Rauhina and Minister for Immigration and Citizenship
[2007] AATA 1359
•25 May 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1359
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/0594
GENERAL ADMINISTRATIVE DIVISION ) Re Peter Douglas RAUHINA Applicant
And
Minister for Immigration and Citizenship
Respondent
DECISION
Tribunal Professor GD Walker, Deputy President Date25 May 2007
PlaceSydney
Decision The decision under review is set aside and the matter remitted to the respondent for reconsideration on the basis that the discretion be exercised in favour of not cancelling the applicant’s visa.
......................[sgd]........................
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION – … cancellation of visa – applicant failed character test – applicant has a substantial criminal record – crimes include crimes of violence against persons – significant lapse in time since violent crimes were committed – risk of recidivism in this case was outweighed by substantial evidence of rehabilitation – general deterrence is an important factor that must be given significant weight but it is seldom regarded as decisive – evidence of rehabilitation and reform in this case was so comprehensive as to largely negate community protection and expectations as factors supporting visa cancellation – best interests of the child considered – interests of the children and other considerations favoured reinstatement of the applicant’s visa - decision under review set aside.
RELEVANT ACT/S:
Migration Act 1958: ss 500(6B), 501, 501(2)(a) and (b), 501(6)(a) and (c), 501(7), 501G(1)
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
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608
Rauhina v The Queen [2002] WASCA 91
Re Tumanako and Minister for Immigration and Multicultural Affairs [2006] AATA 848
Re Iskander and Minister for Immigration and Multicultural Affairs [2002] AATA 226
Re Sam and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003
Re Agafili and Minister for Immigration and Multicultural Affairs [2001] AATA 91
REASONS FOR DECISION
25 May 2007 Professor GD Walker, Deputy President Summary
1. The applicant Peter Douglas Rauhina seeks review of a decision made on 12 May 2005 but possibly not received by the applicant until 28 February 2007. The decision was to cancel the applicant’s TY 444 visa on the ground that he did not satisfy the character test as set out in s 501 of the Migration Act 1958 (the Act).
2. At the hearing, the applicant was represented by Mr DC Rangiah, and the respondent was represented by Mr G Johnson. The documents before the tribunal comprised the documents produced pursuant to s 501G of the Act (“the G documents”), taken into evidence as Exhibit A1, together with the other documents tendered by the parties at the hearing. The applicant gave oral evidence in person, as did four other witnesses. The remaining three witnesses gave evidence via telephone link.
Relevant Law and Policy
3. 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:
…
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 in subsection (7); or
…
(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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4. “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;
…
5. 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 the 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.
6. 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
7. The applicant was born in New Zealand on 28 January 1971 and is currently aged 36. He is a New Zealand citizen. He first entered Australia on 20 April 1997 and has returned to New Zealand only once, for a holiday in 1999-2000.
8. The applicant last arrived in Australia on 10 January 2000 and was granted a TY 444 visa, which was his sole authority to remain in Australia.
9. Before coming to Australia the applicant met Ms Stacey Catherine Murray and entered into a de facto relationship with her, which has endured so far for 14 years. They have two children, Pierre aged 12 and Lakisha aged 10, both of whom were born in New Zealand. They plan to marry in March 2008.
10. The applicant lived for several years in Western Australia, where he accumulated the following convictions:
Court
Date
Offence
Sentence
South Hedland Court of Petty Sessions
14 February 2000
Possess Prohibited Drug
$100
Possess Smoking Implement
$100
26 June 2000
Breach of Violence Restraining Order
$300
11 August 2000
Assault Common
6 mths CBO (Adult)
Damage
$100
Dangerous Driving – First Offence
$300
South Hedland District Court
23 October 2001
Assault Occasioning Bodily harm
9 mths imp conc
Attempt to Defeat/Pervert Course Justice
3 yrs imp
Burglary W/Intent Aggravated (Habitation)
3 yrs imp
Robbery
3 yrs imp conc Total: 6 yrs imp
11. On 23 February 2005, the respondent notified the applicant of her intention to consider cancelling the applicant’s visa under s 501(2) of the Act. A delegate of the minister decided on 12 May 2005 to cancel the visa.
12. The application to his tribunal, made on 5 March 2007, states that the applicant received that decision on 28 February 2007. The respondent considers that he cannot show that the applicant was given a written notice as required by s 501G(1) of the Act before 28 February 2007. In the circumstances, the respondent does not contend that the statutory time limit in s 500(6B) operates to exclude the tribunal’s jurisdiction in this matter.
The applicant’s evidence
13. The applicant tendered an affidavit (Exhibit A8) and gave oral evidence at the hearing. He said that he and Stacey had initially moved to Australia in 1997 because Stacey’s family had already come here and had indicated that they were going to settle in this country. While in New Zealand, he had not been able to find a great deal of employment and had mainly worked as a sheep shearer, from the age of 16 until he came to Australia.
14. Initially, they stayed in Queensland with Stacey’s parents, but after about nine months moved to Western Australia because the applicant’s brother had told him there was a great deal of work available in the mining industry. The applicant obtained a position in Port Hedland as a trade assistant but was interested in scaffolding and rigging and asked to be allowed to work in that field.
15. While in jail following his convictions he undertook an anger management course that made him aware of how serious his crime had been. It had taken him awhile to understand it but he is now ashamed of his actions and greatly regrets them. He has now learned to control himself.
16. Although sentenced to six years’ imprisonment, he was released on work release after 18 months, six months earlier than had originally had been directed. By that time Stacey had taken the children to Queensland to be near her parents who were living in Brisbane, and also because she thought that there would be more opportunities for the children there than in a mining town like Port Hedland. The relationship had also come under strain because of the applicant’s behaviour prior to his conviction. The applicant had been frequenting hotels and clubs too much, and drinking to excess. Stacey agreed to have him back, however, and he moved to Queensland to rejoin the family. He was able to arrange for his parole to be transferred from Western Australia to Queensland for that purpose.
17. Initially Stacey’s parents found him work for a couple of months as a form worker, but then he began working with Peter Knox, who was establishing his own rigging and scaffolding business. Since then he has been employed full-time with Mr Knox’s company, Sunshine Coast Crane & Rigging Specialists Pty Limited. While with that company, he has successfully completed training courses in individual site safety inductions, company work policy, company ethics and employee responsibilities, Manatu (a small crane) operation, fire safety and confined space breathing apparatus training. In addition, he has obtained a number of trade tickets while living in Australia, including basic scaffolding, dogmen, forklift driver, elevated work platform and first aid.
18. He has bought a house, for which he paid about $270,000, and has repayments of $450 a week to the mortgagee, the National Australia Bank.
19. The applicant’s father is deceased and his mother, who is in poor health, lives in New Zealand. His twin brother, who formerly lived in Queensland, has returned to New Zealand.
20. The applicant states that most of his time is now spent at work. He seldom goes to hotels, bars or nightclubs. He tries to take his children to all activities where his work permits. He believes that if he had to return to New Zealand he could not take his children with him, as Stacey would not come to New Zealand. She would also bear a great deal of the financial burden for the house repayments and as he does not think she would be able to maintain them they would probably lose their home. His children are doing well at school and receive additional tuition every week in relation to mathematics and English, the applicant believing that they are important subjects to master in life. He thinks it would be better for them to remain in Australia for the sake of their education, but also because he does not want them to be exposed to the kind of life he had when he was brought up. All they know is Australia, but in New Zealand how well you do depends on where you are from, and he is from a small town. Asked if his children could do well in one of New Zealand’s larger cities, he replied that it would be a struggle.
21. In addition to Stacey and the children, he has quite a large extended family, some of whom are in Australia and some in New Zealand. He does not appear to have close or frequent contact with any of them.
Supporting witnesses
22. Ms Stacey Murray in her affidavit (Exhibit A9) and in oral evidence stated that she and the children were approved last month for Australian citizenship. She and the applicant plan to be married in March 2008, and made the necessary bookings for that purpose at the beginning of this year.
23. The applicant’s imprisonment in Western Australia was a “traumatic” period in her life. At that time she had debts to pay, two children to care for and needed to find employment. She also forced to move from house to house, boarding with friends, as she could not afford her own accommodation. As she had no family support in Western Australia, she decided to move to Queensland to be closer to her family, and thought it was important to do so for the children’s upbringing. At that time the applicant’s parole conditions did not allow him to move to Queensland, but subsequently he was given permission and rejoined the family.
24. Ms Murray stated that if the applicant is required to return to New Zealand, she would not move to New Zealand with him, though that would cause her great emotional hardship. The children have lived in Australia for most of their lives, their grandparents are here and they lack the Maori cultural background that they would need in New Zealand. The employment opportunities are also better in Australia. The children are very close to Ms Murray’s parents and her sister, who live in a neighbouring suburb.
25. She has found it very difficult to cope with looking after the two children on her own. Apart from the practical difficulties of caring for and supporting the needs of the two children, there are many issues she needs to raise with the applicant in relation to their futures, challenges that face them as parents and challenges that affect the children. She relied on him greatly in that regard and does not know how much longer she could cope with caring for the two children without his influence and support.
26. If the applicant were to be removed to New Zealand it would be very difficult to organise their lives around the children’s schoolwork commitments and in light of budgetary constraints. Consequently, she believes that the children’s contact with their father would be almost non-existent, because of the financial difficulty in travelling to New Zealand. She did not think it would be practicable for him to work in New Zealand and send enough money back to Australia to keep up the mortgage payments, given the currency difference.
27. Ms Murray is certain that he will never re-offend. She considers him a changed and improved man and has not since had any problems in her relationship with him.
28. Mr Peter Knox first met the applicant when they were members of rival football teams in the Pilbara where Mr Knox was employed as a staff maintainer by Rio Tinto Mining and the applicant was working for Rio Tinto as a contractor.
29. In 2002, Mr Knox started his own crane and rigging company in Queensland. Shortly after the applicant moved from Western Australia, Mr Knox offered him a position as a full-time scaffolder and rigger. The company had a difficult first year but lately has been grossing close to $1,000,000 per annum. “I believe none of this would have been possible without the loyalty and hard work of Peter which he gave selflessly to myself and to my company” (Exhibit A10). He is concerned that the business will suffer if the applicant cannot rejoin it. “I have already suffered financially from a job that Peter was running at the time when he was taken into detention in New South Wales”. There are also numerous aspects of the job that are only known to the applicant, and some tasks have had to be interrupted, at considerable financial loss to the company. There are only about 24 good riggers working in south-east Queensland and they tend to keep moving from one employer to another. The applicant has stayed with Mr Knox from the outset, however, and Mr Knox greatly values his loyalty.
30. Mr Knox believes that the applicant has learned greatly from his time in prison and from the emotional and financial hardship his family had to endure. He does not believe Mr Rauhina will re-offend in the future. “I believe that Peter has made many positive changes to his life since moving to Queensland and reinvented himself into someone who has the ability to achieve whatever the highest goals he may set for himself”.
31. At the hearing, Mr Knox explained that he relies on the applicant to carry out the current phase of a job if Mr Knox himself cannot be there. He will finish it even if he has to stay there until 7:30 pm. Mr Knox does not appoint foremen or leading hands as such, because he does not like to place one of his workers above the others. Nevertheless, the applicant is such a good and reliable worker that he can leave him in charge of a job with complete confidence. “Everyone gives excuses why things are not done. Peter never gives excuses, he just gets the job done”.
32. Mr Knox is so keen to have the applicant return to the company that he is still paying him and meeting his mortgage repayments while he is in detention. When working full-time (and the applicant is often required to work seven days a week), a rigger can earn between $2,000 and $2,500 per week.
33. Mrs Bernadette Knox, wife of Peter Knox, works for her husband’s company, where she is in charge of the accounts. She has known the applicant and his family since about 1999 and has found him to be a loyal, honest and trustworthy friend. Her children, and especially her youngest son, are close to him.
34. Mrs Knox says that the applicant’s work ethic is of the highest standard. He works hard and has great skill, and has made himself an asset to the company. The other employees look up to him for his knowledge and skill, and he has become a positive role model for some of the younger employees.
35. She regards the applicant and his family as part of her own extended family and would greatly miss him if he were removed from Australia. She believes it would also have a detrimental effect on him and on his family.
36. Fully aware of the applicant’s criminal history, she believes he has been greatly affected and has learned from his conviction and sentence. When they were in the Pilbara, he was “quite fiery and a bit aggressive”, she said, but he completed an anger management course while in jail and is a completely different person and devoted to his family. He went in one person and came out another, she said.
37. Oral and written (Exhibit A12) evidence was also given by Mr Kenneth Heap, aged 45, who works as a rigger for Precision Crane Hire. He has known the applicant for about five years and is aware of his convictions.
38. Mr Heap has worked with the applicant on several jobs lasting for up to two months. He believes the applicant to be an asset to the construction industry in Queensland and has always found him to be a reliable and hard worker. Mr Heap stressed that they are working in a dangerous industry, and it is reassuring for him to know that the men he is working with are competent, as the applicant is. He does not think there is any risk that the applicant will re-offend.
39. Mr Glen Stephenson, aged 33, has been employed as a rigger at Sunshine Coast Crane & Rigging for about two years. He has known the applicant for approximately four years and is aware of his criminal record.
40. Mr Stephenson began working with the applicant two and a half years ago and has always found him to be an essential part of the team who has always been willing to help with all aspects of the job. On many occasions they have worked away from home in circumstances requiring them to live together often for three weeks at a time. During those occasions, he has always found the applicant easy to get along with and someone who always commits himself to complete his share of the work.
41. Mr Stephenson also looks up to him for a number of other reasons, especially his strong commitment to his family and his great work ethic. “Everything he does is for his family”, Mr Stephenson said at the hearing. In all the time he has known the applicant he has never seen a bad side of him and does not think he will ever re-offend.
42. Mr Russell Williams, aged 43, is a building estimator with MC Property Developers Pty Limited and has worked in the construction industry for over 25 years. He has known the applicant for about three years and is aware of his criminal history.
43. Mr Williams has engaged Sunshine Coast Cranes & Rigging to do several large multi-million dollar commercial projects on the Sunshine Coast. He knows Peter Rauhina as the foreman of that company.
44. “I have nothing but the utmost praise and respect for Peter, as he has proved on countless occasions his level-headedness and professionalism under the most extremes of pressure. Not only did he meet strict deadlines for Sunshine Coast Cranes & Rigging Pty Limited, but he also worked in liaison with other trades to achieve project time constraints and deadlines” (Exhibit A14).
45. Mr Williams has also met the applicant and his family socially on occasion. He believes the offending behaviour a “one-off event” and that there is no risk of his re-offending in the future. He could not speak more highly of the applicant as a levelheaded professional. Without him jobs would not be done on time.
46. An affidavit by Lynn Murray, Stacey Murray’s mother, was also tendered (Exhibit A3). Mrs Murray has known the applicant for about 15 years, even before he came to Australia. She said that while the applicant was in custody in Western Australia, her daughter was “an emotional and physical wreck, as she did not cope well without the financial and emotional support of Peter”. Although fully aware of his criminal convictions, she has a high opinion of the applicant and believes there is no risk that he will re-offend. “The impact on his family and his previous jail term was so great that I do not think he will place her (sic) family at risk again”.
47. Michael Murray, Stacey’s father, also swore an affidavit (Exhibit A4), which is to a similar effect as his wife’s affidavit.
48. Mrs Michelle O’Donnell in her affidavit (Exhibit A5) states that she met the applicant two years ago as a result of her children attending the same school as the applicants’. Her daughter Ashley is good friends with the applicant’s daughter Lakisha. She has attended a number of social functions with the applicant’s family and has always found him to be pleasant, polite and extremely competent, not only with his children, but with hers. She has allowed her daughter Ashley to stay at the applicant’s house overnight at least half a dozen times. “As a parent, I can say this is not something I can take lightly and I consider Peter trustworthy enough to take care of my children. Peter’s daughter, Lakisha, has also stayed at my place a number of times. I have always found her to be a polite person”. Having known the applicant for two years now, she believes there is little risk that he will re-offend.
49. Mr Ian West, director of Arana Steel states (Exhibit A7) that he has had many interactions with the applicant over the past three years and knows him as the leading hand or foreman of Sunshine Coast Crane & Rigging. He is aware of the applicant’s criminal convictions.
50. Mr West also speaks highly of the applicant:
…
I know Peter to be a well organised and extremely helpful co-ordinator on some very large projects that we have been involved in together. His knowledge and problem solving skills have got us out of many large situations that sometimes arise in our industry. I believe Peter is an asset to our industry and to our nation. His past offending behaviour is not something I see as re-occurring” (Exhibit A7).
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Psychiatric evidence
51. Dr F Ian Curtis prepared a detailed report dated 3 May 2007 (Exhibit A15). The report concludes that the applicant does not suffer from any mental illness or personality disorder, though he does show symptoms of a generalised anxiety and reactive depression to a mild degree, as a result of the circumstances of his detention. He felt strongly that he wanted his children to complete an education that was better than his was and he considered that impossible within the indigenous New Zealand community at his previous social level there. He had not engaged in any offending behaviour during the last five or more consecutive years, except that when he was detained in February 2007, he was found to have in his possession half a gram of cannabis for his own use. He would be a highly vulnerable man if separated from his family.
52. Dr Curtis found the family unit impressively engaging and well socialised. Stacey has a more organised mind and a more measured social presentation of herself than the applicant does, but the applicant himself is a man of above average intelligence. He is physically strong with a manifest work ethic proven by past behaviour.
53. Stacey sees the lack of opportunity for the formal education and safe development of adolescent indigenous people as absolutely prohibiting the movement of the family back to New Zealand.
54. Dr Curtis thought it unlikely that the applicant would re-offend, and on the contrary thought that his pattern, on the basis of past performance, is one of personal growth, community affiliations and personal connectedness to family, extended family and to a manifestly applied work ethic.
55. At the hearing, Dr Curtis stressed that the clear bond between the applicant and his family said something positive about him. His children are well cared for, polite and impressive. This can be viewed as a projection of his inner world and reinforces the picture of him as a persistent worker who is striving to make the most of himself.
56. His early offending could be traced to his disordered and deprived upbringing in what Dr Curtis termed the Maori Northlands of New Zealand. Although no-one’s upbringing is perfect, and we all have underlying levels of suffering from which we learn, the applicant’s upbringing and education had suffered badly. In that area bush cannabis grows wild, and its use disturbs adolescent minds badly. But when he was sent to a foster home, he was placed with a shearing family where his strong work ethic was developed. That had helped him to modify his attitudes and behaviour following his conviction and there was no sign of a pattern of careerist criminal development. If the family moved to New Zealand, they would return to a bad environment. Their lives are at present built on networking and support systems and they would there be at a disadvantage, especially the children.
Application of the Law and Findings of Fact
57. As was stated above, the first issue for me to decide is whether, pursuant to s 501(6)(c)(i) and (ii), the applicant passes the character test having regard to his past and present general conduct. 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…
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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).
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58. 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.
59. In relation to s 501(6)(c)(ii), the person’s past and present general conduct, paragraph 1.9 of Direction No 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test. Of relevance in the present case are paragraphs 1.9(a), 1.9(b) and 1.9(c), which direct the decision-maker to consider whether the non-citizen has been involved in activities indicating a contempt or disregard for the law (paragraph 1.9(a)), or has, in connection with any application for the grant of a visa or any kind of government benefit made a false or misleading statement (paragraph 1.9(b)), or has ever made a false or misleading declaration on an approved form about the non-citizen’s character or conduct or both (paragraph 1.9(c)).
60. Paragraph 1.11 of Direction No 21 states that general conduct also includes recent good conduct which may be an indication that the non-citizen’s character may have reformed.
61. In this case the applicant concedes that he does not pass the character test because of his “substantial criminal record” within s 501(7).
62. 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:
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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.
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63. Paragraph 2.3 sets out the primary considerations:
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In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
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Paragraph 2.4 explains:
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The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community.
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64. 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.
65. 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 2.5(c), general deterrence, “aims to deter other people from committing the same or similar offence”.
Protection of the Australian Community
66. The first issue to be discussed under this heading is the seriousness and nature of the conduct. It is necessary to apply Direction No 21, which was made pursuant to s 499 of the Act. The direction, which is binding on this tribunal, states in paragraph 2.6(f) that crimes of violence against persons are to be treated as very serious. In this case, the applicant was convicted in October 2001 of assault occasioning actual bodily harm, burglary, robbery, and attempting to defeat the course of justice, resulting in a sentence to a total of six years’ imprisonment. That in itself would suffice to warrant treating his conduct as very serious but, in addition, he received in 2000 a number of other convictions, including for common assault and dangerous driving.
67. The most serious convictions are those received in 2001. As regards those, the applicant and Stacey Murray have always maintained as a mitigating factor that the events arose out of a dispute between friends. It is indeed the case, as Jackson DCJ noted (G p24), that it was not the victim, Lonny Mathews, who informed the police, but Mr Mathews’s employer, perhaps as a result of a friendship with a police sergeant. The police then attended Mr Mathews’s home and were told what had occurred. The applicant was then charged.
68. Be that as it may, the attack was a brutal and sustained one and the attempt to defeat the course of justice was grave and premeditated. Although in any event the tribunal is bound by the court’s convictions and findings, I respectfully agree with the comments and decisions of His Honour and of the Western Australian Court of Criminal Appeal (Rauhina v The Queen [2002] WASCA 91).
69. The next issue for the tribunal to consider is the risk of recidivism. The respondent submits that the fact of having a criminal record in itself shows that there is some risk that the applicant will re-offend. Dr Curtis had agreed that in stressful circumstances, someone with the applicant’s background could commit more offences. In Re Tumanako and Minister for Immigration and Multicultural Affairs [2006] AATA 848, at para 66, the tribunal had assessed the applicant’s risk of re-offending as low to moderate but had nevertheless affirmed the decision on the basis of other factors. Deputy President Estcourt QC had reached a similar conclusion in Re Iskander and Minister for Immigration and Multicultural Affairs [2002] AATA 226 at para 22.
70. On behalf of the applicant, however, Mr Rangiah pointed out that it had been over six years since the applicant committed the violent offences, which was enough time for any new offences to surface if they were going to. As Dr Curtis had concluded, the 2001 episode was a one-off incident, not part of a regular pattern. The other witnesses who had observed his conduct in the workplace and in social settings had seen no sign of risk. There had been significant changes in his lifestyle and personality, as observed by Stacey Murray and by Mrs Knox. His time in jail had exerted a powerful deterrent effect and had led to his rehabilitation. He had undertaken an anger management course and cognitive skills courses, had been a model parolee and had made a fresh start in Queensland. His work record was admirable.
71. A record such as the applicant’s would indeed suggest a significant risk of recidivism in the absence of substantial evidence of rehabilitation. There is such evidence in this case. Dr Curtis’s analysis provides a conceptual basis for a hypothesis that the applicant may have reformed. Even more cogent is the evidence of Mr Knox, supported by that of Mrs Knox, which shows the applicant as a thoroughly reliable and competent worker who gets jobs done without making excuses and who can be left in charge of a site when Mr Knox cannot be there personally. The applicant helped Mr Knox to establish what is now a successful business and is foreman of the team in all except name. The company has not had any workplace accidents since it was established, and while that must partly reflect creditably on Mr Knox and the others member of the team, the fact that the applicant is foreman of the group, which works on major projects in a dangerous industry says much about his commitment and sense of responsibility, as does the fact that he has completed many skills courses relevant to his work. Other witnesses resoundingly support Mr Knox’s assessment, paying tribute to his dependability and to his ability as a problem-solver when difficulties arise on large projects.
72. The evidence of those who have known him in social settings is equally supportive. All speak well of his courtesy, helpfulness and total devotion to his family. As Mr Stephenson commented, “everything he does is for his family”.
73. The only blemish on his recent record is that in February 2007 he was found with half a gram of cannabis in his possession. I will return to that matter later, but it does not effect my conclusion that there is substantial and cogent evidence that the applicant is a comprehensively rehabilitated man.
74. 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 applicant said little about that factor, and it is true that 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. 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. Mr Johnson pointed out that Jackson DCJ had specifically mentioned the importance of deterrence in relation to the offence of attempting to defeat the course of justice. The importance of deterrence had also been commented on in Re Sam and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003, at para 31. The deterrent effect of the decision in this case was of special importance given the applicant’s background, Mr Johnson said, as there are many New Zealand citizens living in Australia.
75. While general deterrence is undoubtedly an important factor that must be given significant weight, it is seldom regarded as decisive, and in the present case I think its importance is offset by the evidence of rehabilitation just outlined.
Expectations of the Australian Community
76. 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.
…
77. 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). 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).
78. In my view the community expects that the migration program will be administered in such a manner as to favour those who obey the law rather than those who seek to subvert it. This application, like all such cases, must be decided on its own facts. On the evidence in the present case I consider that community expectations would be substantially influenced by the radical change in the applicant’s attitudes and values following his conviction and imprisonment in 2001. The evidence shows that the applicant’s rehabilitation and reform are complete and that he has become a valued and productive member of Australian society. This is not a case where a psychologist and supportive friends and family members argue that an applicant has taken some steps towards rehabilitation and that he has the potential to progress in that direction. In this case the evidence establishes that he has actually achieved that goal. In the circumstances I do not think that the community would object to the reinstatement of his visa.
The Best Interests of the Child
79. 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 consideration, 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 which 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)).
80. All the evidence shows that the applicant’s family is a fully functioning unit and that the children are well cared for, well-adjusted and making progress. It is plainly in their interests that they should be able to live with both their parents. Their mother, however, appears to have made up her mind not to return to New Zealand with the children if the applicant is removed, because she thinks that if they return to live in the environment from which the family came, their education and upbringing would suffer. The applicant is of the same mind.
81. All the family members are New Zealand citizens (although Stacey and the children have been accepted for Australian citizenship) and there is no obstacle to their returning to New Zealand together if they wish. Even if one accepts, as Dr Curtis says, that the Maori Northlands may not be an ideal place for the children to grow up, the evidence shows no reason why the family could not settle in some other part of New Zealand. The applicant has work skills that are likely to be in demand anywhere that construction is taking place. There is no evidence to show, nor any reason to suspect, that the level of education available to the children in New Zealand would be inferior to that which they are currently enjoying in Queensland. There would be no language problem and the children are young enough to adapt to any differences in curriculum. Further, as Deputy President Chappell noted in Re Agafili and Minister for Immigration and Multicultural Affairs [2001] AATA 91, at para 91,
… it should be remembered that New Zealand is a neighbouring country with very similar social, cultural and related values to that of Australia and with a well-developed welfare system which could assist the Agafili family in appropriate circumstances.
…
82. While the children’s lives and education would be temporarily disturbed if the family had to return to live in New Zealand, the welfare of the children is only a marginal factor weighing against visa cancellation in this case.
Other considerations
83. 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.
84. While more members of the applicant’s extended family are living in New Zealand than in Australia, Stacey Murray has a strong preference for remaining in Australia because her parents and her sister, with whom she is close and who help her with her children, are living near them in Queensland. Her grandparents are in New Zealand and her family in Queensland would be able to visit her without great difficulty if she were to return there. The evidence from Stacey’s mother and from Dr Curtis about the severe effect that affirming the decision would have on her is predicated on her remaining in Australia and would become irrelevant if she were to accompany the applicant back to New Zealand. Overall, however, given the intensity of her wish to remain with the children and her close family in Queensland, it is plain that Stacey Murray would suffer hardship if the applicant were removed to New Zealand.
85. Mr Knox’s business would suffer from the loss of a loyal key employee fulfilling a supervisory function, but the evidence does not show that there is anything to prevent Mr Knox from seeking to recruit one of the 23 other well-qualified riggers in south-east Queensland. But again, it is plain from the fact that Mr Knox is continuing to pay the applicant and to meet his mortgage repayments while he is in detention that the business relationship between them is more of a functional partnership than a simple relationship of employer and employee. I think Mr Knox would suffer some economic hardship if the applicant were removed, and that he would also lose a long-standing friend.
86. The evidence relating to rehabilitation has been set out above. On balance, therefore, the other considerations favour reinstatement of the applicant’s visa in this case.
87. I therefore conclude that the evidence of rehabilitation and reform in this case is so clear, comprehensive and cogent as largely to negate community protection and expectations as factors supporting visa cancellation. Consequently, the interests of the children and the other considerations lead to the result that the decision under review should be set aside.
88. I must, however, refer to the reservation expressed earlier about the fact that a small amount of marijuana was found in the applicant’s possession in February 2007. Dr Curtis, who is familiar with the New Zealand Maori Northlands, mentioned that the ready availability of bush cannabis in the area where the applicant grew up was a factor in his subsequent criminal behaviour. The applicant should be warned that any future law breaking, including violations of the law prohibiting the use of cannabis, may lead to renewed consideration of visa cancellation. The applicant is under an obligation to obey all the laws in force in Queensland, and does not have the option of disregarding those he finds inconvenient. Purchasing illegal drugs puts a user in touch with criminal elements, and those contacts can lead to further problems with the law. Further, he has children entering adolescence and, as Dr Curtis explained, the use of cannabis “disturbs adolescent minds badly”. Any departure from the law by him in this respect would also be an extremely poor example to set for the two children. After the tremendous progress he has made it would be folly to jeopardise everything in that way.
89. The decision under review should be set aside and the matter remitted to the respondent for reconsideration on the basis that the discretion be exercised in favour of not cancelling the applicant’s visa.
I certify that the 89 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: 14 and 15 May 2007
Date of Decision: 25 May 2007
Solicitor for the Applicant: Mr K Jahnke, Ryan & Bosscher Lawyers
Counsel for the Applicant: Mr DC Rangiah
Solicitor for the Respondent: Mr G Johnson, DLA Phillips Fox
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