Rangiwai and Minister for Immigration and Citizenship
[2013] AATA 171
•27 March 2013
[2013] AATA 171
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/0129
Re
RANGIWAI, Morehu
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Professor R Deutsch, Deputy President
Date 27 March 2013 Place Sydney Decision Summary
The decision under review is set aside and a decision substituted that the Minister’s discretion under s 501(2) of the Migration Act 1958 should not be exercised to cancel Mr Rangiwai’s visa.
........................................................................
Professor R Deutsch, Deputy President
Catchwords
IMMIGRATION – Visa cancellation – Character test – Substantial criminal record – Protection of the Australian community – Nature and seriousness of the conduct – Risk to the Australian community – Strength, duration and nature of ties to Australia – Best interests of any minor children – Effect of cancellation on immediate family in Australia – Impact on Australian business interests – Impact on members of the Australian community if visa not cancelled – Impediments if applicant removed from Australia to home country – Set aside and substituted so that the Minister’s discretion to cancel is not exercised.
Legislation
Migration Act 1958 ss 501; 499
Criminal Code 1899 s 349; and, subss 210(1)(a); 210(4)Cases
Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198
Secondary Materials
Ministerial Direction [No.55] – Visa refusal and cancellation under section 501
REASONS FOR DECISION
Professor R Deutsch, Deputy President
27 March 2013
Mr Rangiwai has applied to the Tribunal for the review of a decision of a delegate of the Minister for Immigration and Citizenship (the Minister) to cancel his visa on the ground that he does not pass the character test because of his substantial criminal record as defined in s 501(7)(c) of the Migration Act 1958 (“the Migration Act”).
BACKGROUND
Mr Rangiwai was born in New Zealand on 7 July 1987 and is now aged 25. In May 2007, when he was 20 years old, he arrived in Australia on a Class TY Subclass 444 Special Category (Temporary) Visa.
Apart from brief periods of absence, broadly from his arrival in Australia until his incarceration Mr Rangiwai was in secure stable employment with a company known as Trebe Pty Ltd or with the Defence Housing Authority.
On 2 October 2010, when he was 23 years of age, he committed a criminal offence the details of which are outlined below.
On 18 October 2010 he was charged in the Emerald Police Station with an offence of unlawfully and indecently dealing with his niece, a child under the age of 16 years, while she was in his care. He was also charged with rape under s 349 of the Criminal Code 1899 (QLD) (the Criminal Code).
On 3 May 2012 he was convicted of the offence of ‘Indecent Treatment of Children Under 16 – Lineal Descendant/Guardian/Carer under subs 210(1)(a) and 210(4) of the Criminal Code and was sentenced to imprisonment for 18 months, suspended for three years after serving six months. If he committed any further offences for which imprisonment is a possible punishment, he could be resentenced in relation to the subject offence and possibly be required to serve out the balance of the 12 month term of imprisonment.
Mr Rangiwai was acquitted of the charge of rape under s 349 of the Criminal Code.
Mr Rangiwai was released from prison on 2 November 2012 after having served the stipulated six months in prison.
On 15 November 2012 the Respondent’s delegate cancelled Mr Rangiwai’s visa and notice of that cancellation was given to him the following day.
He was detained by Emerald Police Officers on 3 January 2013 and is currently in immigration detention.
On 8 January 2013 he applied to this Tribunal for review of the delegate’s decision.
Events leading up to the Offence
On 1 October 2010 Mr Rangiwai had travelled to Rockhampton with his niece in order for her to buy clothes to attend the Emerald 100 Race Day. She also had an appointment with her optometrist. They both left Emerald at about 8:30PM and arrived in Rockhampton at 11:15PM. That evening Mr Rangiwai and the victim stayed at Mrs Katrina Kuiti’s house. Mrs Kuiti was and is a friend of Mr Rangiwai’s family. Mr Rangiwai recalls drinking one stubby of Toohey’s Extra Dry beer and then went to sleep but did not sleep well. At about 4:30AM he awoke and then fell asleep on a very small two seater couch.
He woke at around 6:00AM on 2 October 2010, and from about 8:30AM to 1:00PM he and his niece went shopping. He had planned to stay at Mrs Kuiti’s house on the night of 2 October 2010 but she had made plans for friends to stay with her that night and accordingly Mr Rangiwai had to make other arrangements. Accordingly he arranged to stay at a cabin which was owned by a work colleague. They stayed at the Southside Holiday Village in a cabin which had a separate bed for himself and his niece. After they arrived at the cabin Mr Rangiwai undertook minor repairs to his car and had a shower. He had been involved in a road accident earlier that day causing damage and expense to his car. He and the victim went to the Saleyards Hotel where Mr Rangiwai bought a six-pack of UDL Vodka Lime and Soda cans and a four pack of Vodka Cruiser Ice drinks.
Mr Rangiwai and his niece went to dinner at the Allenstown Hotel. He had one stubby of Hahn Premium Light beer during the meal. He testified that he had lost his appetite because of the incidents that had occurred earlier that day, being the confused mix-up with the accommodation, the car accident and an incident in which he had locked his car keys in his car.
Together, Mr Rangiwai and his niece returned to the cabin at around 8:45PM. Mr Rangiwai then drank quite quickly an alcoholic drink while his niece had a shower. When she finished the shower, they watched television together. His niece sat on the bed next to Mr Rangiwai. Mr Rangiwai started drinking due to the stress of the day and during that time all of the alcohol he had purchased was consumed. Mr Rangiwai believes that the victim had two of the drinks.
The Offence
At around this time according to Mr Rangiwai’s testimony, he placed his hand on the victim’s bra outside her bra but under her shirt. He also placed his hand on her bottom inside her shorts but outside her underwear and then placed his hand inside her underwear and on her vagina. At no time did Mr Rangiwai’s hand penetrate his niece’s vagina to any extent according to Mr Rangiwai.
In the sentencing remarks of his honour Judge Reid, his Honour accepted that the consumption of eight alcoholic drinks each containing about 1.6 standard drinks was a significant factor in Mr Rangiwai’s offending.
Judge Reid also commented in sentencing that Mr Rangiwai’s oft repeated argument that he believed the person with whom he was engaging in sexual activity with was another friend, and that as soon as he realised it was his niece he desisted, rolled over and went to sleep without saying anything was “absurd and unbelievable”. Judge Reid also rejected the view that Mr Rangiwai’s niece had instigated the conduct by exhibiting any sexual interest by placing her hand on Mr Rangiwai’s chest and her leg on his leg. Judge Reid specifically found that the activity that was engaged in was as a result of Mr Rangiwai’s deliberate acts and his niece had not consented.
Other offences
Mr Rangiwai has no criminal convictions in New Zealand and apart from the offence committed on 2 October 2010 he has no other criminal convictions in Australia.
He did not commit any offending conduct while in prison and has not committed any such offence since his release.
RELEVANT LAW AND POLICY
Section 501 (2) of the Migration Act provides that the Minister may cancel a visa if “the Minister reasonably suspects that the person does not pass the character test” and “the person does not satisfy the Minister that the person passes the character test”.
Section 501(6)(a) provides that a person does not pass the character test if the person has a substantial criminal record. ‘Substantial criminal record’ is defined in s 501(7) as, among other things, having been sentenced to a term of imprisonment of 12 months or more, or sentenced to two or more terms of imprisonment where the total of those terms is two years or more.
Mr Rangiwai has been sentenced to a term of imprisonment of 12 months or more and accordingly does not pass the character test. It was therefore open to the Minister to cancel his visa.
Under s 499(2A), in exercising the discretion conferred by s 501, the decision-maker is required to comply with a direction made under s 499. Direction No 55 – visa refusal and cancellation under s 501 of the Migration Act (‘Direction 55’) is a direction made under s 499. Direction 55 commenced to operate on 1 September 2012 and is therefore applicable in this case.
In exercising the discretion, the decision-maker is clearly bound to follow Direction 55.
The purpose of the direction is to ‘guide decision-makers performing functions or exercising powers under s 501 of the Migration Act to refuse to grant a visa to, or to cancel the visa of, a person who does not satisfy the Minister that the person passes the character test’.
Direction 55 sets out a number of principles that provide a framework for decision-makers in approaching their task. These principles are set out in para 6.3 of Direction 55 as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly and disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia
(3)In some circumstances, criminal offending or other conduct and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the Visa.
(4)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, or contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community from most of their life, or from a very young age.
(5)Australia has a low tolerance of any criminal or other serious conduct by Visa applicants or those holding a limited stay Visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(6)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a Visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizens Visa should be cancelled, or the Visa application refused.
Paragraph 7 of Direction 55 states that the decision-maker, informed by the principles just outlined in the preceding paragraph:
a)must take into account the primary and other considerations referred to below, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; and
b)is required to determine whether the risk of future harm by a non-citizen is unacceptable. This requires a balancing exercise, involving a consideration of the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community.
Paragraph 8 of Direction 55 provides that:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case, noting that there are differing considerations for visa holders and visa applicants as articulated in Parts A and B. Separating the considerations for visa holders and visa applicants recognises that persons holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal or cancellation of the visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
Paragraphs 9 and 10 set out a number of primary and other considerations to which the decision-maker must have regard when considering whether to exercise the discretion to refuse or cancel a visa.
The primary considerations are set out in para 9(1) as follows:
9. Primary considerations – visa holders
(1)In deciding whether to cancel a person’s visa, the following are primary considerations:
a)protection of the Australian community from criminal or other serious conduct;
b)the strength, duration and nature of the person’s ties to Australia;
c)the best interests of minor children in Australia;
d)whether Australia has international non-refoulment obligations to the person.
The other considerations are set out in para 10 as follows:
10.In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a)The effect of cancellation of the person’s visa on the person’s immediate family in Australia, if those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely;
b)The impact on Australian business interests;
c)The impact of a decision not to cancel a visa on members of the Australian community, including victims of the person’s criminal behaviour, and the family members of the victim or victims where that information is available and the person being considered for visa cancellation has been afforded procedural fairness;
d)The extent of any impediments that the person may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account the person’s age and health, whether there are substantial language or cultural barriers, and any social, medical and/or economic support available to them in that country.
PRIMARY CONSIDERATIONS
The primary considerations relevant to this case are:
·the protection of the Australian community from criminal or other serious conduct;
·the strength, duration and nature of the ties to Australia; and
·the best interests of any minor children in Australia.
Australia does not appear to have any international non-refoulment obligations of relevance to this case.
The relevant primary considerations are addressed below.
Primary consideration 1 – Protection of the Australian Community from Criminal or Other Serious Conduct
Protection of the Australian Community
In considering the protection of the Australian community from criminal or other serious conduct, para 9.1 of Direction 55 states:
(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2)Decision-makers should also give consideration to:
a)The nature and seriousness of the person's conduct to date; and
b)The risk to the Australian community should the person commit further offences or engage in other serious conduct.
The nature and seriousness of the conduct
Paragraph 9.1.1(1) of Direction 55 states:
(1)In considering the nature and seriousness of the person's criminal offending or other conduct to date, decision-makers must have regard to factors including:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
c)Where the person is in Australia, that a crime committed while the person was in immigration detention; during an escape from immigration detention; or after the person escaped from immigration detention, but before the person was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
d)The principle that any conduct that forms the basis for a finding that a person does not pass the character test under s501(6)(b) or (d), or is not of good character under s501(6)(c), is considered to be serious;
e)The sentence imposed by the courts for a crime or crimes;
f)The frequency of the person's offending and whether there is any trend of increasing seriousness;
g)The cumulative effect of repeated offending;
h)Whether the person has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
i)Whether the person has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the person's migration status (noting that the absence of a warning should not be considered to be in the person's favour);
j)Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
As is evident from the facts, Mr Rangiwai is a non-citizen and in view of the crime of which he has been convicted, he has failed to meet the expectation that he will be law-abiding and will not cause harm to other individuals or the Australian community.
In reviewing the factors set out in para 9.1.1 of Direction 55 and using the same lettering, the following observations are relevant:
(a)Mr Rangiwai’s conviction is in respect of a sexual crime and sexual crimes are viewed very seriously;
(b)Mr Rangiwai’s crime was committed against his 14 year old niece and crimes committed against vulnerable members of the community such as minors are serious;
(c)no further crimes were committed by Mr Rangiwai while in immigration detention or thereafter;
(d)the sections referred to are not pertinent to this case;
(e)the sentence imposed by the Emerald District Court was a period of imprisonment of 18 months, suspended for three years after serving six months. The relevant provision of the Criminal Code imposing the maximum sentence in such a case is s 210(4) which provides that:
If the child is, to the knowledge of the offender, his or her lineal descendant or if the offender is the guardian of the child or, for the time being, has the child under his or her care, the offender is guilty of a crime, and is liable to imprisonment for 20 years.
Thus, it is clear that the judge in the criminal trial, Judge Reid, imposed a sentence which was at the light end of the spectrum having regard to the fact that a sentence of anything up to 20 years could have been imposed.
(f)Mr Rangiwai has only one criminal conviction which is in respect of the offence previously described. There have been no other offences in respect of which a conviction has been recorded and so there is no trend to speak of;
(g)this factor is not relevant as there is no repeat offending;
(h)Mr Rangiwai does not appear to have provided false or misleading information to the Department and he has fully disclosed prior criminal offending;
(i)this factor is not relevant as there is no repeat offending;
(j)this factor is not relevant as the offence or conduct was committed in Australia.
Reviewing these factors it is clear that the first two factors point strongly towards cancellation whereas of the remaining eight factors, four are irrelevant in the circumstances of this case and four point in favour of allowing Mr Rangiwai to remain in Australia.
In particular, it is worth noting that while the offence in question is serious, particularly because it was committed against a related minor, there is only one offence with no repeat offending and the sentence imposed by the trial judge was at the lower end of the scale, having regard to the fact that the maximum penalty could have been 20 years imprisonment.
It is worth noting that in sentencing the trial judge commented that:
Having regard to your youth and lack of prior convictions, I’m inclined to accept that 18 months is an appropriate head sentence…
I am impressed by the personal references that have been put forward on your behalf and it’s for that reason … that I’ve acceded to a head sentence of 18 months – at the lower end of the Crown’s submissions …
I also note that the Crown had sought a sentence of 18 months to two years with no sentence suspension.
The risk to the Australian Community should the person commit further offences or engage in other serious conduct
Paragraph 9.1.2(1) states that in considering whether a person represents an unacceptable risk of harm:
… decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. In making this assessment, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and
b) the likelihood of the person engaging in further criminal or other serious conduct, taking into account:
i information and evidence on the risk of the person re-offending; and
iievidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence, noting that decisions should not be delayed in order for rehabilitative courses to be undertaken.
There is no doubt that significant harm would be sustained by individuals and the Australian community should Mr Rangiwai engage in further criminal conduct of the kind in respect of which he has been convicted.
A report prepared by Ms Rima Nasr, a psychologist who interviewed Mr Rangiwai for a total of three hours at the Villawood Detention Centre on 4 February 2013, forms part of the evidence in this case and Ms Nasr was called and gave evidence as a witness at the hearing.
Ms Nasr is a forensic psychologist with a master’s degree in Forensic Psychology. She has had six years’ experience as a psychologist which has included assessment and treatment of both victims and offenders presenting with forensic and other mental health concerns. She has worked in both correctional and community-based settings with violent and sexual offenders, and has been involved in assessment and treatment of individuals presenting and suffering from trauma-related mental health issues. She is also an accredited counsellor with the New South Wales Children’s Commission Child Sex Offender Counsellor Accreditation Scheme at the clinical level for adults and adolescents, in addition to being an authorised counsellor with the Victims Services Tribunal.
In her report she makes a number of important statements including:
Mr Rangiwai demonstrated a satisfactory understanding of consent and sexual boundaries and he did not endorse specific attitudes associated with sexual abuse. It is noted however, that he continues to struggle to understand issues pertaining to consent and sexual boundaries and this will need to be a treatment goal in the future. He appears amenable to change in this regard, with his maturity developing and thereby expressing a motivation to better understand sexual boundaries and the impact on the victim involved. Moreover, Mr Rangiwai demonstrated some insight into victim empathy and the potential consequences of sexual abuse, both on the victim and her family, but also others who place their trust in him.
…
The Static-99, developed by Hanson and Harris (2000), assesses risk of sexual and violent recidivism (as defined by new convictions), using static or historical variables. The instrument has been developed based on group data relating to offenders and therefore does not relate to personal risk for any one offender. Rather, it can be considered as indicating a general potential for sexual violent reoffending based on the nature of past offending. Mr Rangiwai’s score of one on this measure places him in the low risk category, based on the following variable:
·Never lived with a partner for over two years. Research suggests that having a prolonged intimate connection to someone may be a protective factor against sexual reoffending. It is also noted that Mr. Rangiwai has had experience of positive and healthy relationships, confirmed in the character reference by Ms Windsor…
Further, in her report Ms Nasr mentions that there are a number of issues which are protective against Mr Rangiwai’s risk of further offending namely:
·He did not endorse attitudes consistent with sexual abuse at interview on this occasion;
·He has some understanding of victim empathy and the antecedents to his offending behaviour (although I note that he requires future psychological intervention in this regard);
·There was no evidence of sexual deviancy in this case;
·There was no evidence of violence (including both physical and psychological coercion) in his sexual offending;
·He does not appear inherently psychopathic;
·He does not have a criminal history;
·He did not report a history of antisocial behaviour;
·He has no mental health problems;
·His psychosocial functioning appears intact, with relatively stable intimate and social relationships;
·He has experience of long-term stable employment, with positive references to support this;
·He has engaged in education and qualifications to expand his employment potential;
·He has displayed an ability to implement structure and routine, while working towards future-oriented goals;
·He stated that he has social supports in the community, including his employer;
·He appears to have some adaptive coping mechanisms and support systems, and is seemingly maturing in his insight and problem solving skills; and
·He expressed a motivation to comply with offence-specific treatment as recommended by the Courts.
Clearly, the reference to not having a criminal history should be read as a reference to not having a criminal history apart from the conviction in respect of the offence in question.
In addition to the above, Ms Nasr noted that there are two factors that can be considered to elevate Mr Rangiwai’s future risk of re-offence, namely his history of alcohol use related to his offending and the fact that he is currently not involved in an intimate or stable relationship.
In conclusion, Ms Nasr states that:
On the basis of the current assessment, Mr Rangiwai presents an overall low risk of sexual recidivism. The biggest risk for Mr Rangiwai relates to his alcohol use as a means of emotional coping particularly during stressful periods where he is likely to engage in opportunistic and impulsive decisions, without consideration or forethought on the consequences on others.
It is worth noting that there appears to have been little done by Mr Rangiwai in terms of treatment to ensure that an offence of a sexual nature is not repeated.
In part this was explained in the hearing and is also referred to in Ms Nasr’s Report. While incarcerated Mr Rangiwai received no counselling as sexual abuse programs have a wait-list, and an offender is expected to have a minimum sentence of at least 18 months, and typically much longer before being eligible. Mr Rangiwai’s sentence was viewed as being only six months by the prison authorities and accordingly he was ineligible for such programs.
Upon his release he sought work and financial stability which would have funded his psychological sessions, but he was detained within a few months and hence was not afforded the opportunity to seek offence-specific treatment. The psychologist has indicated that in her view a course of treatment of approximately three months is what is needed, having regard to Mr Rangiwai’s positive attitude and motivation for treatment.
Counsel for the Respondent drew attention to the decision in Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198, which held that even a low or minimal risk is real provided that it is not far-fetched or fanciful. There is no doubt that is correct and that the risk of recidivism in this case is real. But that must be true of all cases where there has been a criminal conviction.
In this case the risks to the Australian community are low particularly having regard to:
·The comments of the forensic psychologist;
·Mr Rangiwai has secure long term employment promised to him through his former employer;
·He has a place to live near his proposed work-site;
·He has begun alcohol rehabilitation treatment and has indicated that he is determined to continue with that program;
·He has indicated a willingness, indeed a desire, to undertake offence-specific treatment which will last for about three months.
There can be no doubt that Mr Rangiwai has committed a serious criminal offence. However, there is a clear assessment from an appropriately trained and experienced forensic psychologist that Mr Rangiwai’s risk of re-offending is low and this Tribunal accepts and adopts that assessment.
Conclusion on Primary Consideration 1
The Tribunal thus concludes that this is a case in which the community would accept a reasonable degree of tolerance in its attitude towards whether Mr Rangiwai should be permitted to remain in Australia.
Further, while the conduct of Mr Rangiwai in relation to the offence is serious it is his only crime on his otherwise unblemished record, his sentence was at the low end of what might have been applied in respect of such conduct and he has been honest in his dealings with Department of Immigration and Citizenship (DIAC), all factors which are relevant considerations in respect of this primary consideration (see para 9.1.1(1)).
Thus, in respect of this primary consideration, the Tribunal concludes in favour of not cancelling Mr Rangiwai’s visa.
Primary Consideration 2 – Strength, Duration and Nature of the Person’s Ties to Australia
With regard to the strength, duration and nature of Mr Rangiwai’s ties to Australia, para 9.2(1) states that decision-makers must have regard to:
…
a)How long the person has resided in Australia, including whether the person arrived as a young child, noting that:
i.Less weight should be given where the person began offending soon after arriving in Australia; and
ii.More weight should be given to time the person has spent contributing positively to the Australian community.
b)The strength, duration and nature of any family, social and/or employment links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
Mr Rangiwai first arrived in Australia in 2007 when he was almost 20 years of age. Apart from a 10 day period when he was in New Zealand in July 2008, and a more extensive five-month period in New Zealand in 2009, Mr Rangiwai has resided in Australia for the last six years. The period of his absence in 2009 was largely caused by a medical problem which required him to be hospitalised in New Zealand.
Mr Rangiwai’s immediate family including his mother, father, three sisters and brother and his son all currently reside in New Zealand. His only close family residing in Australia are his sister (the mother of the victim in respect of the offence for which he was convicted) and an aunt and uncle who both gave statements in support but who see Mr Rangiwai only sporadically.
Mr Rangiwai clearly has a strong work ethic and during his time in Australia has developed a strong bond with one of his main employers (Mr Ebert through his company, Trebe Pty Ltd) and that employer’s family. Both Mr and Mrs Ebert gave statements and presented verbal evidence at the hearing in strong support of Mr Rangiwai, and Mr Ebert indicated a willingness, and indeed a desire, to employ Mr Rangiwai on an ongoing basis. Mr and Mrs Ebert also indicated that there was a strong social bond between them and Mr Rangiwai and that he would be welcome in their home and in the company of their children.
Conclusion of Primary Consideration 2
Mr Rangiwai arrived in Australia aged 20 and the only offence he has committed occurred three and a half years after. During that time and thereafter up to his imprisonment (a further year and a half) he made a significant positive contribution to his local community through his diligent work.
He also has developed significant social and employment links in Australia.
On the other hand, his links to family in Australia are few and his relationship with his Australian located sister and niece remain fragile at best and, more realistically, unworkable having regard to what has transpired between them and Mr Rangiwai.
Having regard to the above, the Tribunal concludes that this primary consideration is in favour of non-cancellation, as his positive contribution to the Australian community and his significant social and employment links outweigh the lack of family connections.
Primary consideration 3 – Best interests of minor children in Australia
The third primary consideration that para 9(1) of Direction 55 requires the Tribunal to consider is the best interests of minor children in Australia affected by the decision. This consideration only applies where the child is, or will be, under 18 years old at the time the decision to cancel Mr Rangiwai’s visa is expected to be made. Where there is more than one child under 18 years old, para 9.3(3) states “ if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ”.
Paragraph 9.3(4) sets out a number of factors that must be considered (where relevant) in ascertaining the best interests of the child. These include:
(a)The nature and duration of the relationship between the child and the person. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the person is likely to play a positive parental role in the future, taking into account the length of time remaining until the child turns 18, and any Court orders relating to parental access and care arrangements;
(c)The impact of the persons prior conduct, and any likely future conduct and whether that has, or will have, a negative impact on the child;
(d)The likely effect that any separation from the person would have on the child;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the person has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the person’s conduct.
Mr Rangiwai has a four-year-old son who resides in New Zealand with his mother and her partner. There is some as yet poorly defined plan for Mr Rangiwai’s son to move to Australia together with his mother and her partner. However, this could be some years away and, in any event, it is not clear they would move to a location which would give Mr Rangiwai the opportunity to see and bond with his son to any extent greater than that which is presently available while Mr Rangiwai’s son remains in New Zealand. In such circumstances it is difficult to bring this possibility in as a relevant factor.
The only children that would be affected by the cancellation of Mr Rangiwai’s visa are his 17-year-old niece and possibly the four children of his former employer, Mr Ebert. These children include a boy aged 16 and three girls aged 14, 4 and 2.
Mr Rangiwai’s niece is the victim of his offending and it is clear that his conduct has had a detrimental impact on the victim. Items g) and h) above clearly point to a conclusion that cancellation of Mr Rangiwai’s visa would be in the best interests of his niece.
There is a plan in place for Mr Rangiwai to live with his former employer Mr Ebert, his wife and four children.
Mr and Mrs Ebert both gave evidence to the effect that they had no concerns in relation to Mr Rangiwai being in the company of their children, even having regard to the offence in respect of which he has been convicted. Nonetheless, there is no evidence as to how the best interests of these children might be accommodated by the cancellation or non-cancellation of Mr Rangiwai’s visa. Item c) would tend to suggest that having regard to Mr Rangiwai’s past conduct it is in the best interests of these children if his visa was cancelled. Item e) is also relevant in that Mr and Mrs Ebert are already fulfilling parental roles in respect of their own children. In that sense Mr Rangiwai’s presence is not needed to enhance the best interests of these children.
Conclusion on Primary Consideration 3
The Tribunal concludes that this primary consideration points towards cancellation of Mr Rangiwai’s visa.
OTHER CONSIDERATIONS
Paragraph 10 of Direction 55 provides a non-exhaustive list of other considerations which must be taken into account where relevant. However, subpara 8(4) states that primary considerations should generally be given greater weight.
The relevant other considerations are:
(a)the effect of cancellation of the persons visa on the person’s immediate family in Australia, if those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely;
(b)any impact on Australian business interests;
(c)the impact of a decision not to cancel a visa on members of the Australian community, including victims of the person’s criminal behaviour, and the family members of the victim or victims where that information is available and the person being considered for visa cancellation has been afforded procedural fairness;
(d)the extent of any impediments that the person may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account a person’s age and health, whether there are substantial language or cultural barriers; and any social, medical and-or economic support available to them in that country.
In Mr Rangiwai’s case if his visa were to be cancelled it would have very little consequence in relation to his immediate family in Australia, since most of his immediate family reside in New Zealand.
In relation to the impact which a cancellation of his visa would have on Australian business interests, the only plausible consequence may be that Mr Ebert’s business would be detrimentally affected by the unavailability of a skilled and diligent worker. In evidence it became clear that whilst this would be undesirable and an inconvenience, as skilled workers of his calibre are not easy to come by, it would not be a substantial consequence to that business.
In terms of the effect on the Australian community, particularly the victims of his criminal behaviour and the family members of the victim, if his visa were not to be cancelled there are some important considerations to take into account. It is clear that his niece who was the victim of his offending has been severely traumatised by the relevant incident, but it appears that Mr Rangiwai has avoided any further contact and is unlikely to make contact with the niece of his own accord. In terms of the victim’s family, there appears to have been some reconciliation with the victim’s mother, Mr Rangiwai’s sister, and indeed she provided substantial written and verbal support in relation to Mr Rangiwai’s application to revoke the cancellation of his visa. The remaining family members are clearly supportive of and have expressed an intention to assist Mr Rangiwai in whatever way possible.
Direction 55 also makes reference to the person being considered for visa cancellation having been afforded procedural fairness. Mr Rangiwai has been given ample opportunity to be heard and I am satisfied that such procedural fairness has been afforded in this case.
Finally, para 10 lists as a further consideration the extent of any impediments the person may face if they are removed from Australia to their home country in establishing themselves and maintaining basic living standards, taking into account the person’s age and health, whether there are substantial language or cultural barriers and any social, medical and/or economic support available to them in that country.
In this case Mr Rangiwai has indicated in a statement made to DIAC dated 19 October 2012 that:
It is very hard to find adequate work in New Zealand and I fear that I would have to resort to government support. I have sold all my assets in New Zealand to start a new life in Australia. If I return to New Zealand I fear that I would be unemployed and will have no employment with my charge(sic). I have employment to go to hearing Australia with Trebe construction in Emerald, Queensland. If I return I won’t be able to financially support provide for my son’s future.
The statement clearly suggests that there will be some difficulty in reintegrating into New Zealand society, but having regard to his youth and good health and the fact that there are few, if any, language or cultural barriers and that there would be some considerable social support available to him in New Zealand through his family, the difficulty suggested in Mr Rangiwai’s statement may well be unduly pessimistic in regard to opportunities available to Mr Rangiwai in New Zealand.
OTHER RELEVANT CONSIDERATIONS
Mr Rangiwai has under oath indicated that he no longer drinks alcohol of any kind and that he has a firm commitment to continue to abstain. He has had some treatment for alcohol abuse (three sessions with a counsellor) but clearly it is not enough and he has indicated that he intends to seek further assistance in this regard. He has also indicated that he will seek counselling to ensure that his behaviour is such that he will never again engage in activities of the kind that led to his conviction. Finally, Mr Rangiwai has expressed considerable regret for his actions and appears to be genuinely remorseful.
Conclusion on other Considerations
In the Tribunal’s view, the “other” considerations favour Mr Rangiwai’s visa being cancelled.
CONCLUSION
Paragraph 7(1) of Direction 55 requires the Tribunal, informed by the principles set out in para 6.3, to determine whether the risk of future harm by a non-citizen is unacceptable, balancing the likelihood of future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community.
As stated above, the first and second primary considerations on balance favour his visa not be cancelled. The reasons included:
·during the time that Mr Rangiwai was in Australia and not incarcerated he contributed positively to the Australian community working diligently in two different jobs performing skilled work to a high level;
·apart from the one offence which resulted in his conviction he has no criminal record either here or in New Zealand;
·the sentence imposed on him was at the lower end of the spectrum having regard to the fact that he faced a potential sentence of up to 20 years imprisonment;
·the Forensic Psychologist has expressed the cautious view that the risk of re-offending in this case is low and there are many factors to support this assessment although alcohol use and the lack of an intimate or stable relationship are risk factors.
The Tribunal has accepted that the risk of Mr Rangiwai re-offending is low and this, taken together with all the other factors mentioned above, leads the Tribunal to conclude that this is a case in which the community would tolerate a reasonable degree of risk in its attitude towards Mr Rangiwai should he be permitted to remain in Australia. It must, therefore, be weighed in the balance with the other relevant considerations.
On the other hand, the Tribunal has concluded for the reasons stated above that the third primary consideration – the best interests of minor children in Australia – and the other considerations favour his visa being cancelled. In this context the Tribunal notes that para 8(4) of Direction 55 indicates that primary considerations should generally be given greater weight than the other considerations, and para 8(5) indicates that one or more primary considerations may outweigh other primary consideration.
The Tribunal concludes that in particular in view of:
·Mr Rangiwai’s unblemished criminal record apart from the one criminal conviction considered previously;
·His positive contribution to the Australian community through his work, over more than four years;
·The fact that the sentencing judge handed down a sentence at the lower end of the relevant spectrum; and
·The low risk of his reoffending,
the decision to exercise the Minister’s discretion to cancel Mr Rangiwai’s visa should be set aside and a decision substituted that the Minister’s discretion under s 501(2) of the Migration Act should not be exercised to cancel Mr Rangiwai’s visa. Mr Rangiwai will of course, be on notice, as he has not been before, that any future misconduct will lead to the cancellation of his visa being reconsidered.
DECISION
The decision under review is set aside and a decision substituted that the Minister’s discretion under s 501(2) of the Migration Act 1958 should not be exercised to cancel Mr Rangiwai’s visa.
I certify that the preceding 94 (ninety -four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Professor R Deutsch ....[sgd]..................................................
Associate
Dated 27 March 2013
Dates of hearing 18 and 19 March 2013 Applicant In person Advocate for the Respondent Catherine Hayes Solicitors for the Respondent Clayton Utz
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