Re Aporo and Minister for Immigration and Citizenship
[2008] AATA 629
•18 July 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 629
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/3675
GENERAL ADMINISTRATIVE DIVISION )
Re Mita Taupopoki George APORO
Applicant
AndMinister for Immigration and Citizenship
Respondent
DECISION
TribunalProfessor GD Walker, Deputy President
Date18 July 2008
PlaceSydney
DecisionThe decision under review is affirmed.
………………[sgd]…………………...
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION – visa ex – character test conceded – whether discretion should be exercised to cancel the applicant’s visa – applicant has substantial criminal record – community protection and expectations considered – best interests of the children considered – other considerations outweighed by the considerations of community protection and expectations – decision under review is affirmed.
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RELEVANT ACT/S:
Migration Act 1958: ss 201, 500, 501, 501G
CITATIONS
Aporo v Minister for Immigration and Citizenship [2008] FCA 102
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Stevanovic and Minister for Immigration and Citizenship [2007] AATA 1427
Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56
Al-Kateb v Godwin (2004) 219 CLR 562
Robtelmes v Brenan (1906) 4 CLR 395
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608
Re Agafili and Minister for Immigration and Multicultural Affairs [2001] AATA 91
Re Takau and Minister for Immigration and Citizenship [2007] AATA 1575
Re Kelly and Minister for Immigration and Citizenship [2007] AATA 1678
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OTHER AUTHORITIES
Direction No 21
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REASONS FOR DECISION
18 July 2008
Professor GD Walker, Deputy President
Basic facts
1. The applicant Mr Mita Taupopoki George Aporo was born in New Zealand in 1973 and is a citizen of that country. He is now aged 35 and is unmarried.
2. The applicant first arrived in Australia on 23 December 1983 but returned to New Zealand a month later and spent most of the ensuing five years there. He arrived in Australia to live permanently with his mother in March 1989 at the age of 16. Since then he has returned to New Zealand several times, usually for periods of a week or two.
3. On 1 September 1994, he became the holder of a transitional special category visa (subclass TY444).
4. The applicant has a long criminal history in Australia, commencing with a conviction for an assault occasioning actual bodily harm committed in November 1989, for which he received a bond in February 1991.
5. On 15 March 1999, he was convicted in the District Court of New South Wales of two counts of assault and one count of assaulting an officer in the execution of duty, and one count of intimidating a witness. On appeal, he was sentenced to two years' imprisonment with a non-parole period of one year and six months (G p103).
6. He was convicted at Manly Local Court on 11 March 2005 on two counts of assault occasioning actual bodily harm and one count of common assault, being sentenced to 12 months' imprisonment with a nine-month non-parole period (G p101).
7. On 12 March 2007 at Central Local Court, he was convicted of seven counts of shoplifting and was sentenced to 12 months' imprisonment with a non-parole period of nine months, commencing from 20 June 2006 (G p99). He was released from Silverwater Correctional Centre on 19 March 2007.
8. Until the present matter, the applicant had not been warned about the possibility of deportation under s 201 of the Migration Act 1958 (Cth) (the Act) or visa cancelation under s 501 on the grounds of character. A delegate of the Minister for Immigration and Citizenship decided on 12 July 2007 to cancel his visa on the basis that he did not pass the character test. The applicant subsequently received notice of that decision. On 26 July 2007 he was accordingly detained by the department and has been at Villawood Detention Centre since then.
9. The applicant applied for review of the minister’s decision to cancel his visa under s 501 of the Act on 3 August 2007.
10. On 18 October 2007, this tribunal affirmed that decision. The applicant appealed to the Federal Court, which on 11 February 2008 made orders in the nature of certiorari and mandamus quashing the decision and remitting the proceedings to the tribunal (Aporo v Minister for Immigration and Citizenship [2008] FCA 102 (Rares J)).
11. At the hearing on remittal on 1 July 2008, the applicant relied on the statements used in the original tribunal hearing and on the transcript of that hearing (ts1). The applicant and his half-brother Kamaloni Joshua Sassen gave oral evidence in person and the applicant tendered an additional statement dated 19 June 2008 (Exhibit A10).
12. At the hearing, the applicant was represented by Mr Geoffrey Kennett of counsel, instructed by Mr Howard Murdoch of Parish Patience, while Ms Tessa van Duyn of Clayton Utz represented the respondent. The documents before the tribunal comprised the documents produced pursuant to s 501G of the Act (“the G documents”), taken into evidence as Exhibit A11, together with the other documents tendered by the parties at the hearing and at the original hearing.
Issue
13. As the applicant conceded that he did not pass the character test in s 501(6)(a) of the Act because of his substantial criminal record as defined in s 501(7) of the Act, the only issue for decision is whether the tribunal should exercise its discretion to set aside or affirm the decision made by the delegate of the minister to cancel the applicant’s visa, applying ministerial Direction No 21.
Relevant law and policy
14. Under s 501(2) of the Act, the Minister may cancel a visa if the holder does not satisfy the Minister that the person passes the character test (s 501(2)(a) and (b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant grounds in the current matter are paragraphs (a) and (c), as follows:
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For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7); or
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(c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct;
(ii) the person’s past and present general conduct;
the person is not of good character; …
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15. “Substantial criminal record “ is defined in s 501(7)
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(7)For the purposes of the character test, a person has a substantial criminal record if:
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(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more;
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16. Under s 499(1) of the Act, the Minister may give written directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. That includes this tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.
17. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
The applicant’s evidence
18. At the hearing the applicant adopted his statements of 2 October 2007 (Exhibit A6) and 19 June 2008 (Exhibit A10). In the earlier statement, he outlined his childhood in New Zealand where he was raised mainly by his grandparents and often spent school holidays with his uncle and aunt on their farm. He was close to his grandmother but during the holidays was badly treated by his aunt.
19. He was educated in New Zealand where he enjoyed high school because of the many sporting opportunities. He was a great athlete and played in all the school competitions. He travelled to Australia a couple of times to see his mother while he was still in school and when he was 16, moved to Australia permanently to live with his mother. “I got into a lot of trouble here in Australia. I was young and I did some very stupid things. I went into juvenile detention for assaulting security guards. I did six months in juvenile detention … I felt like this was a turning point in my life. I realised that I had done some very stupid things and I wanted to get my life under control and not make the same mistakes”.
20. After release from juvenile detention he began to play football with Manly rugby league. He accumulated many fines during that period and had to go to prison to pay them off.
21. He subsequently trained as a kick boxer and earned money through fighting, but that simply made him aggressive. He was charged with assault in 1997 and was sentenced to six months in prison. His daughter Marsini was born while he was in jail. It was during that prison term that he was introduced to heroin. After his release he resumed kickboxing but soon returned to prison in 1998 and again in 2002. He began an anger management course but was unable to complete it because he was released some two or three months after the course began. After his release in 2003, he became dependent on drugs.
22. Some time in 2004, he moved to Melbourne to live with his girlfriend. After she left to work in Greece he became heavily dependent on drugs.
23. Most of his family live in Australia, including his half-brother Kamaloni Sassen, with whom he keeps in contact. When not in prison he would occasionally visit his house and have dinner with him and his family.
24. His current partner Alexandria Kara (Karageorgis) lives in Melbourne. They have had an ongoing relationship over the past four years despite being apart. When he was not in jail they would see each other fortnightly. They have had to live apart because her mother is sick and she needs to stay with her to take care of her.
25. He believes that if he returned to New Zealand he would be on his own as he has no family there. He has had no contact with his brother James since their father died in 2006.
26. In his later statement (Exhibit A10) he said that since being detained at Villawood he had avoided prohibited drugs and substitutes for the last 12 months (actually eight months (second hearing transcript (ts2) p17)) and had attended courses on the effects of the drugs on behaviour. He had also completed an anger management course.
27. He stated that his drug habit that had commenced in 2003, had been gradually conquered from mid-2005 until mid-2007 through methadone. After being taken to Villawood he took no further medication or other drugs.
28. Before being detained he had regular contact, usually monthly, with his daughter and since being at Villawood he has had regular weekly telephone contact with her. Her mother has agreed to help maintain a normal father-daughter relationship, but her husband is discouraging such contact.
29. His mother lives in Sydney and has regular contact with extended family members. He has an ongoing five-year relationship with Alexandria, whose mother is currently chronically sick. He has a close relationship with his half-brother and his immediate family and has formed a deep affection and bond with his three children, “having the role of an over-indulgent and supportive uncle in an extended family environment”.
30. In his oral evidence in chief, he said that before he was detained he had not been seeing his daughter regularly. Although her mother had come around to the idea, her step-father needed to be more comfortable with it. There had been no contact at all for some time. He had seen her about twice before being detained and at present there is no telephone contact because of her step-father’s attitude. His daughter could remain in telephone contact with him if he were in New Zealand, but it was possible she could forget about him.
31. He is very close to his half-brother Josh, who looks up to him as an elder brother. He speaks with him on the telephone and with the children and they visited him twice at Villawood. He gave the children’s names as Amelia (aged 18 months), Wadi (aged 8 years) and Sassia (aged 11 – although according to her father she is nine). He did not know their dates of birth.
32. He had not held many jobs other than being a footballer and kick boxer, as he had needed to fit the other work around his training, although he had no problem finding employment.
33. In New Zealand, however, he knew no-one who could get him a job. He speaks to his brother on the telephone, but not on a daily basis. His brother is a bishop in the Church of Latter-day Saints (Mormon), almost on a full-time basis, and also operates a mail run. He would not know where to start to find employment in New Zealand and was afraid of the unknown, but was sure that there would be something.
34. He said his criminal history began when he was 15 and appeared on eight assault charges. Now however, he avoids fight situations and is a totally different person. He cannot comprehend how he became a drug addict after September 2003.
35. In relation to his convictions for crimes of violence, he said that at the time when he became known as a kick boxer and footballer, he gained respect for the first time because of the “stupid things” he did, such as committing assaults (ts2, p12). He was thought “cool” for being involved in fights and his name circulated around the Northern Beaches. The nightclubs, however, had him “marked” and were “out to get me” (ts2, p13).
36. Asked about the assault on Senior Constable Purcell for which he was sentenced on 15 March 1999, he said the incident occurred at a time when his name was still known and commanded respect (ts2, p13). A doorman at the Ivanhoe Hotel, Manly, asked him to leave and struck him. The applicant had not realised that the police had arrived and when the officer seized him from behind, the applicant head-butted him, not realising who he was. He desisted immediately when he saw it was a police officer. When it was pointed out to him that Judge English had found that he had not desisted even when loaded into a police truck, he initially admitted it, explaining that the officer had punched him first, then denied it and said he had not spat blood at the officer, but was simply bleeding from the blow inflicted on him (ts2, p14).
37. His conviction for stealing in 2007 occurred because at that stage he was an addict. But he had used subutex to overcome his addiction for some two and a half years before entering Villawood.
38. He denied that he had relapsed in the course of his rehabilitation treatment, but when reminded that in his 17 March 2006 pre-sentence report, his probation officer Mr Ross Murdoch had said that he needed money to pay for a ticket to New Zealand because he had spent all his funds on buying heroin (G p148), he admitted that he had relapsed for a period of five weeks because of a tragedy in which his “sister-in-law” (actually his cousin’s wife) had been murdered. He had not used drugs of any kind, including subutex, for eight months. He planned to undertake a five-week drug and alcohol course at the Phoenix Centre in Manly, but had not yet made any arrangements for it.
39. He said he had challenged Mr Murdoch's May 2007 assessment that he was at high risk of re-offending, saying that it contradicted the rest of the report.
40. He had changed over the last 12 months because he had looked hard at himself and had decided that enough was enough. He had succeeded at parole, whereas previously he had not. He was willing to talk about his problems without blaming anyone. He was prepared to accept his past and take it on himself.
41. He had not had any contact with his daughter Marsini since shortly before he was detained, but has spoken to her. Reminded that he had previously said he had not talked with Marsini but with her mother Loretta, he agreed that was true. Loretta had contacted him because Marsini needed her true father’s consent before being baptised into the Church of Latter-day Saints. That was when she found out the applicant was her father, although before that some of her cousins had given her to understand that was the case.
42. Despite the Family Court order in 1998, contact with Marsini ceased after about 18 months because her mother was opposed to any contact with him as a result of a dispute with his mother (ts2, pp30-31). It was still the case that he had no contact with her.
43. Asked to explain the claim in his second statement (Exhibit A10) that while at Villawood he had been in “regular weekly phone contact” with her and “attempted to address her many enquiries about me”, he said that he actually speaks to her mother and then just says hello to his daughter (ts2, pp5, 21, 23). She does not call him dad (ts2, p23).
44. Before his detention he had been seeing Alexandria every three months. She lived with him in Sydney for a couple of weeks and also in Melbourne in 2003. She travelled to Greece in 2003 for nine months and then returned. They now speak daily on the telephone and she is aware of the current proceedings (ts2, p25). She was formerly a fashion model but is not currently working. They plan to get married and settle down in Sydney. She would not move to New Zealand because of her mother (ts2, p26).
45. His ambition was to be a personal trainer. Asked if he could pursue that calling in New Zealand, he said he could not, as he knew Australia better. It was more beneficial for him to be here and not to run away. If he were thrown out without warning, it would probably destroy him (ts2, pp26-27).
46. Since 1989 he had returned to New Zealand periodically, especially when he had the kick boxing title and he would travel there to promote himself.
47. His attention was then drawn to the passage in the 2006 pre-sentence report in which Mr Murdoch recorded that he “needed to return to his broader family and native country in order to continue his rehabilitation” (G p148). He denied that was the case, saying there was nothing there to help with his rehabilitation, and he had returned only in order to see his cousin. At first he said there is no Narcotics Anonymous (NA) in New Zealand, then said Auckland had only one NA centre.
48. His cousin is still in New Zealand and is currently serving a long prison sentence. He has three children, aged 10, eight and two. The applicant would not contact his brother James about employment opportunities because they are “different”. They talk on the telephone but that is all, they follow their own ways (ts2, p30).
49. In re-examination he explained that contact with his daughter had ceased because his mother had fallen out with Marsini’s mother, who made it very hard for him to see his daughter and was very angry with him for a long time. Relations are better now and it is more possible to have access to Marsini.
50. Asked again about his reported plans in 2006 to return to New Zealand to continue his rehabilitation, he denied that he had planned to return there to live, but simply to have time away from the situation he was in (ts2, p32). The death of his sister-in-law had a great deal to do with it. He wanted to be there for his cousin in his loss (he had just murdered his wife (ts2, p33)). He regarded his cousin as a brother and his wife was like a sister. He had returned to support his cousin’s children and for her funeral.
Evidence of the applicant’s supporting witness
51. The applicant’s half-brother Kamaloni Joshua Sassen in his oral evidence adopted his statement from the earlier proceedings (Exhibit A5). In it he stated that he is in a de facto relationship with a high school teacher and is employed in home duties, taking care of their two daughters and son.
52. The applicant had always been like a father-figure to him and had shown compassion and love to all of his three children. They hold him in high esteem and he has tried to be a role model for them in their presence.
53. He would like his children to know their uncle. Formerly he would endeavour to see them at least every fortnight and they were delighted whenever he could visit.
54. Mr Sassen is an Australian citizen, as is his mother and the applicant’s daughter.
55. At the hearing Mr Sassen said he used to see the applicant regularly before he was detained. He would see the children every week and they frequently ask where he has been for the last 14 months. He is very loyal to the family. At present they are in telephone contact every two weeks and on those occasions the applicant speaks to the children.
Other evidence
56. A statutory declaration by Lucy Sassen Tui (Exhibit A4), the applicant’s mother, after giving some family background, explained that after his arrival in Australia the applicant did not receive any schooling. He had some learning difficulties that were later found to stem from dyslexia.
57. He played football for Manly leagues club professionally from the age of 15 until he was 21 and was also a professional kick boxer and had great potential.
58. He had always been a very supportive son, giving her moral and financial support over the years, and had been a supportive uncle to Kamaloni's children. He would visit them every fortnight and they were always happy to see him.
59. She believes it would be sad if the applicant were not here for his daughter Marsini, who has a right to know who her father is and a right to her father’s love, support, guidance and care. She believes the family would be greatly affected if he were sent back to New Zealand. He is currently dealing with his drug dependence and is on a methadone program. He has also sought counselling. She believes that if he is surrounded by the right people and receives support and assistance, he will be able to improve his life.
60. A letter from the applicant’s former de facto, Loretta Maseki, dated October 2007 (Exhibit A8) states that her daughter, aged 10 (she is now 11) is her eldest child. She is of an age where she has begun to enquire about her real father.
61. Two years ago, before Marsini was baptised, she told Marsini that the applicant was her real father. Until that point she had been under the impression that Loretta's husband was her father.
62. Over the last few months she had been asking about him. As her mother she feels it is very important for Marsini to know her real father and to form a meaningful bond with him.
63. Marsini now has four step-brothers and sisters. Ms Maseki concluded:
… Until now Marsini has been unable to see her real father. …
… I believe it would be in Marsini’s very best interest if she was able to meet her real father, spend time with him and get to know him as her real father, preferably beginning in the near future since she is of an appropriate age to do so.
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Psychologist’s report
64. Dr Gary K Banks, a consultant clinical psychologist, prepared a report dated 1 October 2007 for the original hearing (Exhibit A1). He conducted a number of standardised psychological tests in conjunction with an extensive clinical interview.
65. The results indicated that the applicant recognises and acknowledges important problems in his life and perceives a need for help in dealing with them. He appears more motivated for treatment than adults who are not being seen in a therapeutic setting and is a suitable candidate for treatment, especially in areas of substance abuse and anger management, and that would likely decrease the possibility of recidivism. He should be considered for relatively intense rehabilitative drug treatment, such as a residential therapeutic community, which should be of at least six to 12 months duration.
66. In Dr Banks’s view there is reason to suggest that he would return to his anti-social behaviours should his visa be refused and he be sent back to New Zealand.
67. The scores suggest the presence of disorganised thinking and unusual problems in dealing with reality. His poor impulse control, lack of social support and feelings of hopelessness all contribute to a risk of suicide or self-harm.
68. He was unable to provide any evidence of regular contact with his daughter, but there is reason to believe there is a bond between them. He explained that it is hard for him to see his daughter as her mother’s husband does not like him seeing Marsini. The fact that the applicant was not more active in seeking contact with his daughter may not be so much an indication of poor parenting but rather consistent with his personality characteristic and history of dysfunctional and disturbed familial upbringing, such that he has little idea of the requirements of how to be an appropriate father-figure.
69. His personality is disorganised and socially isolated. His discomfort in social interactions probably serves as a formidable obstacle to the development of close relationships. His low capacity to verbally express himself, and low self-esteem, would make seeking contact with his daughter an extremely difficult task. Dr Banks had not reviewed Marsini but thought it possible that his removal could be potentially traumatic for her.
70. Apparently the applicant said he has a fiancée, Ms Alexandria Kara, living in Melbourne. “Despite the distance between them, Ms Kara appears to be the main source of support for Mr Aporo” (p6). His removal could have detrimental effects on her.
71. Dr Banks concluded that the applicant presented as an individual who recognises the need for change. Although he has an extensive history with probation and parole, proper treatment addressing his offending behaviour has apparently begun only recently. He might not have the emotional and cognitive capacity to prevent himself from re-offending should he be returned to New Zealand.
72. Dr Banks did not, however, attempt to estimate the risk of recidivism should the applicant remain in Australia.
Applicant’s submissions
73. Mr Kennett described the applicant’s treatment of his history as honest and self-aware. There were some inconsistencies in the dates and details he had given, but that did not imply dishonesty as it had to be borne in mind that he is dyslexic (Exhibit A1, pp5-6).
74. He had been convicted of offences of violence, but they fell well short of the others in paragraph 2.6 of Direction No 21 in seriousness. The Court of Criminal Appeal did not think his record represented either the worst case or even the worst offender, or both (G p165). They were in the main ordinary assaults of the kind with which the police must deal on any Saturday night.
75. Mr Murdoch and Dr Banks had outlined his attempts to renounce drugs. He had completed an anger management course while in immigration detention and had ceased drug use, including prescribed substitutes. He has reflected on his life and behaviour so far and has no convictions for acts of violence since 2003. He has turned the corner and grown up. The prospect of visa cancelation, of which he had not previously been warned, had greatly concerned him and the prospect of losing his family would be a great deterrent for him in the future. The risk of re-offending had to be viewed in the light of the above.
76. Any considerations of general deterrence could only be speculative as his offences had been on the spur of the moment and not premeditated. In such circumstances, deterrence would not be effective, but a specific warning about visa cancellation would be. General deterrence should thus receive no weight or very little.
77. It was hard to understand how the expectations of the Australian community could be brought to bear in the tribunal’s decision. The question is whether the community would expect the minister to take action, and the onus if anything would be on the respondent. Community members would be concerned by his record of violence but would consider his upbringing in New Zealand and his experiences in Australia. They would expect that he would be warned and that he should be given a chance to show that he merits trust.
78. The Federal Court had made it clear that consideration of the best interests of the child were not confined to parental relationships. The applicant has close relationships with his nieces and nephew and supports their main carer, his half-brother Josh. He had no contact with his daughter for a period, but a relationship is developing despite substantial difficulties caused by her step-father’s opposition. She needs to be in contact with her father if she is to navigate adolescence smoothly. This consideration does not necessarily trump all others, but commands considerable weight.
79. The interests of the children weigh against cancellation. It would not be the end of the world for them because of modern communications and the possibility of visits, but he could not play the same role if he were in New Zealand. There would be little chance of direct contact with his daughter or to be a role model for her.
80. As regards other considerations, he would be separated from his mother and other relatives. As he is not close to his brother in New Zealand, that relationship would provide no impetus for rehabilitation or good behaviour. His risk of recidivism in New Zealand would be significantly greater.
81. The fact that his fiancée had long been aware of his criminal history would inevitably lessen the weight to be given to any hardship that might be occasioned to her. Their relationship would suffer, however, as he could not ask her to join him in New Zealand because of her mother’s sickness.
82. As regards rehabilitation, he had complied with his most recent parole conditions, quit drugs and undertaken rehabilitation courses. He should have been warned before steps were taken to cancel his visa.
83. While this was not an extreme case like Re Stevanovic and Minister for Immigration and Citizenship [2007] AATA 1427, where the applicant had spent a very long time in Australia, as the applicant here had returned to New Zealand several times, he had nevertheless lived in Australia for an extended period. The decision should be set aside.
84. The applicant did not pursue the arguments based on Australia's other international obligations that had been pressed at the original hearing.
Application of the Law and Findings of Fact
85. In this case the applicant concedes that he does not pass the character test because of his “substantial criminal record” within s 501(7).
86. I must therefore consider whether to exercise my discretion under s 501(2) to decide whether 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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87. 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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88. 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.
89. With regard to paragraph 2.5(b), likelihood that the conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.11, general deterrence, “aims to deter other people from committing the same or a similar offence”.
Protection of the Australian Community
90. 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 on 15 March 1999 of threatening a person with the intent of influencing a witness to a serious offence and sentenced to four years' imprisonment, divided into minimum and additional terms of two years and six months and 18 months respectively. On the same occasion he was sentenced to 12 months' imprisonment for assaulting an officer in the execution of his duty.
91. On appeal the sentence for threatening a witness was reduced on 23 February 2000 to one year and six months. In the Court of Criminal Appeal, Grove J said (G p164): “It has to be said that the applicant’s record reveals him to be something of a thug”.
92. His most recent assault conviction was confirmed on 7 July 2005 when he was sentenced in lieu at Manly District Court to 12 months' imprisonment for assault occasioning actual bodily harm.
93. Direction No 21 indicates that the sentence imposed for a crime is an indication also of the seriousness of the offender’s conduct. Decision-makers are also to have regard to the extent of the person’s criminal record, including the number and nature of offences, the time between offences, and the time that has elapsed since the most recent offence (para 2.7).
94. As Mr Kennett pointed out, the applicant’s offences are not of the very worst kind by comparison with the others listed in paragraph 2.6, but they are nevertheless serious. Further, the applicant has received custodial sentences for offences of violence on seven separate occasions between 1990 and 2003. He has been sentenced for offences of dishonesty on four occasions between 2002 and 2006. Starting from 1995, he has been convicted seven times of possessing or administering a prohibited drug. His offences include five convictions for assault occasioning actual bodily harm and one for maliciously inflicting grievous bodily harm. He has three convictions for resisting arrest or resisting an officer in the execution of duty, one for affray and nine for assault, as well as one for malicious damage.
95. The applicant submitted that most of his assaults were merely the kind of incident with which the police deal every Saturday night, but some indication of their seriousness can be gained from the fact that two of the convictions for simple or common assault resulted in sentences to three months' imprisonment each, while another was for four months and three others for six months each.
96. The applicant made no submissions about, or reference to, his record for driving-related offences, but there is a long list involving repeated disqualifications and sentences on three separate occasions to terms of imprisonment or of six months or seven months. He came within five months of qualifying for visa cancellation on the basis of his driving convictions alone. A person with such a driving record is someone from whom the community needs protection.
97. The applicant’s record dates from 1989 in children’s court, and almost immediately upon his taking up permanent residence in Australia. Hardly a year has passed when he has not been before the courts on one or more criminal charges. He has spent approximately four years in prison. His most recent conviction was in March 2007, when a sentence of 12 months' imprisonment was imposed. He accumulated numerous punishments for offences while in custody, including multiple instances of intimidation and fighting (G pp110-112).
98. The applicant was released from prison in March 2007. He has not offended since then (but has been in detention since July 2007). To date his conduct reveals a pattern of continual offences, some violent, some drug-related, some property offences and numerous traffic offences. His record discloses a pattern of disregard for law generally of an almost habitual nature.
99. The tribunal is also to take into account any relevant factors provided by the applicant as mitigating factors (para 2.8(a)). They should be viewed in the context of the applicant’s entire record (Green v Minister for Immigration and Citizenship [2008] FCA 125 [25]-[26]).
100. In mitigation it was submitted that Grove J’s comment in the Court of Criminal Appeal that his record does not represent “either the worst case or the worst offender” (G p165) should be applied to his whole record. His last conviction for an offence of violence was in 2003, but since then he has spent substantial periods in custody or detention. Further, his conviction of intimidation while in prison in December 2006 provides no reassurance that his aggressive tendencies are under control.
101. At the previous hearing he advanced as mitigating factors his dyslexia, his drug dependence and his early family background. Of his dyslexia there is no doubt and it must have disadvantaged him. It is not clear whether drug dependency constitutes a mitigating factor, although it could have a bearing on the risk of recidivism if the addiction has been overcome.
102. His evidence was that he became addicted to heroin in 2003, although his drug convictions in fact date from 1995 and he began using heroin in 1997. The drug problem may well have been a factor in his property offences but may have little bearing on his record of violence (ts2, p9), which he attributes in large part to the fact that his training in kick boxing made him more aggressive. As regards his childhood, I take it into account but note that neither his mother nor his half-brother supports his claims, nor in fact do they mention any childhood problems he may have had at all.
103. In light of all the evidence I conclude that his criminal record is very serious.
104. The next issue for the tribunal to consider is the risk of recidivism. As President Mathews J said, “Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending” (Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56 at [51]). The direction states that the person’s total criminal history, including the existence of several previous convictions in Australia, is highly relevant to assessing the likelihood of a new offence and the risk of recidivism.
105. The applicant's long record of offences has been outlined above. Even in 2000, Grove J in the Court of Criminal Appeal described the applicant as “a person meeting the description of a recidivist” (G p164).
106. The applicant stressed that since being detained in Villawood he has ceased using drugs and their prescribed substitutes such as subutex for over eight months. He has completed an anger management course, having previously been unable to finish such a course by reason of being released from custody. He has had no convictions for violence since 2003, has turned the corner and grown up.
107. Relevant to this question are the pre-sentence reports prepared in May 2002 and March 2006, and the report for the Department of Immigration and Citizenship dated 29 May 2007. In 2006 Mr Ross Murdoch, a parole officer who dealt with the applicant over an extended period (ts2, p15), reported that previously his response to supervision had generally been acceptable but that during his most recent period of parole supervision in late 2005, he appeared initially to be unstable and was at significant risk from his heroin addiction. He complied with directions to attend counselling and a methadone program and appeared to have made significant progress when his parole expired in November 2005. He relapsed into heroin use in December 2005, however, but during the interview said he was willing to continue on the methadone program and attend counselling, but was not prepared to attend a long-term residential rehabilitation program. The probation and parole officer concluded that a lengthy period of supervision might assist him to continue his attempts to rehabilitate and recover from drug addiction, adding that “the offender is suitable for a high level of intervention by this Service, commensurate with the assessed risk” (G p148).
108. Following reassessment in May 2007, Mr Murdoch assessed the applicant as presenting a high risk of re-offending, key factors being the high number of previous offences, drug dependency and poor employment history. The applicant was, however, looking at long-term residential rehabilitation services, but he would be required to reduce and abstain from bupremorphine in order to enter such a program. He had been willing to discuss frankly his concerns about his future and challenges and discussions with his mother suggested that he was currently stable and making some effort to grapple with his drug problem (G p145).
109. As was noted above, the applicant says he has not used subutex or other prescribed substitutes for the past eight months and that he intends to enrol in a drug rehabilitation program at the Phoenix Centre in Manly, although he has not yet made any arrangements to do so (ts2, p18).
110. Dr Banks considered that if he received treatment for substance abuse and anger management, the risk of recidivism would be reduced, and that he should participate in a residential drug treatment program of at least six to 12 months duration. At that time (October 2007), he appeared to recognise the need for change, but proper treatment had apparently begun only recently.
111. He has, however, come to similar realisations before. The six months he spent in juvenile detention in 1989 “was a turning point in my life. I realised that I had done some very stupid things and I wanted to get my life under control and not make the same mistakes” (Exhibit A6, para 17). Similarly, in 1996 he said he had become more cautious and knew right from wrong (ts2, p13). Yet in both cases he went on to re-offend.
112. In a telephone interview in June 2007, he is quoted as saying that:
I feel that if I return [to New Zealand] in addition to losing my loved ones that I will most likely end up joining a gang, to feel like I have someone, and will probably get in trouble with the Law (G p128).
113. That is not an observation one would expect to hear from someone who is rehabilitated.
114. The applicant also has a tendency to deny the seriousness of his offences, exemplified by his account of his assault on Senior Constable Purcell (para 36 above), which conflicts starkly with English J’s sentencing remarks. The facts as found (and his conduct was videotaped) show that the officer asked the applicant for identification before the applicant punched another man and the officer restrained him. He struggled, resisted and spat after being handcuffed and had to be subdued twice (presumably with capsicum spray) before he could be embarked in the police van. At the station, police called an ambulance to treat his injuries but he threatened to assault the paramedics too. He could not be interviewed because of the danger of further assaults on police (G pp155-157). The judge said his “simply dreadful conduct” “calls for severe punishment” (G p158) (although one of her Honour’s sentences was reduced on appeal). This tendency to minimise his past criminal conduct also conflicts with his claim to be reformed and “a different person” (ts2, p9).
115. In May 2007 Mr Murdoch assessed the applicant as presenting a high risk of re-offending. The applicant disputed that estimate, pointing out that at Villawood he was classified as moderate to high risk (whether that relates to security risk or recidivism risk is not clear). As has successfully completed an anger management course and has been abstaining from drugs and substitutes, I would accept the Villawood assessment (assuming the applicant has stated it correctly). Given his past record, however, that is still a significant risk.
116. The applicant has a supportive family in Australia, but their presence has not to date significantly influenced his offending behaviour. As he has previously relapsed from drug treatment, his present abstention in the controlled environment of Villawood provides no guarantee that he will not relapse in the future, especially if exposed to stressful life circumstances. The applicant argues that the present cancellation proceedings have provided a powerful warning of a kind that he has not previously received. Yet the numerous bonds, fines and sentences of imprisonment he has received over the years have had little perceptible deterrent effect on his pattern of offending. One cannot be confident that these proceedings would have a radically different impact. The recidivism risk appears to be moderate to high.
117. 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.
118. While visa cancellation is not intended as a punishment, the direction plainly contemplates that the prospect of it will operate to deter similar conduct in much the same way as the threat of punishment does.
119. As Callinan J observed in Al-Kateb v Godwin (2004) 219 CLR 562 at 659, “Deterrence may be an end in itself unrelated to a criminal sanction or a punishment. Deterrence can, for example, be an end of the law of tort”.
120. The applicant’s submissions on this point were really directed more to specific than to general deterrence. While the general deterrent effect of a particular decision is impossible to prove in advance, each one may contribute to placing other visa holders on notice that there is no place in Australia for conduct demonstrating such a pattern of unacceptable anti-social behaviour. General deterrence cannot be a substantial basis for a decision on an application of this kind, but it should be taken into account as a relevant factor.
Expectations of the Australian Community
121. 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.
…
122. In Al-Kateb, Hayne J observed that in one of its earliest decisions (Robtelmes v Brenan (1906) 4 CLR 395), the High Court had held that it is an attribute of sovereignty that every nation state is entitled to decide what aliens shall or shall not become members of its community (219 CLR at page 632).
123. Callinan J added that entering aliens are taken to know and accept “as a term of admission” that restraint to the extent necessary to enable deportation can be imposed on them (at p658).
124. At the same time, there is an expectation in the community that migration law will be administered fairly and humanely (Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at [34]). A further limiting factor is that one should attribute to the community knowledge of the whole of the evidence before the tribunal (Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458, at para 7(m)).
125. The applicant submitted that if anything the onus was on the respondent to show why the community would expect to take action against a visa holder in these circumstances. While they would be concerned by his record and his convictions for crimes of violence, they would consider his upbringing in New Zealand and his experiences in Australia. They would expect that he would be given a warning and a second chance to show that he merits trust. Such an approach had been taken by Member Fice in Stevanovic at paras 48-50.
126. Stevanovic, however, was an extreme case. The applicant was a Serbian citizen who had been born in France and came to Australia at the age of two. He had not left Australia since and had spent 39 years here. He had no knowledge of Serbia or of its language.
127. In the present case the applicant came to live in Australia at the age of 16 and has returned to New Zealand several times. He would face no language problems or significant cultural adjustments in New Zealand and indeed at the previous hearing told the tribunal that he would like to make movies about Maori culture (at para 36).
128. As Ms van Duyn pointed out, over a 17-year criminal history the applicant has had numerous chances to rehabilitate but has repeatedly re-offended. The community would expect that the visa of a person with such a serious and sustained criminal record, is assessed at being of moderate to high risk of re-offending and who shows little sustained evidence of rehabilitation should be cancelled.
The Best Interests of the Child
129. The third primary consideration is the best interests of the child. The tribunal is guided on this question by the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In Wan at paragraph 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa and, second, “to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration”. I also note paragraph 2.16 of Direction No 21, which sets out considerations that the decision-maker must take into consideration when considering the best interests of a child including the duration of the relationship between the non-citizen and the child and the length of any separation and reasons for that separation (paragraph 2.16(b)).
130. Following the first hearing, the learned Senior Member noted that the applicant's evidence of his relationship with his daughter “was slightly confusing and at times contradictory” (at para 31).
131. The same was true at the second hearing, and in light of all the evidence. In relation to direct contact with Marsini, he took the following positions:
(a)In his statutory declaration for the second hearing, he stated that “Before being placed in detention I had regular contact, usually monthly with my daughter … . This regular pattern of contact with my daughter included my time in gaol” (Exhibit A10, para 4). He repeated that assertion in his examination-in-chief at the second hearing (ts2, p5). In a telephone interview on 1 July 2007, he said “I see my daughter about once every three months” (G p126).
(b)On the other hand, he told the first hearing that he had not seen her for 18 months (para 31) and at the second hearing said he had had no contact with her since she was a baby (para 42 above). In examination-in-chief at the second hearing he said he had not been seeing his daughter regularly before he had been detained and there had been no contact at all for a time (ts2, p5). In cross-examination he indicated that he had not had any contact with her since she was a baby and that such was still the case (ts2, pp22, 23).
(c)His statutory declaration for the first hearing (Exhibit A6) makes no reference to any contact with his daughter, whether direct or by telephone.
132. As regards telephone contact, he took at least the following positions:
(a)In his statutory declaration for the second hearing, he stated that “Since being at the detention facility I have been in regular weekly phone contact with my eleven (11) year-old daughter (born 11/05/1997) and attempted to address her many enquiries about me” (Exhibit A10, para 6).
(b)In his telephone interview of 1 June 2007, he said, “I do speak to my daughter on the phone approximately twice per week, she calls me and tells me how she is going in school etc” (G p126).
(c)In cross-examination at the second hearing he said he had spoken to Marsini while he was at Villawood (ts2, p21).
(d)On the other hand, at the first hearing he denied that he had said he spoke with her twice weekly (first decision at para 31).
(e)In examination-in-chief he said there was no telephone contact at present, because of her step-father’s objections (ts2, p5).
(f)In cross-examination he agreed that he had not actually spoken to Marsini, but to her mother, but would just say hello to Marsini (ts2, p21).
133. One needs to refer to the written statement from Loretta Maseki, Marsini’s mother, in order to obtain a clearer picture (Exhibit A8). Ms Maseki states in October 2007:
… Until now Marsini has been unable to see her real father. She is not aware of Mita’s circumstances that he is in detention and facing the prospect of deportation. …
… I believe it would be in Marsini’s very best interest if she was able to meet her real father, … [emphasis added].
…
134. According to Marsini’s mother, therefore, Marsini has never met the applicant (except presumably when she was a baby, which she would not recall). There is also no reference to any telephone contact.
135. In his report Dr Banks noted that the applicant was unable to provide any evidence of having regular contact with Marsini (Exhibit A1, p5). His assumption that the applicant “visits her every three months” and that she speaks with him on the telephone twice a week (p6) is clearly based on false information that the applicant gave him.
136. Mr Kennett conceded that there were inconsistencies in the applicant’s evidence about his daughter but submitted that they could be attributed to his dyslexia. In the absence of expert evidence regarding that proposition, I am unable to see how dyslexia could affect his ability to remember whether he had met or conversed with his own daughter. His unsatisfactory evidence may be a reflection of what Dr Banks called his “disorganised thinking and unusual problems in dealing with reality” (Exhibit A1, p5), but his evidence plainly cannot be accepted as reliable.
137. In relation to the applicant’s relationship with his daughter, therefore, I find as follows:
(a)Since she was aged seven, Marsini has known that the applicant is her real father and she is curious about him;
(b)The applicant has not met her since she was a baby but may have seen her once or twice, without actually meeting her, at football matches (first decision, para 31);
(c)He has no telephone contact with Marsini but does communicate with her mother and may exchange greetings with Marsini after he has spoken with Loretta;
(d)He has played no part in her upbringing or development;
(e)Marsini is currently living in a stable and supportive home environment. There is no reason to doubt the suitability of her step-father, of whom the applicant himself speaks well: “He’s actually a good man, yes. He’s done you know extraordinary with my daughter …“ (ts1, p20). He does not, however, approve of Marsini having contact with the applicant. The applicant’s attempts at contacting his daughter may be placing Loretta's marriage under strain (Exhibit A8);
(f)There is no psychological report on Marsini and where her best interests lie. Dr Banks considered the possibility of harm to her interests, but said that they were only possible issues. In any event his opinion was based on false information given to him by the applicant. He did, however, say quite clearly that the applicant “has little idea of the requirements of how to be an appropriate father-figure” (Exhibit A1, p5). His psychological problems “would make seeking contact with his daughter an extremely difficult task” (Exhibit A1, p6).
138. I note that these conclusions are not inconsistent with those reached by the learned Senior Member at the original hearing (at para 81).
139. The evidence shows that at present the applicant does not have a close relationship with his daughter. The direction notes that “the hypothetical prospect for developing a better/stronger relationship in future … would normally be given relatively less weight than the proven history of the relationship based on past conduct” (para 2.16(b)).
140. Mr Kennett submitted that Marsini will need her father’s guidance to help her navigate through adolescence. While that would normally be true and the direction so presumes, the evidence does not suggest that such is the case in this instance. Marsini is currently living in a stable and supportive environment. Developing a closer relationship with an unstable, dysfunctional individual with a serious criminal record might well have more of a disruptive effect on her development than an enriching one. Her step-father's reservations on that account may not be entirely unreasonable.
141. Cancelling the applicant’s visa would do little more than preserve the status quo. The possibility of contact by telephone and other means of electronic communication would remain. The applicant conceded that Marsini could keep in contact by telephone if she wanted to, but was concerned that she might forget about him (ts2, p5). When Marsini is older, and presumably more mature, she could decide for herself whether she wished to visit the applicant in New Zealand.
142. In the meantime, I conclude that visa cancellation would not be contrary to Marsini’s best interests.
143. I accept that the applicant has a good avuncular relationship with his nieces Amelia and Sassia and his nephew Wadi. Before being taken into detention he saw them at his half-brother’s house, or his mother’s house, fairly regularly, perhaps once a fortnight.
144. The relationship may not be quite as close as he claims, however. He thought Sassia was aged 11, when according to her father she is 9. He did not know the children’s birthdays, and birthdays are important to children. If he were quite the “over-indulgent” uncle that he claims to be, one would expect him to be aware at least of the month in which the children’s birthdays fall. Nevertheless there is no reason to doubt that they are fond of him and would be sorry if he were removed from Australia.
145. The children are, however, living in a stable and loving family setting with both their genealogical parents, one of whom is their full-time carer.
146. Dr Banks in his report did not refer to the applicant’s relationship with his nieces and nephew, possibly because the applicant did not think to mention it. There is no psychological evidence in relation to them. Although the children would probably feel some disappointment at not being able to see their uncle in person, the evidence does not suggest that their welfare or development would be adversely affected. Moves by uncles, aunts and grandparents are a common childhood experience and are not normally regarded as traumatic.
147. During the extended periods he has spent in prison or detention, their direct contact with him has been limited.
148. I therefore find that the best interests of the children do not weigh against visa cancellation in this case.
Other considerations
149. 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.
150. The applicant has no business or similar ties to the Australian community, but his relations with his mother and half-brother would be impaired if his visa were cancelled. They have already been impaired, however, because of his periods of incarceration, and telephone and other electronic contact could continue if he were living in New Zealand.
151. The applicant said he has been in a continuing relationship of five years’ standing with Ms Alexandria Kara, who lives in Melbourne and is currently taking care of her ailing mother.
152. In his statutory declaration for the first hearing (Exhibit A6) he said that when he was not in prison they would see each other fortnightly (para 26). In his oral evidence, however, he said that before he was detained he saw her every three months (ts2, p25).
153. At the first hearing he denied that Ms Kara was his fiancée, saying that she was his girlfriend (ts1, p31). At the second hearing, however, he said that they planned “to get married and settle down here” and in submissions she was described as his fiancée. They could, of course, have become engaged in the interim.
154. In his June 2007 telephone interview he also said that they saw each other every two weeks, as she would come to Sydney to spend the weekend (G p125).
155. His half-brother did not mention any such relationship, nor did his mother, which is a little surprising as mothers usually take a keen interest in such matters.
156. It may be accepted that at some stage the applicant did have a relationship with Ms Kara. Whether it still subsists is another matter. At the hearing he said they spoke on the telephone daily (ts2, p25), and at the first hearing he said he had asked her to support his application before the tribunal (ts1, pp31-32).
157. Yet nowhere in the evidence is there any indication that she has provided information in connection with the application. She gave no evidence at either hearing and there is not a letter or a note of a telephone call from her anywhere in the documentary evidence. If they were engaged to be married, or even had less structured plans for the future together, one would have expected her to contribute some information and her views.
158. In his telephone interview the applicant himself seemed to speak about the relationship in the past tense. He described how she had visited him when he was on remand at Silverwater, which must have been some considerable time in the past, and then said “We also used to speak regularly on the phone … . She also used to write me letters” (G p125). Given his demonstrated propensity to fabricate evidence, not least about his personal relationships, his own evidence on the subject cannot be accepted as reliable.
159. On the preponderance of probabilities I find that there is no significant continuing relationship between the applicant and Ms Kara. Consequently no question of hardship arises in relation to her. Even if it did, it was not disputed that she has known about his criminal history for a long time, which would result in any hardship being given less weight.
160. There is some evidence of rehabilitation. He has ceased using drugs and has completed an anger management course. He has expressed regret for his criminal ways.
161. On the other hand, his parole officer Mr Murdoch thought he had a high recidivism risk. Dr Banks did not estimate the likelihood of the applicant re-offending but suggested strategies that might “decrease the possibility of recidivism”, including treatment in the areas of substance abuse and anger management. The latter course has been completed but the former has not.
162. He has previously ceased using drugs, only to relapse. He has by his own account experienced turning points in his life, but the same thing has happened. While he has expressed remorse, he displays no real understanding of the seriousness of his offences and seems to look back with lingering satisfaction at how his violent reputation inspired “respect” (ts2, p12). His prediction that if returned to New Zealand he would probably return to crime also does not suggest that he is rehabilitated.
163. The applicant has lived in Australia as a permanent resident since 1989, but his formative years were in New Zealand and he has returned there several times. He would face no language or cultural barriers to reintegration in society there. He told his parole officer in March 2006 that he had stolen money to pay for an air ticket to New Zealand because he “needed to return to his broader family and native country in order to continue his rehabilitation” (G p148). At the second hearing he denied making that statement. At the first hearing, however, he admitted saying it and in a rather convoluted answer also admitted that it did in fact reflect his plans at the time (ts1, p27). Mr Murdoch's contemporaneous record is to be preferred.
164. He said at the second hearing that New Zealand has nothing to offer to help his rehabilitation. He then said they do not have NA in New Zealand, then that there is only one NA centre in Auckland. Mr Kennett submitted that his evidence on that point was uncontradicted. For the reasons given above, I do not consider his evidence reliable. Further, the tribunal has always proceeded on the unchallenged basis that New Zealand’s health, education and welfare services are comparable with those in Australia: Re Agafili and Minister for Immigration and Multicultural Affairs [2001] AATA 91 at [91]; Re Takau and Minister for Immigration and Citizenship [2007] AATA 1575 at [72]; Re Kelly and Minister for Immigration and Citizenship [2007] AATA 1678 at [126]. The NA New Zealand website ( lists NA meetings every night of the week at 24 different Auckland locations.
165. While he has no particular work skills except as a kick boxer and professional footballer, he has in the past experienced no difficulty in finding other employment and thought that he would probably be able to find work in New Zealand. His present ambition is to work as a personal trainer and he could offer no cogent reason why he would be unable to enter that calling in New Zealand.
166. He said he would not seek to make use of his brother’s business or church contacts to find employment, but if so that would be his own choice. He has reasonably regular telephone contact with his brother and there is no evidence to suggest that James would refuse to help him in some appropriate way. There are thus no compassionate circumstances weighing against visa cancellation.
167. In light of all the evidence I therefore find that the other considerations are outweighed by the considerations of community protection and expectations. Unusually, in this instance, the best interests of the children are a neutral factor. The discretion should be exercised in favour of cancelling the applicant’s visa.
168. The decision under review is affirmed.
I certify that the 168 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: ……………………[sgd]…………………………..
Renee Wallace, Associate
Date/s of Hearing: 1 July 2008
Date of Decision: 18 July 2008
Solicitor for the Applicant: Mr H Murdoch, Parish Patience
Counsel for the Applicant: Mr G Kennett
Solicitor for the Respondent: Ms T van Duyn, Clayton Utz
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