Ruautu Tara and Minister for Immigration and Citizenship
[2013] AATA 157
•22 March 2013
[2013] AATA 157
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/5061
Re
Mikaera Ruautu Tara
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Deputy President RP Handley
Senior Member NP BellDate 22 March 2013 Place Sydney The decision under review is set aside and a decision substituted that the Minister’s discretion under s 501(2) of the Migration Act 1958 should not be exercised to cancel Mr Tara’s visa.
…………………[SGD]………………
Deputy President RP HandleyCATCHWORDS
IMMIGRATION – Visa cancellation – Direction No 55 – Character test – Substantial criminal record – Primary considerations – Other considerations
LEGISLATION
Migration Act 1958 (Cth)
CASES
Rosson v Minister for Immigration and Citizenship [2011] FCA 194
Ruautu Tara v Minister for Immigration and Citizenship [2012] FCA 1146
SECONDARY MATERIALS
Direction No. 55 – Visa refusal and cancellation under s 501
REASONS FOR DECISION
Deputy President RP Handley
Senior Member NP Bell22 March 2013
The Federal Court quashed the Tribunal’s previous decision in this matter and remitted it to the Tribunal to be decided again according to law: Ruautu Tara v Minister for Immigration and Citizenship [2012] FCA 1146. The proceedings concern Mr Ruautu Tara’s application to the Tribunal for the review of a decision of a delegate of the Minister for Immigration and Citizenship (the Minister) to cancel his visa on the ground that he does not pass the character test because of his substantial criminal record.
BACKGROUND
Mr Tara was born in the Cook Islands and is aged 39, the second of five children. He moved to New Zealand at the age of 20 and is a New Zealand citizen. He came to Australia for a holiday on 26 June 2007 and spent 10 days here, departing on 6 July 2007. He re-entered Australia on 29 February 2008 when he was granted a Class TY Subclass 444 Special Category (Temporary) visa enabling him to remain in Australia indefinitely while he continues to be New Zealand citizen. This was the category of visa he held at the time his visa was cancelled.
Mr Tara has four children, one of whom (a daughter) was born in 1999 when he was in a de facto relationship with Ms A. At the time of the birth of their daughter, Mr Tara and Ms A’s relationship had broken down and they were living apart, but they subsequently resumed their relationship in about 2003. During the period of about four years after their daughter’s birth and when Mr Tara and Ms A were living apart, Mr Tara did not see or have any contact with his daughter.
In February 2008, Ms A and their daughter, who are both New Zealand citizens, accompanied Mr Tara to Australia. Since moving to Australia, they have lived together except for the periods Mr Tara has been in custody or detention. Mr Tara’s three children from his previous relationship, who are aged 11, nine and six, live in New Zealand with their mother but he has had no contact with them for about eight years.
On 6 April 2010, Mr Tara was convicted of the offence of sexual assault (committed on 25 October 2009), to which he pleaded guilty, and sentenced to 12 months imprisonment. District Court Judge McGinness ordered that Mr Tara serve three months in prison, with the remainder of the sentence to be suspended for a further 12 months subject to his good behaviour. Mr Tara was discharged from prison on 5 July 2010 having served three months but was remanded in custody to face further charges of sexual assault and burglary in relation to an incident on 27 February 2010. He was released on bail on 24 November 2010 and ultimately acquitted of those charges on 17 February 2011.
On 3 June 2010, the Department of Immigration and Citizenship (the Department) sent Mr Tara a ‘Notice of Intention to Consider Cancellation’ of his visa, inviting him to respond. The Department sent him further letters, dated 4 June 2010 and 28 March 2011, enclosing additional information and inviting his response. On 29 June 2010, Mr Tara acknowledged receipt of the Notice and completed a ‘Personal Details Form’ in which he revealed that if he returned to New Zealand he would face “Fines – Drink Drive; Traffic Offences – possible prison time”. During examination-in-chief, he explained that he was involved in a traffic accident in 2007 and that the charges arising from that incident have not yet been finalised.
On 23 August 2011, a delegate of the Minister decided to cancel Mr Tara’s visa and a ‘Notice of Visa Cancellation’ with an accompanying Statement of Reasons was served on him on 23 October 2011, when he was detained and placed in immigration detention. He has been in immigration detention since then. On 24 November 2011, Mr Tara applied to the Tribunal for a review of the decision to cancel his visa. On 31 January 2012, the Tribunal conducted a hearing and, on 13 February 2012, published its decision affirming the decision to cancel Mr Tara’s visa.
Mr Tara appealed to the Federal Court. On 22 October 2012, Perram J found the Tribunal had made an error of law in its decision which he therefore quashed, remitting the matter to the Tribunal to be decided according to law. The error of law was the Tribunal’s reference in its decision to a sexual assault charge in respect of the alleged incident on 27 February 2010 (of which Mr Tara was ultimately acquitted on 17 February 2011) in association with a suggestion that Mr Tara had a propensity to commit sexual offences when drunk. His Honour found that the Tribunal had not allowed Mr Tara a proper opportunity to respond to the suggestion that he had a propensity to commit sexual assault after drinking.
RELEVANT LAW AND POLICY
Section 501(2) of the Migration Act provides that the Minister may cancel a visa if “the Minister reasonably suspects that the person does not pass the character test” and “the person does not satisfy the Minister that the person passes the character test”. Section 501(6)(a) provides that a person does not pass the character test if the person has a substantial criminal record. ‘Substantial criminal record’ is defined in s 501(7) as, among other things, having been sentenced to a term of imprisonment of 12 months or more, or sentenced to two or more terms of imprisonment where the total of those terms is two years or more.
On 6 April 2012, in the District Court of Queensland, Her Honour Judge McGinness, sentenced Mr Tara to 12 months imprisonment for sexually assaulting a 17 year old female. Thus, he does not pass the character test, and it was therefore open to the Minister to cancel Mr Tara’s visa. In exercising this discretion, the decision-maker must apply Direction [no. 55] - Visa refusal and cancellation under s 501 (Direction 55). Direction 55 requires the Tribunal to take into account primary considerations and other considerations relevant to the individual case.
The Preamble to Direction 55 sets out the Objectives of the Direction, General Guidance for decision-makers and the Principles that provide a framework within which decision-makers should approach their task. In the case of serious criminal or other misconduct, when determining the risk of future harm, the decision-maker should balance the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community (Section 2, paragraph 7(1)(b)). Paragraph 8(1) draws a distinction between the considerations to be taken into account by decision-makers in respect of visa holders and visa applicants, separating the considerations for these two groups. Separating these groups:
… recognises that persons holding a substantive visa will generally have an expectation that they will be permitted to stay in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
Paragraphs 9 and 10 of Direction 55 set out a number of ‘primary’ and ‘other’ considerations to which the decision-maker must have regard when considering whether to exercise the discretion to refuse or cancel a visa. The ‘primary’ considerations are set out in paragraph 9(1):
9. Primary considerations – visa holders
(1) In deciding whether to cancel a person’s visa, the following are primary considerations
(a) Protection of the Australian community from criminal or other serious conduct;
(b) The strength, duration and nature of the person’s ties to Australia;
(c) The best interests of minor children in Australia;
(d) Whether Australia has international non-refoulement obligations to the person.
The ‘other’ considerations, set out in paragraph 10(1) (see below), must be taken into account where relevant. Subparagraphs 8(4) and (5) state:
(4) Primary considerations should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.
PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
The Tribunal is required, when considering the protection of the Australian community, to give due consideration to the Government’s “Objectives”, “General Guidance”, and “Principles” set out in Section 1, paragraph 6 of Direction 55 under the heading ‘Preamble’. The ‘Principles’ referred to in paragraph 6.3, which provide a framework for decision-makers in approaching their task, include, relevantly, the following:
6.3(1) …Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) …
(4) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. ...
(5) …
(6) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1) of Direction 55 states that, informed by the principles in paragraph 6.3, a decision-maker:
a) …
b) is required to determine whether the risk of future harm by a non-citizen is unacceptable. This requires a balancing exercise, involving a consideration of the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community.
Paragraph 9.1 of Direction 55 states:
(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2)Decision-makers should also give consideration to:
a) The nature and seriousness of the person’s conduct to date; and
b) The risk to the Australian community should the person commit further offences or engage in other serious conduct.
The nature and seriousness of the conduct
Paragraph 9.1.1(1) of Direction 55 states relevantly:
(1) In considering the nature and seriousness of the person’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)The principle that crimes committed against vulnerable members of the community … are serious;
c)…
d)The principle that any conduct that forms the basis for a finding that a person does not pass the character test under s 501(6)(b) or (d), or is not of good character under s 501(6)(c), is considered to be serious;
e)The sentence imposed by the courts for a crime or crimes;
f)The frequency of the person’s offending and whether there is any trend of increasing seriousness;
…
Mr Tara pleaded guilty to and was convicted of the offence of sexual assault. In her sentencing remarks on 6 April 2010, Judge McGinness said:
… I understand that you experience now great shame for what you did to that young girl and her family. You were drunk at the time. You entered into the place where she was sleeping and where she was entitled to feel safe and secure. You went there in the middle of the night and you removed her pants and sexually assaulted her. She awoke, thinking it was her boyfriend, and, no doubt, would have been very distressed to find out that it was somebody different. She was only 17 years of age at the time and she called you “uncle” within your family situation.
No doubt, this has been a terrible strain on her and her family, as well as your own family and your de facto who is here in Court to support you today. I note you also have a 10 year-old child between you.
I have had regard to your personal background, the work that you were doing prior to your arrest and also the fact that you were willing to accept whatever punishment within your community they determined to hand out to you. I also have regard to the fact that this appears to have been an opportunistic offence, something that just happened because you were drunk, although that is, or course, no excuse. I also have regard to your cooperation with the police, your very early plea of guilty. You do have a criminal history, but nothing of a like nature.
Her Honour sentenced Mr Tara to 12 months imprisonment and ordered that after serving three months, he should be released into the community with the remaining nine months of his sentence suspended for 12 months subject to his good behaviour. As Mr Tara’s representative, Mr Poynder, pointed out, the offence of sexual assault carries a maximum penalty of 14 years imprisonment: Criminal Code (Qld), s 352(1)(a). While the Judge, on the one hand, recognised the serious nature of the offence Mr Tara committed against a vulnerable person, on the other hand, the sentence she imposed of 12 months imprisonment with a 3 month non-parole period, indicates that she regarded the offence to be at the lower end of the scale for such an offence. We accept this submission. The offence itself involved a form of touching and, while abhorrent, did not involve any violence, and Mr Tara ceased his conduct when told to do so.
Mr Tara said that on the day the incident took place, 25 September 2009, there was a big Cook Islands cultural gathering in Mareeba, where they were living, including a show during the afternoon and drinks afterwards, during which he had five or six cans of beer. (Mareeba is a town on the Atherton Tableland in Far North Queensland, 68 kms west of Cairns.) Mr Tara said he went home at one point during the evening, and when he found Ms A was not there, he went back to the cultural gathering. After half an hour, Ms A still had not reappeared, so he went to the house next door thinking she might be there. The door was open so he went in and it was then that the sexual assault took place. He said he was drunk at the time but what he did was wrong.
Mr Tara said he did not get a driving licence until he was about 32. Before then, he had three or four traffic convictions in New Zealand including for driving without a licence and drink driving, for which he was fined. None of the offences involved the use of drugs. Mr Tara said he told Dr Westmore (see below) that about three months before moving to Australia, he was involved in a traffic accident when he drove through a yellow light and crashed into another car. He and a “mate” had been at a touch football tournament and he had had a couple of drinks before driving home. Neither he nor his passenger was injured but the person in the other car was injured. He was charged with dangerous driving and driving under the influence of alcohol and attended court. Mr Tara said the matter was then set down for another court date after he left for Australia. However, this was after the date on which he and Ms A had already made plans to come to Australia.
Ms A, who gave evidence by telephone, was asked about these charges in cross-examination. She said she had accompanied Mr Tara when he went to court in relation to these charges and she thought they had been dealt with and were not outstanding. In re-examination, she said she thought the charge was dangerous driving and that Mr Tara had been fined and had to pay $70 per week.
For the Respondent to seek to rely on the admissions made by Mr Tara in his answers to a question on the Personal Details Form without inquiring from the New Zealand Police about any convictions, is less than satisfactory and did not assist the Tribunal. This is especially so in view of the fact that the Respondent has been in possession of the completed Personal Details Form since 29 June 2010. It was also clear to the Tribunal that Mr Tara sometimes had difficulty understanding questions put in cross-examination in the traditional “I put it to you” approach which was employed. While Mr Tara’s English is of a reasonable standard, and an interpreter was present to assist in the process of communication, the “I put it you” approach appeared to confuse Mr Tara at times. We are concerned that this form of questioning may lead to agreement with propositions and that such agreement may be misleading. That is not to say that people should not be made aware of submissions which will be made against them or of contended facts which will be relied on.
In the Tribunal’s view, in the absence of other evidence, very little weight should be given to Mr Tara’s evidence in relation to the New Zealand traffic matters, especially in view of Ms A’s evidence which contradicted Mr Tara’s evidence that there are outstanding traffic charges arising out of this incident.
Apart from what may be unresolved traffic charges and prior traffic convictions in New Zealand, Mr Tara has no other convictions.
The risk to the Australian community should the person commit further offences or engage in other serious conduct
Paragraph 9.1.2(1) states that, in considering whether a person represents an unacceptable risk of harm:
… decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. In making this assessment, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and
b)The likelihood of the person engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the person re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Mr Tara provided a letter in the original proceedings dated 9 January 2012. He expressed his shame and regret at his conduct, said he is very sorry for what he did and that he will never let it happen again. He stated that since coming out of prison, “I hardly drank alcohol because of what happen (sic)”.
Mr Tara said when he is drunk, he does not know what he is a doing. He has not been drunk since the night of the incident in October 2009 although he has drunk alcohol since then. Before the incident, he would only drink about once a week or once a fortnight – usually four of five cans of beer – and usually at home on his own. Mr Tara said he would like to do an alcohol and sexual offender rehabilitation program but no such courses were available to him during his three months in prison or when he was on remand. Similarly, he has been told that no such courses are available to him while in immigration detention. When the opportunity arose in Villawood Immigration Detention Centre, he said he would like to see a counsellor and he saw her up to twice a week or every two weeks for about 20 to 30 minutes from May/June 2012 until she left in January 2013. They talked about what is happening to him, about his drinking and other issues. Mr Tara said he has not drunk any alcohol for 17 or 18 months.
Mr Tara was also examined by Dr Bruce Westmore, Forensic Psychiatrist, for the purpose of these proceedings. In his report dated 31 January 2013, Dr Westmore said when he asked Mr Tara about whether he has stopped drinking, he said that “he may have one drink if he was asked to have a drink when at a cultural celebration”. Mr Tara told Dr Westmore that “when in New Zealand he smoked Cannabis, but he no longer uses illicit drugs”.
Dr Westmore said Mr Tara confirmed the comment made by the sentencing judge that Mr Tara felt great shame in relation to his behaviour that led to his sexual assault conviction.
Dr Westmore noted the episodic binge pattern of Mr Tara’s alcohol abuse, “currently in remission”. He said “there is no persistent historical evidence to support the diagnosis of an Antisocial Personality Disorder”. Dr Westmore noted that Mr Tara has not had an opportunity to attend an alcohol rehabilitation or sex offender’s course. With regard to the risk of Mr Tara reoffending, Dr Westmore said:
1. … Based on his history in a general sense, I think Mr Tara’s risks of re-offending in a sexual way are in the low range. This risk might increase should he abuse alcohol in the future. Without treatment, his risk of future alcohol abuse should be considered to be in the moderate range at least.
2. Mr Tara’s risk of committing other (non-sexual) offences is in the low to moderate range. Offences are more likely to be of a traffic type rather than any other type. Again his risks will increase if he returns to alcohol abuse.
Dr Westmore also gave oral evidence at the hearing. He was Director of Forensic Psychiatry for Queensland for many years and, while he has not worked in Queensland for 20 years, he has ongoing contacts in that State. He said in Queensland it is difficult if not impossible for prisoners to access rehabilitation treatment services while on remand and, during a three month sentence, a prisoner would have difficulty undertaking a sexual offender’s program because of its longer duration. It is possible that a drug and alcohol program might be available during such a sentence but this would depend on the resources available to the Queensland Department of Corrective Services. If a person is in the community, the chances of accessing a sexual offender’s program in a town such as Mareeba are probably “nil” but a city such as Cairns would, for example, have drug and alcohol programs.
Dr Westmore said that based on a lack of any sexual assault convictions either before or after Mr Tara’s conviction in April 2010, the risk of his re-offending is “low to non-existent” if alcohol is not present. Dr Westmore said that he had not asked Mr Tara if he had counselling in Villawood. The effect of any counselling would depend on its quality.
Dr Westmore said a history of episodic alcohol abuse does not equate with alcoholism. Alcohol is a problem for Mr Tara because it impairs his judgement and leads him to be anti-social. However, given that he only has one sexual offence conviction and there have been multiple occasions in the past when he has been intoxicated, this indicates that the correlation between alcohol use and sexual offending is low.
Mr Tara told the Tribunal that when he was released on bail on 24 November 2010 and until he was acquitted of the other sexual assault charge on 17 February 2011, he was subject to a 12 hour curfew from 7.00 pm in the evening until 5.00 am the next morning. He did not breach his bail conditions. We also note that when Mr Tara became aware that the Department wanted to interview him in relation to his immigration status, he contacted the Department and voluntarily submitted to being taken into immigration detention.
The Tribunal’s attention was drawn to an assessment of the risk of Mr Tara re-offending undertaken by the Queensland Department of Corrective Services on 9 April 2010. The risk was assessed at a score of one on a scale of one to 22, with 22 being the highest risk of re-offending. In other words, the risk of his re-offending was assessed to be very low.
In terms of support if Mr Tara is released into the community, Mr Tara intends to resume living with Ms A, their daughter and Ms A’s father in their rented house in Mareeba. Ms A has two brothers and their families who live close by and Mr Tara and Ms A’s evidence indicates that there is a small Cook Islands community there. Mr Tara said he hopes to return to his old job working at the chicken factory in Mareeba. The Tribunal has been provided with a letter faxed on 10 January 2012 from the ‘Operation Manager’ of the factory stating that Mr Tara was a reliable hard worker whom he would have no hesitation in re-employing, and also a letter dated 4 January 2012 from a ‘Team Leader’ at the same factory stating that Mr Tara is “a good honest and reliable worker”.
The Tribunal is satisfied both that Mr Tara feels genuine remorse and shame for his offending conduct and that he has had no real opportunity to undertake either a sex offender’s program or an alcohol rehabilitation program while in custody or detention. He says he would like to undertake such programs and has, at his own request, had regular counselling over a period of about seven months while in Villawood. Dr Westmore’s evidence and the assessment made by the Queensland Department of Corrective Services is that the risk of Mr Tara re-offending is very low if alcohol is not involved. Dr Westmore’s evidence about the risk of Mr Tara re-offending if he continues to drink alcohol is contradictory. One the one hand, he states in his report that the risk of Mr Tara sexually re-offending, which is otherwise in the low range, might increase with any future abuse of alcohol. Additionally, the risk of him abusing alcohol in the future is in, at least, the moderate range On the other hand, in oral evidence, he said that if there have been multiple occasions in the past when he has been intoxicated and he only has one conviction for a sexual offence, the correlation between alcohol use and sexual offending is low.
While in the past, Mr Tara’s evidence of traffic offences may indicate that his respect for the law has been questionable, his recent history of complying with the conditions of his bail and voluntarily submitting to being taken into immigration detention suggests otherwise. Mr Tara appears to have strong support from his immediate family and the community with which he has been involved in Australia and, as a result, a stable situation to which he can return in the community, together with good prospects of future employment.
While Mr Tara has committed a serious offence, the sentencing judge’s comments and the Tribunal’s assessment that Mr Tara’s risk of re-offending is low, leads us to conclude that this is a case in which the community would accept a reasonable degree of tolerance in its attitude towards whether Mr Tara should be permitted to remain in Australia. Thus, while this first primary consideration in itself favours the cancellation of Mr Tara’s visa, it must be weighed in the balance with the other relevant considerations.
STRENGTH, DURATION AND NATURE OF THE PERSON’S TIES TO AUSTRALIA
The second primary consideration that paragraph 9(1) of Direction 55 requires the Tribunal to consider is the strength, duration, and nature of Mr Tara’s ties to Australia. Paragraph 9.2(1) states that decision-makers must have regard to:
a)How long the person has resided in Australia, including whether the person arrived as a young child, nothing that:
i.Less weight should be given where the person began offending soon after arriving in Australia; and
ii.More weight should be given to time the person has spent contributing positively to the Australian community.
b)The strength, duration and nature of any family, social and/or employment links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
Mr Tara has been resident in Australia since 29 February 2008, a period of five years. He was aged 34 on arrival and his conviction is in respect of an offence committed on 25 October 2009, one year and eight months after arriving. Ms Given, for the Respondent, referred to the decision in Rosson v Minister for Immigration and Citizenship [2011] FCA 194 in support of her contention that this primary consideration favours cancellation of Mr Tara’s visa. Of the five years spent in Australia, Mr Tara has spent three months in prison, five months on remand in custody and 15 months in immigration detention. In our view, the fact that Mr Tara was held on remand for five months for an offence of which he was ultimately acquitted, and in immigration detention for 15 months largely as a result of a successful appeal against the original decision of this Tribunal, should not be held against him.
Mr Tara’s immediate family in Australia, Ms A, their daughter and Ms A’s father who lives with them, are all New Zealand citizens but have a right to remain indefinitely in Australia under the terms of their visas. The Tribunal has been provided with evidence that, during his time in the community, Mr Tara has not only worked to support Ms A and their daughter, but has also assisted in caring for Ms A’s father who, after undergoing surgery to remove a brain tumour in 2003, has gradually suffered deteriorating eyesight and has recently undergone further surgery in Brisbane from which he is currently recuperating. In her letter dated 6 January 2012, Ms A states that Mr Tara “plays a big role” in her father’s life, helping him “with male hygiene needs and other stuff”, looking after him when going to places and doing things, and keeping him safe so that he does not hurt himself. This is confirmed by her father in a letter dated 9 January 2012.
Ms A stated in evidence that her father is now legally blind and cannot move around by himself. While Mr Tara has been in custody and detention, Ms A has had to guide her father into the shower, but, because of their culture, she is unable to help him wash. This is something Mr Tara would do for her father in the morning and late afternoon. Ms A acknowledged that her two brothers live close by in Mareeba with their families, but she said one brother works in the mines and the other is a truck driver who is constantly in and out of Mareeba. She has asked her brothers to help bathe their father but he would be kept waiting by such an arrangement and he gets frustrated. Her oldest nephew, who is now 22, might also be able to help, but he lives with his girlfriend and it would be hard for him to help because he starts work at 5.00 am. Ms A said there is a youth worker in Mareeba who would help but this suggestion has been rejected by her father because he is not ‘family’.
Mr Tara has provided evidence from two former employers attesting to his being a good worker and Ms A’s evidence is that he is a good provider for their family. It appears that, like Ms A, Mr Tara is also involved in the small Cook Islands community living in Mareeba and was previously involved in a similar group when they were living on the Gold Coast.
In the Tribunal’s view, the evidence suggests that notwithstanding Mr Tara having offended only one year and eight months after arriving in Australia, he has made a positive contribution to his family and the local community. We are satisfied that, at worst, this is a neutral consideration in relation to the cancellation of Mr Tara’s visa.
BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
The third primary consideration that paragraph 9(1) of Direction 55 requires the Tribunal to consider is the best interests of minor children in Australia affected by the decision. This consideration only applies where the child is, or will be, under 18 years old at the time the decision to cancel Mr Tara’s visa is expected to be made. Where there is more than one child under 18 years old, paragraph 9.3(3) states, “[i]f there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ”.
Paragraph 9.3(4) sets out a number of factors that must be considered (where relevant) in ascertaining the best interests of the child. These include:
·the nature and duration of the relationship between the child and the person;
·the extent to which the person is likely to play a positive parental role in the future, taking into account the length of time remaining until the child turns 18, and any Court orders relating to parental access and care arrangements;
·the impact of the person’s prior conduct, and any likely future conduct, and whether that has, or will have, a negative impact on the child;
·the likely effect that any separation from the person would have on the child;
·whether there are other persons who already fulfil a parental role in relation to the child; any known views of the child;
·evidence that the person has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
·evidence that the child has suffered or experienced any physical or emotional trauma arising from the person’s conduct.
Mr Tara has one child in Australia, his daughter who is aged 13 and living with her mother. Mr Tara’s evidence and that of Ms A establishes that he has a close relationship with her. While he was not living with Ms A for the first 4 years of their daughter’s life, apart from the time spent in custody or detention, he has lived with her and Ms A since then. Mr Tara said he and Ms A came to Australia for a better life including, in particular, for their daughter, who was being bullied at school. Ms A spoke of the problems with the gang culture in New Zealand such that at the age of seven, her daughter came home one day and had drawn a gang sign. Ms A did not want her daughter to have such a life. Ms A’s mother, who has been separated from Ms A’s father for many years, initially brought Ms A’s daughter with her to Australia for six months in 2006. Then, when Ms A and Mr Tara came to Australia in February 2008, their daughter accompanied them.
Ms A said her daughter was very unsettled when Mr Tara was sent to prison. She just wants her father, whom she has not seen since he was taken into immigration detention, to come back home. She used to speak with her father on the phone every night, but it was upsetting her so much that she was crying “because she misses her dad so much”. Ms A currently only allows her daughter to speak to Mr Tara on the phone every two days to try to avoid her getting so upset.
In her statement dated 1 March 2013, Ms A said that “If anyone has really suffered, my daughter has.” She has had to be uprooted from her home when she and Ms A and her father were evicted from their rented house after Mr Tara was detained, and they lived in a garage and crowded houses until Ms A found her feet. Ms A’s daughter has also moved schools on a number of occasions. They lived on the Gold Coast for the first three years after arriving in Australia before moving to Mareeba. Recently, in November 2012, Ms A had to move them back to the Gold Coast while her father was having surgery in Brisbane, and her daughter has been attending High School on the Gold Coast. They have been living at her cousin’s house and will move back to Mareeba, where Ms A has been able to keep their rented house, as soon as her father has recovered sufficiently to leave the vicinity of Brisbane. She hopes this will be after his next medical appointment on 15 March 2013.
Ms A said despite moving schools on a number of occasions, her daughter has done better at school in Australia. She is a reserved child but has made a few friends at Mareeba High School and she is very close with Ms A’s younger brother’s younger children – her cousins – one of whom is in the same year at school and another in the year above. Ms A said that if Mr Tara is removed to New Zealand, she will have to consider returning to New Zealand with her daughter and father.
Mr Poynder submitted that Mr Tara and Ms A’s daughter needs continuity and stability in her life which she is only likely to get if her father is released into the community and they resume their lives surrounded by family in Mareeba.
The Tribunal is satisfied from the evidence that the best interests of Mr Tara’s daughter strongly favour his visa not being cancelled.
INTERNATIONAL NON-REFOULEMENT OBLIGATIONS
The fourth primary consideration is whether Australia has any international non-refoulement obligations to the person. There is no evidence of any non-refoulement obligations in Mr Tara’s case.
OTHER CONSIDERATIONS
As noted above, paragraph 10 of Direction 55 states that ‘other’ considerations, where relevant, must be taken into account. However, subparagraph 8(4) states that primary considerations should generally be given greater weight. Relevant ‘other’ considerations in Mr Tara's case specifically referred to in Direction 55 are:
·the effect on the person’s immediate family in Australia, if those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely;
·any impact on business interests the person may have in Australia;
·the impact of a decision not to cancel a visa on the Australian community, including victims of the person’s criminal behaviour and their family, where that information is available and the person has been afforded procedural fairness; and
·the extent of any impediments the person may face if removed from Australia to their home country in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account the person’s age and health, any substantial language or cultural barriers, and any social, medical and/or economic support available to them in that country.
There is no evidence of any cultural barriers to Mr Tara re-establishing himself in New Zealand if he was removed there and he should be able to find employment given his past work history. Mr Tara has family there but he said his father and his older sister, who live in Auckland, would not able to provide him with accommodation if he is removed there. His mother who, apparently, is separated from his father, lives in Australia as do two half siblings. Mr Tara does, of course, also have three children in New Zealand with whom he has had no contact for about eight years.
We accept that removing Mr Tara to New Zealand would involve significant hardship for him if he is separated from his immediate family in Australia. Ms A said she has not decided whether she would return to New Zealand if Mr Tara is removed there. Mr Tara’s age and health do not appear to pose any particular difficulties for him in relocating.
The Tribunal is satisfied from the evidence of Ms A and her father referred to above, that for Mr Tara to be removed to New Zealand would adversely affect Ms A and her father, who are both residents permitted to remain in Australia indefinitely. Ms A has sought to establish a new life for herself, her daughter and her father in Australia, and her father would be without Mr Tara’s support if Ms A decides not to relocate to New Zealand.
In the Tribunal’s view, the ‘other’ considerations generally favour Mr Tara’s visa not being cancelled.
CONCLUSION
Paragraph 7(1) of Direction 55 requires the Tribunal, informed by the principles set out in paragraph 6.3, to determine whether the risk of future harm is unacceptable, balancing the likelihood of future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community. The principles in paragraph 6.3 include, relevantly, taking into consideration the length of time the person has made a positive contribution to the community and the consequences of a visa cancellation for minor children and other immediate family members in Australia.
As stated above, while the first primary consideration, the protection of the Australian community, of itself favours the cancellation of Mr Tara’s visa, the sentencing judge’s comments and the Tribunal’s assessment that the risk of Mr Tara re-offending is low, leads us to conclude that this is a case in which the community would tolerate a reasonable degree of risk in its attitude towards whether Mr Tara should be permitted to remain in Australia. It must, therefore, be weighed in the balance with the other relevant considerations.
While the Tribunal has concluded for the reasons stated above that the second primary consideration - the strength, duration and nature of Mr Tara’s ties to Australia - is a neutral consideration in terms of whether his visa should be cancelled, we are satisfied that the third primary consideration - the best interests of his 13 year old daughter - strongly favours his visa not being cancelled. The ‘other’ considerations also generally favour his visa not being cancelled although, in accordance with paragraph 10(4) of Direction 55, such other considerations should generally be given less weight than the primary considerations.
We have concluded that in view of the best interests of Mr Tara’s daughter, and also having regard to the interests of Ms A and her father, the community should tolerate the risk of Mr Tara re-offending for the following reasons: Mr Tara has only one conviction, albeit for a serious offence; the sentencing judge handed down a sentence at the lower end of the relevant spectrum; and we assess the risk of his re-offending to be low. Thus, the decision to exercise the Minister’s discretion to cancel Mr Tara’s visa should be set aside and a decision substituted that the Minister’s discretion under s 501(2) of the Act should not be exercised to cancel Mr Tara’s visa. Mr Tara will, of course, be on notice, as he has not been before, that any future misconduct will lead to the cancellation of his visa being reconsidered.
DECISION
The decision under review is set aside and a decision substituted that the Minister’s discretion under s 501(2) of the Migration Act 1958 should not be exercised to cancel Mr Tara’s visa.
I certify that the preceding 64 (sixty four) paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley and Senior Member NP Bell.
.......................[SGD]...................................
Associate
Dated 22 March 2013
Date(s) of hearing 6 March 2013 Date final submissions received 6 March 2013 Counsel for the Applicant N Poynder Solicitors for the Applicant Legal Aid NSW Advocate for the Respondent S Given Solicitors for the Respondent Minter Ellison Lawyers
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