne without difficulty (Exhibit A5, paras 5, 8). Mrs Byrne has never mentioned any language difficulties.
(iii)His former employer Mr Hansberry said he had no language difficulties with the applicant at work.
(iv)There is no reference to any lack of English skills or communications difficulties in the probation and parole service reports or the department of community service reports.
(j)People who speak quite good English sometimes ask for an interpreter as insurance against mental blocks or any difficulties in describing complex events, but also sometimes in order to gain additional time to consider answers to questions in cross-examination or to buttress a claim that they did not understand what they were doing (when pleading guilty, for example). In the present case I think the two last-mentioned reasons are the operative ones.
(k)He also claimed that he did not understand the department’s warning letter of 15 February 2005 (Exhibit A1 p80 and Exhibit R3) and that Theresa had been going to explain it to him but had gone into hospital. That is most improbable. The applicant said he learned to read English in Tonga, and the operative paragraph in the letter is printed in bold type and is not in technical language. Even if he did not understand it, it must have been obvious to him that it was an important communication and that he should find out what it meant. When Exhibit R3 was handed to him in the witness box, he began to read it aloud without difficulty until stopped by his counsel.
(l)He blamed his offending on his excessive drinking under Mabel’s influence, although in August 1996 he told a probation and parole officer that he did not abuse alcohol and that the disharmony in his relationship with Mabel Henry was caused by the arrival of their two children (Exhibit R2, p9). Mabel Henry told a probation and parole officer in February 1998 that the applicant has “a split personality when he is on the drink” and that she did not envisage the relationship continuing unless he were to abstain from alcohol (Exhibit R2, p35). In July 2005 he told a probation and parole officer that he did not have a current alcohol problem but acknowledged that in the past he had drunk to excess (Exhibit R2, p166). His relationship with Mabel Henry ended in 2003, however, and he had not been drinking with her at the time he committed the serious assaults against Vicki Chand and Saupea Fepuleai. Nor had he been with Mabel Henry at the time of the failure to quit licensed premises and malicious damage episode of 18 March 2004.
(m)He repeatedly told the department that he had no family in Tonga (G pp58, 70, 72), although he had told the probation officers who prepared his pre-sentence reports that he had a wife and three children there (Exhibit R2, pp35, 139) and keeps in regular contact with them. At the hearing he admitted that the three children of his marriage are still living in Tonga, and that he had sent money earlier this year for his youngest child’s final year university fees (ts pp8, 13). It is likely that he made that disclosure at the hearing because he knew or suspected that the pre-sentence reports would be before the tribunal.
88. In view of those equivocations, discrepancies, evasions, claims of poor memory and changes of story, it is impossible to regard the applicant as a reliable witness.
Applicant’s submissions
89. Mr Karp said that although it was clear that the tribunal cannot go behind the essential facts relating to criminal convictions or the sentences imposed, the tribunal could take account of the fact that, as Mrs Byrne says, he is naïve and easily led. He did not understand the warning letter which was not read to him in Tongan, and disputes the facts of some convictions. Some of his offences were very serious, but sending him back to Tonga is not the answer because of the effect it would have on those remaining in Australia.
90. As regards the risk of recidivism, it had to be borne in mind that all his offences were committed under the influence of alcohol, almost all in the company of Mabel Henry, and his relationship with Ms Henry is now over. It is clear that Mrs Byrne has modified his behaviour and plans to continue to do so. She is clearly not a woman to be crossed. He now drinks only on special occasions with his family and otherwise does not drink with them. Mrs Theresa Taufa is aware of his conviction for a sexual offence but would nevertheless be prepared to allow him into her home with her children. Mrs Byrne is aware of his convictions but nevertheless regards him as a decent man. The evidence also shows that he is a good worker.
91. Effectively he is like two people and the difference is alcohol. He has moderated his drinking although not quit completely. He now knows that he should not plead guilty to offences in order to dispose of them, and that he should ensure that he has an interpreter if charged with any future offences. The risk of future convictions is low.
92. As regards the best interests of the children, Lelaine has always lived with, or close to, her father and he is her main bond. Dr Lee had said that removing him to New Zealand would affect her psychological health and her future. It had not been possible to bring Tallara to Parramatta for the hearing. She is currently with her mother, who suffers from a number of life-threatening conditions, and her grandmother sometimes steps in to take care of her. Mrs Taufa had said that if necessary, she would take Tallara in to live with her and her family. The girls cannot speak Tongan and Lelaine was horrified by conditions in that country. The Department of Foreign Affairs and Trade report (Exhibit A12) showed that the country is unstable and experiencing negative growth. The applicant could not support the girls properly if he were living in Tonga. They could visit him, but that would not be the same as regular daily or weekly contact. Telephone and webcam contact might not be a suitable substitute, especially if there are problems with access to computers in Tonga. If the girls remain in Australia, they would be living with Mrs Taufa, but that would create a financial burden for her.
93. Mrs Byrne has taken the applicant in, and if he were returned to Tonga, her loss would be a lifetime loss.
94. Community expectations would be influenced by the reduced risk of recidivism, the detriment to the children and the potential strain on Mrs Taufa. The applicant deserved one more chance because he had not received a warning.
95. In reply, Mr Karp said that the applicant admits some offences, including the assaults on Justin Henry and Vicki Chand. He is prepared to admit responsibility for some of them. In every case he was very drunk and his memory could have been affected. He had the assistance of lawyers when he pleaded guilty to all the offences, and sometimes had the services of an interpreter. He is poorly educated, unskilled and has very limited English. He might dispute some of the facts surrounding his convictions, which could lessen his culpability.
96. He had begun his relationship with Merle Byrne in February 2007 when he was again convicted, but at that stage he had not begun living with her.
97. Dr Lee had said that the applicant is Lelaine’s primary bond and that his removal would be very detrimental to her. His relationship with Mrs Byrne is a new one, but Mabel Henry is now out of his life. His drinking has been moderated, so that the risk of recidivism has also been reduced.
98. It is speculative when Lelaine will become independent. The extended family background from which she comes means that the effect of losing her father would not be reduced.
Application of the Law and Findings of Fact
99. Usually, 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. The application of the character test is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:
…
The concept of “good character” in section 501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is “not of good character” within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry…
…
In ReMsumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192, the Tribunal said, at paragraph 37:
…
The character test, therefore, requires an objective consideration of the applicant’s “enduring moral qualities” (Irving 68 FCR 422 at 431). However, this does not require the applicant to meet the highest standards of integrity. The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Goldie 1999 FCA 1277).
…
100. On the other hand, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness (Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780, 781).
101. 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(1) not to cancel the applicant’s visa, notwithstanding that the applicant does not pass the character test. In so doing, I must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.
102. In this case the applicant concedes that he does not pass the character test because of his “substantial criminal record” within s 501(7) (ts p5).
103. I must therefore consider whether to exercise my discretion under s 501(1) to decide, nevertheless, whether 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.
…
104. Paragraph 2.3 sets out the primary considerations:
…
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:
…
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.
…
105. 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.
106. 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 similar offence”.
Protection of the Australian Community
107. 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(d) that sexual assaults, and in paragraph 2.6(f) crimes of violence against persons, are to be treated as very serious. In this case, the applicant has been convicted of numerous offences between 1990 and 2007. The convictions have resulted in a variety of sanctions, including bonds, fines, probations, and one instance of periodic detention for three months. He has also received several full-time custodial sentences, one of 12 months, six concurrent sentences of six months and two concurrent sentences of eight months. Most of his offences have involved violence and one is an indecent assault. In my view his record can only be viewed as very serious.
108. It is settled law that in evaluating an applicant’s criminal record and the prospects of recidivism, the tribunal is not at liberty to impugn the conviction recorded or the sentence imposed: Minister for Immigration and Multicultural Affairsv Ali (2000) 106 FCR 313 at 325-326; Minister for Immigration and Ethnic Affairs v Gungor (1982) 42 ALR 209 at 215-216; Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 at 240, 243, 244-245. At the same time, as circumstances may change after sentence, the tribunal may consider, for example, that an offender who showed no sign of rehabilitation at the time of sentence may, by the time visa cancellation is being considered, have shown significant rehabilitation so that the risk of further offences has reduced considerably (SRT at p243; Minister for Immigration and Multicultural Affairs v Serevi [2000] FCA 1691 at para 14).
109. The applicant denied the facts, including essential elements, of a number of his offences and no weight can be given to those assertions. As Ms Quinn pointed out, it is possible that he could have pleaded guilty for the sake of convenience once or twice, but not for multiple offences over a 17 year period, including some serious crimes in respect of which he had legal representation.
110. The next issue for the tribunal to consider is the risk of recidivism. Paragraph 2.10(b) of Direction No 21 states that a non-citizen with several previous convictions in Australia should be considered as having an increased risk of recidivism in light of that past behaviour. That proposition manifestly applies to the applicant.
111. The Direction also treats as relevant to the recidivism question the fact that a non-citizen commits a further offence after having been warned previously about the risk of visa cancellation (para 2.10(a)). The applicant was explicitly warned in writing by the department that he risked visa cancellation if he were to commit any further offences, and he acknowledged receipt of that warning in writing also. He claims that he did not understand the warning, but for the reasons given above that assertion cannot be accepted.
112. The applicant does not accept responsibility for most of his offences. A pre-sentence report in 1998 noted that he “appeared to lack insight into his pattern of behaviour” (Exhibit R2, p36) and that holds true today. He portrays himself as the largely innocent victim of lying witnesses and of an unfathomable and dilatory justice system.
113. He seems unable or unwilling to learn from his mistakes or from experience generally. The documentary evidence records that in 1996 he sexually assaulted Roxanne Henry, she being then aged 10. Roxanne thereupon moved to Queensland and lived with her grandmother. The alleged offence was not reported to police because neither Roxanne nor her mother wished any police action to be taken. Roxanne returned to live with her mother in about 2000, occupying her own room with a door that locks from the inside (Exhibit R2, p81). The 1996 sexual assault allegation was never tested in any court and was not put to him in cross examination. The Tribunal cannot accept it as truth of the facts alleged. But even if it was unfounded, the fact that the allegation was made, and that Roxanne left home as a result for four years, returning only when she could have a bedroom door that locked from the inside, should have made the applicant extremely careful about his behaviour towards Roxanne. Yet he went on to commit the aggravated indecent assault against her in 2002.
114. Although the applicant has sometimes denied that he had an alcohol problem or that it triggered his offending behaviour, intoxication is clearly a major factor in his record of convictions.
115. He has moderated his drinking as a result of his relationship with Merle Byrne. But he has been through periods of moderation before, only to elapse again. In a pre-sentence report dated 8 May 2007, probation and parole officer Ms Aurelia Montin, after noting his “mixed” response to supervision in the past, described this pattern of intermittent control:
…
Once in a crisis situation, like being arrested, Mr Puafisi appears to be able to control his alcohol intake either by complete abstinence or controlled drinking, however once the crises are over he returns to his usual drinking patterns and alcohol abuse (Exhibit R2, pp139-140).
…
116. He performed well as an employee at ABC Castings and Mr Hansberry would re-employ him if he is released
117. He is currently attending Alcoholics Anonymous meetings, but he was doing so in 1998 without producing any lasting result (Exhibit R2, p36). He blames Mabel Henry for his excessive drinking, but he was not in any kind of association with her when he committed his 2007 offences.
118. Mrs Byrne has had a positive influence on his drinking patterns and states firmly that she will not have any inebriated behaviour on his part. As Ms Quinn pointed out, however, there is only so much that she can do, especially given his failure to accept responsibility for his past misconduct. Further, Ms Montin noted (Exhibit R2, p 139), the applicant’s relationship with Mrs Byrne “can be said to be on its ‘honeymoon’ phase”. If the applicant were to tire of Mrs Byrne’s strict regimen, or were to decide to take a night off, his past record suggests that he would return to the bottle, with the kinds of consequences that have occurred in the past.
119. Consequently, although there are some positive signs, the process of rehabilitation has only begun and it is too early to say whether or not it will prove lasting.
120. 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 is perhaps better 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.
121. 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.
122. 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”.
123. Given the applicant’s conviction for aggravated indecent assault and his record of repeated offences of violence, including some quite vicious assaults, considerations of deterrence weigh against disturbing the delegate’s decision in this case.
Expectations of the Australian Community
124. 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.
…
125. A long-standing principle of international law provides that individuals do not have a right to immigrate, and that general immigration decisions lie in the discretion of the state concerned (I.A. Shearer, Starke’s International Law, 11th edn. Sydney 1994, 314-315; I Brownlie, Principles of International Law, 5th edn. Oxford 1998, 552). That principle is implicitly confirmed by international human rights treaties. For example, the International Covenant on Civil and Political Rights prohibits only the arbitrary deprivation of a person’s right to enter his or her “own country” (Art. 12.4). Consistently with those principles, 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).
126. 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).
127. 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 can be imposed on them (at p658).
128. 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]).
129. In my view the public would consider that a person who had accumulated a record of violent offences, and an aggravated indecent assault, over a period of 17 years had forfeited the right to remain in Australia. At the same time, the community would expect that proper consideration should be given to the interests of the children, in this case especially Lelaine.
The Best Interests of the Child
130. 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)).
131. The Full Court in Wan (at p142) made it clear that “provided that the tribunal did not treat any other consideration as inherently more significant than the best interests… [of the child], it was entitled to conclude, after a proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children”.
132. Commenting on that passage, Deputy President the Hon CR Wright in Re Barattini and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 157 noted that a finding on a child’s best interests did not automatically entitle a person who failed the character test to the grant of a visa (at para 34).
133. Lelaine, aged 16, and Tallara, aged 12, are Australian citizens. At present Tallara is living with her mother in Brisbane. Mabel Henry is in very poor health and it would appear that Tallara’s grandmother also plays an active part in Tallara’s care. She is reluctant to let Tallara have anything to do with her father and it proved impossible to bring her to Parramatta for the hearing. Dr Lee did not evaluate Tallara and little is known about her living conditions. It is possible that she may be undertaking home schooling, but in what circumstances that is permitted in Queensland and what level she has attained are matters on which there is no evidence. Mrs Taufa has said that if the applicant were removed to Tonga, she would if necessary undertake responsibility for Tallara’s care, although that would create a financial struggle for her and her family. To what extent financial assistance would be available from Centrelink or other sources was not explored in the evidence. It does seem that Tallara has a close bond with her father.
134. Lelaine has lived with Mrs Taufa or other family members since she was a baby. Dr Lee said she has mainly bonded with her father and would be likely to suffer from depression if separated from him. She is unimpressed by living conditions in Tonga, however, and if her father were removed to that country she would elect to remain in Australia with the long-suffering Mrs Taufa, a circumstance of which Dr Lee was unaware when he assessed her. He conceded, however, that she would have a strong bond with Mrs Taufa and her family, which would be a source of solace to her if her father’s visa were cancelled.
135. Lelaine visits Tonga fairly regularly and would be able to spend time with her father in the course of her stays in that country. In between times she could also maintain contact by telephone and presumably by email and webcam. Lelaine is now aged 16 and will officially be an adult in 18 months' time. Although her father’s return to Tonga would undoubtedly be distressing and potentially depressing for her, she has experienced prolonged separations from him before while he has served custodial sentences.
136. There is insufficient evidence to make any significant findings about Tallara’s best interests, other than to make the general assumption that it would be better for her to be able to see him more regularly than is likely to be the case if he returns to Tonga. It is in Lelaine’s best interests that her father remain in Australia, but for the reasons given, that consideration does not merit decisive weight. Nevertheless, overall the best interests of the children favour the restoration of the applicant’s visa.
Other considerations
137. 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.
138. The applicant has no business or similar ties in Australia. Much of his family is here, including his two daughters Lelaine and Tallara, but he has three grown children and a sister in Tonga. As living conditions in Tonga appear to be less than ideal at the present time, he would suffer some hardship in relocating to that country. His other family members in Australia would presumably suffer some emotional hardship if he were removed to Tonga.
139. Mrs Merle Byrne has a genuine commitment to her de facto relationship with the applicant and hopes that in due course it will develop into marriage. According to the evidence, however, the applicant has never said anything about marriage. If he were removed to Tonga she would experience some emotional hardship, and that gives her a compassionate claim. But the fact that she knew about his criminal past from an early stage in their relationship affects the weight to be given to that claim: Re Dumbrell and Department of Immigration and Multicultural Affairs [2000] AATA 443 at para 35.
140. There is no substantial evidence of rehabilitation or recent good conduct by the applicant, and indeed his general denial of responsibility for his past offences, together with his history or relapses after periods of good behaviour, suggest that he has a long way to go in that regard.
141. While the best interests of Lelaine and Tallara are and must be a primary consideration, in cases where there has been very serious offending behaviour and little evidence of rehabilitation, the tribunal has in the past held that community protection and expectations have outweighed the best interests of the child and the other considerations: see, eg, Re Zhang and Minister for Immigration and Citizenship [2007] AATA 1617; Re Chor and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 766; Re Qui and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 828; Re Ruano and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1240; Re Hadchiti and Minister for Immigration and Multicultural Affairs [2002] AATA 65.
142. This is such a case. The decision under review is affirmed.
I certify that the 142 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: ...............[sgd]...........................................................
R. Wallace, AssociateDate/s of Hearing: 12 & 13 September 2007
Date of Decision: 3 October 2007
Solicitor for the Applicant: Mr G Miller, Holt & Allen Solicitors
Counsel for the Applicant: Mr L J Karp
Solicitor for the Respondent: Ms Therese Quinn, DLA Phillips Fox Lawyers
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