Ruautu Tara and Minister for Immigration and Citizenship
[2012] AATA 79
•13 February 2012
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2012] aata 79
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/5061
GENERAL ADMINISTRATIVE DIVISION ) Re MIKAERA RUAUTU TARA Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Ms G Ettinger, Senior Member Date13 February 2012
PlaceSydney
Decision The Tribunal affirms the decision under review. ......................sgd.....................
Ms G Ettinger
Senior Member
CATCHWORDS
IMMIGRATION - Visa cancellation - character test - substantial criminal record - whether Tribunal should exercise discretion to recommend grant of Applicant's visa pursuant to s 501 of the Migration Act 1958 - application of Direction 41 issued under s499(1) of the Migration Act 1958 - primary considerations - protection of the Australian community - risk of recidivism - length of time that a person has been ordinarily resident in Australia - interest of children - other considerations - decision under review affirmed
Migration Act 1958: s 501
Direction [no. 41] - Visa Refusal and Cancellation under section 501
Shi v Migration Agents Registration Authority (2007) 158 FCR 525
Makasa and Minister for Immigration and Citizenship [2011] AATA 719
Minister for Immigration v Ali (2000) 106 FCR 313
Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56
Rosson v Minister for Immigration and Citizenship [2011] FCA 194
Lei Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
REASONS FOR DECISION
13 February 2012 Ms G Ettinger, Senior Member SUMMARY
1. Mr Mikaera Ruautu Tara has applied to this Tribunal for review of the decision of a delegate of the Minister for Immigration and Citizenship dated 23 October 2011 to cancel his Class TY Subclass 444 Special Category (Temporary) visa. The visa was cancelled because Mr Ruautu Tara does not pass the character test as a result of his substantial criminal record, pursuant to section 501(6) of the Migration Act 1958, (the Act). In considering his application, the Tribunal is mindful that although Mr Ruautu Tara does not pass the character test, the Tribunal may nevertheless exercise a discretion applying Direction No 41 on Visa Refusal and Cancellation under section 501 of the Act (Direction 41), because ultimately it must make the correct or preferable decision.
2. Mr Ruautu Tara appeared self-represented, and told the Tribunal that he is very sorry about the wrong things he had done in the past, and undertook not to do such things again. He says he has changed following his incarceration, and now reads the Bible, and prays. He wants to be given a second chance. Mr Ruautu Tara says that his links are with his partner, their daughter aged 12, and his family in Australia, and emphasised the hardship he and his family would suffer if he were to be deported.
3. Ms L Weston, who represented the Minister for Immigration and Citizenship, the Respondent in these proceedings, acknowledged that Mr Ruautu Tara and his family would suffer hardship if Mr Ruautu Tara were to be deported. She submitted the Minister’s position, which was that the primary considerations pursuant to Direction 41 weigh significantly against the Applicant, and in favour of cancellation of his visa, and outweigh the consideration of the best interests of his daughter in Australia. She submitted that accordingly, the decision under review should be affirmed.
4. It is not in dispute, and I am satisfied from the evidence before me, that Mr Ruautu Tara does not pass the character test pursuant to the legislation. I have considered the discretion in Direction 41, the primary considerations and also the other considerations, and I am satisfied that the correct or preferable decision is that the Minister’s decision to cancel Mr Ruautu Tara’s visa should be affirmed. My reasons follow.
BACKGROUND
5. Mr Ruautu Tara who is a citizen of New Zealand, was born in the Cook Islands in 1973, and first came to Australia for a period of some ten days in mid- 2007. He then entered Australia on a Class TY Subclass 44 Special Category (Temporary) visa on 29 February 2008, aged approximately 35 years. He has three children in New Zealand, one of whom he says he has not seen for many years, and two of whom he has seen on and off over the years before coming to Australia.
6. He commenced a relationship with Ms Tracey Strickland in New Zealand, but following the birth of their child in 1999, Mr Ruautu Tara left Ms Strickland. Both the Applicant and Ms Strickland noted that he did not return to her until 2003. That means he did not see or have contact with his daughter for the first four years or so of her life. The Applicant came to Australia in 2008 with Ms Strickland and their daughter, then aged approximately nine years. Both the Applicant and Ms Strickland said they have continued their relationship in Australia.
7. In his ‘Personal Details Form’, completed for the Department of Immigration and Citizenship on 29 June 2010, Mr Ruautu Tara admitted that he faced criminal charges if he returned to New Zealand. He stated on the form: Fines – Drink Drive; Traffic Offences – possible prison time. He confirmed the above in his oral evidence.
8. In 2010, in Australia, Mr Ruautu Tara was convicted for a sexual assault committed in October 2009, and sentenced to 12 months imprisonment, to be released after serving three months. He also served five and a half months for a charge of break and enter and sexual assault said to have been committed on 28 February 2010 of which he was later acquitted. I have no evidence of recorded offences while he was incarcerated. The 2009 offence was committed less than two years after Mr Ruautu Tara arrived in Australia.
9. Mr Ruautu Tara was placed in immigration detention in November 2011.
LEGISLATIVE CONTEXT
10. The relevant legislation in this matter is the Migration Act 1958 (the Act), and Direction No 41.
11. Section 501(1) states that the Minister may cancel a visa to a person if the person does not satisfy the Minister that he or she passes the character test. Section 501(6) provides that a person does not pass the character test if the person has a substantial criminal record. Substantial criminal record is defined in section 501(7) as, among other things, having been sentenced to a term of imprisonment of 12 months or more, or to two or more terms of imprisonment where the total of those terms is two years or more. There is no dispute, and I am satisfied that Mr Ruautu Tara does not pass the character test because in 2010 he was convicted of sexual assault, and sentenced to 12 months imprisonment. In such cases, there is a discretion that can be exercised to decide whether the correct or preferable decision is to affirm the cancellation of the visa, or whether a recommendation should be made that the visa not be cancelled.
12. Direction 41 which is made pursuant to section 499 of the Act, is applied when exercising the discretion where a person has been held to fail the character test in section 501 of the Act. In relation to the character test, events leading up to the date of the decision of the Tribunal may be taken into account (Shi v Migration Agents Registration Authority (2007) 158 FCR 525).
13. I am mindful that the Objectives of Direction 41 as set out in paragraph 5 and pursuant to paragraph 5.1(1), are to regulate in the national interest, the coming into, and presence in Australia of non-citizens. Paragraph 5.1(2) states that:
In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.
14. Direction 41 contains a number of primary considerations and other considerations, to which the Minister, and therefore this Tribunal, standing in his shoes, must have regard when considering whether to exercise the discretion to refuse or cancel a visa.
15. The primary considerations in Direction 41 are set out in paragraph 10(1):
…
10. The primary considerations
1) In deciding whether to refuse to grant a person a visa or cancel a person’s visa, the following (the primary considerations) are to be considered:
(a)the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
(b) whether the person was a minor when they began living in Australia;
(c) the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and
(d) relevant international obligations, including but not limited to:
(i) the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
(ii) the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
…
16. A number of other considerations must also be taken into account where relevant, although these should be given less weight than the primary considerations, per paragraph 11(1) of Direction 41. Both the primary considerations and other considerations are discussed in the paragraphs below.
PRIMARY CONSIDERATIONS
17. The relevant primary considerations are: the protection of the Australian community, assessed by considering the seriousness and nature of Mr Ruautu Tara’s relevant conduct; and, the risk that that conduct may be repeated. Also relevant is that Mr Ruautu Tara was already 35 years old when he first arrived, and began living in Australia in 2008, and the length of time he had been ordinarily resident in Australia prior to engaging in criminal activity. It is significant that less than two years after his arrival from New Zealand, Mr Ruautu Tara was convicted of sexual assault.
18. I have addressed the other primary considerations such as the best interests of his children in the paragraphs which follow. There are no international obligations to be considered in this case.
Protection of the Australian Community
19. The primary consideration, protection of the Australian community has been broken down into consideration of the seriousness and nature of the relevant conduct, and the risk that the conduct may be repeated.
Seriousness and nature of the conduct
20. With regard to the seriousness and nature of Mr Ruautu Tara’s conduct in Australia, I note that a non-exhaustive list of offences and conduct are given in paragraph 10.1.1(2) of Direction 41. I have already mentioned above that Mr Ruautu Tara was convicted of sexual assault of a 17 year old girl on 6 April 2010, to which he had pleaded guilty. The offence was committed on or about 25 October 2009. Paragraph 10.1.1(1) informs that crimes involving violence are of special concern to the welfare and safety of the Australian community, and that rape and other sexually-based offences are considered to be serious. It also informs that crimes against vulnerable persons such as the 17 year old victim of Mr Ruautu Tara’s crime are especially abhorrent to the whole community.
21. Her Honour Judge McGuiness DCJ, in sentencing Mr Ruautu Tara on 6 April 2010, stated:
Now, Mr Ruautu-Tara, you have pleaded guilty to a serious offence and I understand 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 was only 17 years of age at the time and she called you ‘uncle’ within your family situation.
... I also have regard to your cooperation with the police, your very early pleas of guilty. You do have a criminal history, but nothing of a like nature.
Because of the serious nature of these offences within the community, deterrence is particularly important. Therefore I find that the only appropriate sentence to impose is one of imprisonment.
22. In assessing the protection of the Australian community per Direction 41, I have considered the seriousness and nature of the relevant conduct by Mr Ruautu Tara as discussed above. There is no doubt that his offence was serious, and abhorrent to the Australian community.
23. I note also that, during the period after the commission of the sexual assault, and before Mr Ruautu Tara was convicted of that offence, he was charged with break and enter and sexual assault of a female on 28 February 2010. He was acquitted of that charge.
24. The Minister’s representatives referred to the matter of Makasa and Minister for Immigration and Citizenship [2011] AATA 719, a case in which this Tribunal considered the implications of a charge of which the Applicant had been acquitted. They also referred in the Statement of Facts and Contentions to Minister for Immigration and Multicultural Affairs v Ali [2000] 106 FCR 313 as follows:
In assessing the seriousness of the Applicant's behaviour, due regard must be given to the extent of the Applicant's criminal record (see paragraph 10.1.1(3) of the Direction). The Respondent contends that it is relevant that the time that the Applicant committed the sexual assault for which he was convicted he was subject to a pending charge for a similar offence of Indecent Assault (Adult). The Applicant was subsequently found not guilty of the outstanding matter but the Respondent contends that the commission of a crime in circumstances where a similar charge was pending is indicative of the seriousness of the Applicant's conduct against the community in the sense referred to in 10.1.1(3) of the Direction.
For completeness, the Respondent contends that an acquittal does not give rise to any issue estoppel and the Tribunal may consider that the other charge is indicative of the Applicant's overall conduct, although any such consideration requires ‘careful and restrained analysis’.
25. I am mindful of what Senior Member Taylor and I held in Makasa, and note that a priori this Tribunal cannot go behind an acquittal.
26. I noted from Judge McGuiness’ statements and the documents of the Queensland Police Service at Exhibit R2, that Mr Ruautu Tara was affected by alcohol at the time of the 2009 sexual assault. I noted further that in relation to the events of 28 February 2010, the Police reported he had been drinking with the complainant at a hotel prior to the alleged assault.
27. The Applicant gave evidence that he was aware of his propensity to drink, and presently restricted his drinking to six or seven cans of beer on one day a weekend, or a couple after work some days. His evidence regarding the pattern of drinking was not consistent. I am mindful he has undertaken no rehabilitation, and no educational programs in relation to alcohol. His evidence was that he had not looked into any such programs.
28. Mr Ruautu Tara’s conviction for sexual assault, the pending charges in New Zealand, and his propensity to alcohol which he has not addressed adequately, weigh against him remaining in Australia.
Risk of the conduct being repeated
29. I next moved to consider the risk of the conduct being repeated, which is a primary consideration. I note that paragraph 10.1.2 of Direction 41 requires that in assessing the risk that the conduct may be repeated, consideration be given to Mr Ruautu Tara’s previous general conduct and total criminal history, and, in particular, to any recent history of convictions, evidence of rehabilitation, and evidence as to whether he has breached any judicial orders.
30. As already stated, Mr Ruautu Tara’s history of criminal behaviour commenced in New Zealand before he arrived in Australia (Exhibit R1, G-Documents p 80). He said that he came here to provide a better environment for his family and to find work. However, less than two years following his arrival in 2008, Mr Ruautu Tara committed a sexual assault on a 17 year old for which he was convicted and imprisoned. In February 2010, in the period between the offence in October 2009, and the conviction in April 2010, Mr Ruautu Tara was charged with a break and enter, and further sexual assault of which he was acquitted.
31. Mr Ruautu Tara expressed remorse and undertook spontaneously at the hearing, not to commit further crime. He said that he reads the Bible and says his prayers daily, and wants a chance to prove himself.
32. Before me there was no professional report or opinion giving an assessment on the risk of Mr Ruautu Tara re-offending. In the extract of Judge McGuiness’ words available to me, recidivism is not mentioned.
33. I am mindful of the role alcohol played in Mr Ruautu Tara’s sexual assault in 2009, and the report that he had been drinking with the complainant in the February 2010 incident. I note also that he has not undertaken any rehabilitation or alcohol programs, and note that pursuant to paragraph 10.1.2.(2)(b) of Direction 41, evidence of the extent of rehabilitation may be taken into account. There has been none that I know of in the Applicant’s case.
34. To his credit, he appears to have been in the same relationship, that is with Ms Strickland, since 2003, and he is the father of their 12 year old daughter. Mr Andrew Strickland, Ms Strickland’s father with whom both the Applicant and Ms Strickland usually reside, gave evidence by telephone from Queensland. Both he and Ms Strickland, who also gave telephone evidence, were very supportive of Mr Ruautu Tara. He appears to have assisted Mr Strickland, who is partially blind, with his care.
35. I am mindful that there is no evidence before me to indicate that Mr Ruautu Tara has breached any judicial orders or any prison rules, (paragraph 10.1.2(2)(c)).
36. In considering the risk that Mr Ruautu Tara’s conduct may be repeated, I am mindful of his criminal history, I am also mindful that Matthews J, then President of the AAT stated in Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56 at [51] that:
Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending.
37. I am satisfied from the evidence that paragraph 10.(1)(a), of the primary considerations, being the protection of the Australian community from serious criminal or other harmful conduct, are at some risk if Mr Ruautu Tara is to remain living in Australia. He committed the sexual assault offence of which he was convicted, relatively recently, and less than two years after arriving in Australia. The evidence was also that the Applicant has not undertaken any rehabilitation. Those factors weigh strongly against him remaining in Australia.
Whether the person was a minor when they began living in Australia
38. The next primary consideration relevant in Mr Ruautu Tara’s case relates to him not being a minor, rather a man of approximately 35 years when he first began living in Australia. Direction 41, paragraph 10.2(1) states:
If the person was a minor when they began living in Australia and spent their formative years in Australia, thereby increasing the likelihood of establishment of greater ties and linkages to the Australian community, this is to be given favourable consideration.
39. I am mindful that Rares J stated in Rosson v Minister for Immigration and Citizenship [2011] FCA 194 at [21] that a decision maker, in this case the Tribunal, is entitled:
… to take into account that a person who arrived in Australia as an adult, did so with the knowledge, duties and responsibilities of an adult in the position of the visa holder. … A decision-maker was entitled to take into account the fact that the person was not a minor. Indeed, a decision-maker was bound to have regard to that consideration by force of cl 10(1)(b).
40. I am satisfied that Mr Ruautu Tara’s ties and linkages are primarily to New Zealand and the Cook Islands where he was born. He has only been in Australia for approximately four years.
41. I have noted that Mr Ruautu Tara’s partner and her family are in Queensland, and that she is very supportive of him. The Applicant has a number of family members in New Zealand, including both his parents, who he says have re-partnered, and with whom he says he is not in contact. It is clear Mr Ruautu Tara was a mature adult when he arrived in Australia, and that his formative years were not spent here. His ties in Australia are only to his partner, his daughter and her family.
42. Consideration of the primary consideration, whether the person was a minor when they began living in Australia weighs in favour of returning Mr Ruautu Tara to New Zealand where he has family members and three children, and where he has been in the workforce.
43. The fact Mr Ruautu Tara was a 35 year old when he arrived here, and has only spent some four years in Australia, weigh against him remaining in Australia.
Length of time ordinarily resident in Australia prior to engaging in criminal conduct
44. The third primary consideration, that is the length of time Mr Ruautu Tara has been ordinarily resident in Australia prior to engaging in criminal conduct, is further explained in paragraph 10.3(1) of Direction 41. This states that more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character.
45. As already stated above, Mr Ruautu Tara arrived in Australia in 2008, and had engaged in criminal conduct for which he has served a prison sentence, less than two years later. That weighs against him remaining in Australia.
Relevant international obligations, including but not limited to:
(a) the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
(b) the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
46. In this case, the best interests of the child or children is a very relevant consideration. Mr Ruautu Tara has three children in New Zealand. He told me he was in touch with two of the children from time to time when he lived in New Zealand, and that one was taken away by the mother who changed his/her name. He has not seen that child for a long time.
47. The Applicant also has a twelve year old child of the relationship with his present partner, with whom he resumed relations in 2003 after a gap of approximately four years following the birth of the child. The couple came to Australia with the then nine year old in 2008. They live in Queensland where the child attends school. Ms Strickland told me that the child who had been bullied in New Zealand is happy at her present school, and that she and the child may not be able to join Mr Ruautu Tara if he were to be returned to New Zealand. She said that she had not decided what she would do in such an eventuality. I noted that Ms Strickland has various members of her family in Australia, including her father.
48. I accept Mr Ruautu Tara’s evidence and that of his partner and her father that they would miss each other if he is deported to New Zealand. I can understand of course that it is the wish of Mr Ruautu Tara and his family that he remain in Australia.
49. Ms Weston submitted that if the Tribunal considered that the best interests of the child weighed against cancellation of the Applicant's visa, the decision of the Full Federal Court in Lei Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133 where, at [142] should be considered. The Court there stated:
Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of Mr Wan's children, it was entitled to conclude, after a proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children. However, it was required to identify what the best interests of Mr Wan's children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.
50. Ms Weston submitted that it was accordingly open to the Tribunal to find that the other considerations outweighed the consideration of the best interests of Mr Ruautu Tara’s 12 year old daughter.
51. However, having weighed up the seriousness and nature of the Applicant’s conduct, and the risk of recidivism which is a real one, and the protection of the Australian community, I am satisfied that those considerations outweigh the family’s desire that he remain. The Applicant may or may not see two of his children if he is returned to New Zealand. I am satisfied that his daughter in Australia, with whom he was not in contact for some four years at the beginning of her life, is in good care with her mother, who has yet to decide if she would remain in Australia or follow the Applicant to New Zealand if he is returned there. As submitted by the Respondent, I consider that the child would not face significant cultural or language barriers in resettling in New Zealand. In reaching this conclusion I take into consideration that she would be there with her mother, and indeed her father, as well as the fact that she was born in New Zealand, and has previously lived there.
52. There are no international obligations which weigh towards Mr Ruautu Tara remaining in Australia.
OTHER CONSIDERATIONS
53. Direction 41 states that other considerations, where relevant, must be taken into account but, generally, should be given less weight than the primary considerations. Relevant considerations in Mr Ruautu Tara’s case are his family ties, and the nature and extent of his relationships with those in the Australian community, his age, his links with New Zealand, and whether he has been formally warned in the past that his visa might be cancelled because of criminal conduct.
54. Mr Ruautu Tara’s family ties have been discussed in the paragraphs above. I am mindful that Ms Strickland, their daughter and her family will miss him if the decision to cancel his visa and return him to New Zealand is upheld. However, if his partner does not choose to move with him due to her child’s education and future, her family, and the improved work environment in Australia, she can stay in touch via the telephone, and electronic means. She can also visit New Zealand.
55. Mr Ruautu Tara lived in New Zealand until the age of 34, and there is no evidence that he does not have links to New Zealand. He was employed in New Zealand before coming to Australia, and there is no evidence that he could not find work there if he is returned. His stated preference is of course to remain here, but he has family in New Zealand with whom he could reacquaint himself. His partner’s evidence was that she had not yet made up her mind whether she would follow if Mr Ruautu Tara were to be returned to New Zealand.
56. Mr Ruautu Tara’s age can be taken into account in coming to a decision. He is currently 38 years old, and will be able to work and make a new life for himself in New Zealand where he resided until 2008.
57. Mr Ruautu Tara was not formally warned that his visa could be cancelled if he did not meet the character test. However he was made aware of good character in the correspondence he received from the Minister’s Department in June 2010.
58. Mr Ruautu Tara tendered references and letters of support as follows:
·Tracey Strickland, Mr Ruautu Tara’s partner who misses him and his support, and would like to see him remain with his family in Australia;
·Alosio Waininau, Pastor, Hillsong City Care, who has known the Applicant for a month and stated that he attends Church and is a committed Christian;
·Chloe Holz of Australia Global Personnel who facilitated employment for the Applicant in 2011, and stated that she would have employment available for the Applicant upon release;
·Sai Fuimaono who has known the Applicant for eight years and attests to him being honest and reliable;
·Andrew Strickland, father of Ms Strickland, who praises the Applicant for his good qualities and the good care he receives from his daughter’s partner;
·Daniel Cachia, operations manager, Baiada Poultry Mareeba, who found that in the four months of his employment, the Applicant was a reliable and hard worker; he stated he would re-employ Mr Ruautu Tara;
·Vince Calabro, team leader of Steggles who stated he has known Mr Ruautu Tara since September 2011 and found him to be a good, honest and reliable worker;
·Tautu Strickland, brother of Ms Strickland who stated that he has known Mr Ruautu Tara for 12 years and found him to be a good provider, and excellent in looking after their father;
·Oden Legal who represented Mr Ruautu Tara in his criminal matters stating that he was cooperative, readily admitted guilt to the offence of which he was convicted, and maintained his innocence with the second charge throughout the court process.
59. I am satisfied that a consideration of all the other considerations does not outweigh the primary consideration of the protection of the Australian community. The evidence in connection with the primary considerations weighs significantly against Mr Ruautu Tara, and in favour of cancellation if his visa.
CONCLUSION
60. There is no dispute that Mr Ruautu Tara does not pass the character test. In then considering the discretion in Direction 41, my first task was to weigh up the primary considerations to which I am required to give greater weight.
61. Amongst other things, I must take into account:
·the protection of the Australian community;
·consideration of the fact Mr Ruautu Tara was not a minor, but 35 years old when he arrived in Australia;
·the fact that he was convicted of the serious offence of sexual assault on a 17 year old approximately less than two years after arriving in Australia;
·the risk of re-offending being a real one; and
·that he has outstanding offences for which he could be convicted and imprisoned in New Zealand.
62. The above considerations outweigh the desirability of a family remaining together with their child, and any hardship to the Applicant and his family such that the discretion in section 501 of the Act should not be exercised in the Applicant's favour. Having weighed up all the primary considerations, and the other considerations as contemplated by Direction 41, I am satisfied that the decision of the Minister to cancel Mr Ruautu Tara’s visa should be affirmed.
DECISION
63. The Tribunal affirms the decision under review.
I certify that the 63 preceding paragraphs are a true copy of the Reasons for the Decision herein of Ms G Ettinger, Senior Member
Signed:.........sgd........................................................................
Casey Comans, Associate
Date of Hearing31 January 2012
Date of Decision13 February 2012
Solicitor for the Respondent Ms L Weston, Minter Ellison
Interpreter (Cook Island Maori) Rev. Akakoreia Rangiuira
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