Taurua and Minister for Immigration and Citizenship

[2008] AATA 403

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 403

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/0832

GENERAL ADMINISTRATIVE DIVISION        )

Re             Stanley TAURUA

Applicant

AndMinister for Immigration and Citizenship

Respondent

DECISION

TribunalProfessor GD Walker, Deputy President

Date16 May 2008

PlaceSydney

DecisionThe decision under review is affirmed.

……………[sgd]……………………...

Professor GD Walker
  Deputy President

CATCHWORDS - IMMIGRATION – visa-ex – whether applicant’s visa should be cancelled on character grounds – substantial criminal record – multiple convictions for violent offences - protection and expectations of the Australian community – best interests of the child – other considerations – decision under review affirmed.

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RELEVANT ACT/S

Migration Act 1958: ss 500(6B), 501, 501(2)(a) and (b), 501(6)(a) and (c), 501(7), 501G(1)

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CITATIONS

Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

Re SAAC and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1209

Minister for Immigration and Multicultural Affairs v SRT (1991) 91 FCR 234

Minister for Immigration and Multicultural Affairs v Ali (2000) 62 ALD 673

Al-Kateb v Godwin (2004) 219 CLR 562

Re Zhou and Minister for Immigration and Citizenship [2007] AATA 1766

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

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OTHER AUTHORITIES

Direction No 21

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REASONS FOR DECISION

16 May 2008	Professor GD Walker, Deputy President
Basic facts

1.      The applicant Mr Stanley Taurua was born in New Zealand in 1963 and is a citizen of that country.

2.      On his own estimate, he arrived in Australia for the first time somewhere between 1970 and 1977.  The respondent’s records show his date of arrival as 4 April 1977.

3.      In September 1980 he left Australia and returned to New Zealand where he remained until December 1983.  During his time in New Zealand he was twice convicted of burglary, once of disorderly behaviour likely to cause violence and once of common assault.

4.      After returning to Australia, the applicant accumulated further convictions between 1993 and 2007.  His criminal history may be summarised as follows:

§28.07.1982, Convicted of burglary in New Zealand, fined $500;

§08.12.1982, Convicted of burglary in New Zealand, sentenced to five months’ non-resident periodic detention;

§19.01.1983, Convicted of “disorderly behaviour – like cause violence” in New Zealand, fined $130;

§13.09.1983, Convicted of common assault in New Zealand, fined $150;

§22.04.1993, Convicted of assault occasioning actual bodily harm, sentenced to nine months’ periodic detention;

§16.07.1993, Convicted of maliciously inflicting grievous bodily harm, sentenced to a minimum sentence of 12 months' imprisonment and an additional term of three months' imprisonment;

§27.02.1998, Convicted of assault occasioning actual bodily harm, fined $5,000, sentenced to two years’ probation.  Also convicted of demands moneys with menaces, fined $5,000, sentenced to two years’ probation;

§12.02.1999, Convicted of common assault, sentenced to six months' imprisonment.  Convicted also of “stalk intimidate with intent to cause fear of personal injury”, sentenced to six months' imprisonment;

§22.02.2001, Convicted of two counts of possess prohibited drug, fined $200;

§28.03.2002, Convicted of assault occasioning actual bodily harm, sentenced to four years' imprisonment, non-parole period of three years.  Convicted also of assault occasioning actual bodily harm, sentenced to two years, six months' imprisonment, non-parole period of 12 months.  Convicted also of assault occasioning actual bodily harm, sentenced to two years, six months' imprisonment, non-parole period of 12 months.  Finally, convicted also of common assault, sentenced to 12 months' imprisonment.  Total effective sentence of six years, six months' imprisonment with a total non-parole period of five years;

§06.06.2006, Released on parole;

§09.03.2007, Parole order revoked and re-detained to serve remainder of sentence of nine months, 16 days;

§20.03.2007, Convicted of common assault, sentenced to six months' imprisonment;

§1993-2005, Committed a number of offences while in prison including “fighting” on two occasions and “threatening behaviour” on two occasions.

5. On 19 January 2008 a delegate of the minister decided to cancel the applicant's class TY subclass 444 special category visa on the ground that he was deemed to have a substantial criminal record under s 501(7)(c) of the Migration Act 1958 (Cth) (the Act) and consequently did not pass the character test under s 501(6)(a). The delegate then exercised his discretion to cancel that applicant’s visa under s 501(2) of the Act.

6.      On 28 February 2008, the applicant applied to this tribunal for review of the delegate’s decision.

7.      The application was set down for hearing at Balmain courthouse commencing on 6 May 2008.  On the first day of the hearing it became apparent that the applicant wished to call one of his witnesses, Audra Hall, who apparently lives at Bellingen, New South Wales, to give oral evidence by telephone.  It emerged that Balmain courthouse had no facilities for taking telephone evidence.  After hearing the applicant’s evidence, the tribunal adjourned the hearing part-heard to 7 May, in hearing room 3, Level 5, 55 Market Street, Sydney where telephone evidence facilities are available.  The hearing was resumed on 8 May.

8.      At the hearing, the applicant appeared in person, while Mr Tigiilagi Eteuati, solicitor, Clayton Utz appeared for 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 A1, together with the other documents tendered by the parties at the hearing.  The applicant gave oral evidence in person.

Issues

9.      The issues in this case are:

(i)whether the applicant passes the character test in s 501(6)(a) of the Act, given his substantial criminal record as defined in s 501(7) of the Act; and if not,

(ii)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

10.     Under s 501(2) of the Act, the Minister may cancel a visa if the holder does not satisfy the Minister that the person passes the character test (s 501(2)(a) and (b)).  The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met.  The relevant grounds in the current matter are paragraphs (a) and (c), as follows:

…

For the purposes of this section, a person does not pass the character test if:

(a)       the person has a substantial criminal record (as defined 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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11.     “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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12.     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.

13.     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

14.     In his statement dated approximately 17 April 2008 (Exhibit A6), the applicant claimed that the delegate’s decision was based “not on my crimes but on the colour of my skin, the colour of my eyes and how you punished me for not being white with blue eyes”.  The department had not properly investigated his character and it was wrong that the government was still proceeding with “archaic, racist laws designed 2 [sic] get rid of all non-whites with criminal records” purely because he was not born in this country.

15.     The respondent had not taken into account his relationship with his son Rhion Taurua, which had always been ongoing since his son was born, or his ties with the community, his work record, his relationship with his family and the fact that he was raised in Australia in his formative years.

16.     The respondent had also failed to take account of the fact that he was brought to Australia not of his own accord but was forced to come because his mother became involved with an Australian, Philip Smith.  Consequently, he was taken away from his family in New Zealand and was brought to Australia to live and be raised as an Australian.  He was forced to be a New Zealand-born Australian after being forcibly taken away from his homeland, his culture and his people.  None of the children had any say in their mother’s decision to live in Australia with Philip Smith.  Neither he nor his mother cared whether the children would be able to adapt to the Australian way of life.  They had to live with foreign people with foreign customs, a foreign language and definite racist views about the colour of a person’s skin.  He was a product of being separated from his family and demographic group.

17.     He concluded (preserving the original spellings):

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Now yous judge me not of my crimes, because their are thousands of people with the same crimes as me but because of the colour of my skin and the fact that I was born in New Zealand and raised in Australia with my Australian step father.

Yous say my character is repugnant yet it is the very one Australian culture gave me.

I am a product of the hardest Australian way of life yous recognize the true Aussie battler.

18.     In his oral evidence he said he had take responsibility for his criminal record and had paid for it.  He was sorry about the people he had hurt but it would cause more harm to the community to send him back to New Zealand.

19.     He came over when he was very young and had no choice in the matter.  His mother fell in love with an Australian and dragged him off to Australia.  In effect he had been kidnapped.

20.     He was uncertain of exactly when he had first arrived in Australia but it was some time between 1970 and 1977.  Later he said he had been aged about 14 at the time, which would have made it 1977.

21.     His troubles stemmed from the way in which he had been taught in Australia in the late 1970s about how to solve problems.  He had come from one culture to another with no support system.  The solution offered by the older people in his culture was violence, which was ripping through Australian society at the time.  He had adopted that solution as he had to fight constantly because, depending on the group he was with, he was either too black or too white.  He was thrown out of schools in Victoria for being too black.

22.     He loves the two boys and they love and need him.  Cancelling his visa would take a son’s father away from him and he would grow up without a father.  The applicant would fight that tooth and nail.

23.     He had a good work record and had obtained a job as a rigger with a group called Strongest Link as soon as he was released from jail in February.  He worked on the Sydney Harbour Bridge, at the aquarium and on the Centrepoint Tower.

24.     He was not going to bother anyone.  He has a son who needs a father, otherwise he could grow up to be like him.  It was wrong to require a boy to call someone else father, as his son’s mother had done.

25.     In cross-examination the applicant said that his son Rhion had tried hard to contact him over the last 12 months because he wanted to get to know his father.  He would have done so earlier, but his mother would not allow it.

26.     Until the visit in January 2008 (Exhibit A2) he had not seen Rhion since he was very young.  He had never lost contact with them, however, and agreed with their mother that he would see them when she and the boys were ready.  She had many men in her life and the boys had to treat each one as a father.  As the applicant did not want to bring in “another spin”, he had allowed that to happen.

27.     He met Rhion in January 2008 and it had been intended that he would be taking care of him for the rest of his life.  He had not seen him for eight years before then.

28.     His relationship with Rhion’s mother, Audra Hall, had ended in 1994.  After that she was in turmoil, continually moving.  Nevertheless, he had maintained his relationship with the children and would drive to where she was living.  She is now with a good man, Dean, who is on good terms with Rhion.  The applicant regards him as a good man because he has stayed with Rhion’s mother for more than six months.

29.     He could not remember when he had been in contact with the boys’ mother, saying that dates were irrelevant to him and he could not give them.  What was important was that he had a son who loved him.  He had not asked to come to Australia, but had been forced to do so.

30.     It was pointed out to him that he spoke only of Rhion and never mentioned his other son, Uhlan.  He said Uhlan is in the army and does not have Rhion’s problems.  When the family came down to see him on 5 January, Uhlan had come with them and the applicant had then seen him for the first time in eight years.  Rhion stayed for a week but Uhlan returned with the family.  Asked if he had returned on the same day, the applicant replied simply that he had returned with the family.

31.     Since being in Villawood he has telephoned the family twice a week and speaks to the step-daughters and all the family.

32.     In relation to the letter from Jay Ellard, his 17 year-old nephew (Exhibit A3), he said he had last seen Jay about 10 months ago.  He had not spent much time with him but intended to do so.  Further, there are 100 or 200 other young people under 18 with whom he has a relationship; they call him “uncle”.  He could say they are relatives but they are not actually blood relatives.  They are people whose fathers he looked after when they came from New Zealand and he was working for an organisation that helped them.  None of them as far as he knew were involved in crime.

33.     In relation to his 2002 convictions, which included convictions for assaults on children, he said he was innocent.  He had pleaded guilty to the offences that he did commit but had pleaded not guilty to those of which he was innocent and had refused any plea-bargaining deal in relation to them.  The children’s mother had given false evidence in the case.  He admitted assaulting their mother more than once but said he had taken care of her children when she did not.

34.     He was released from prison after completing his sentence in relation to the 2002 offences on 6 June 2006 on parole.  His parole had been revoked in February 2007 on a mere allegation based on concocted statements.  He had been found not guilty of the charges.

35.     Asked about the note on the sentence report (G p148) indicating that he had assaulted his seven year-old son in 1998, he said he had merely clipped his son, Uhlan, over the ear when he did something wrong, but had not injured him.  His mother had reported him for assault and he had been sentenced to six months' imprisonment.

36.     None of his other convictions related to assaults on his children or any other children.

37.     In about 1980 he had wanted to join the Australian army but was told he had to go to New Zealand if he wished to join the army.  He did so and served in the New Zealand infantry between 1980 and 1983.  He had loved army life and wishes he had never left it, but he quit the service after his mother had a stroke and he needed to look after her.

38.     In relation to his conviction on 20 August 2007 for assault, he denied committing the offence and claimed that the witness had lied and the evidence itself showed that he was innocent.  The case proved that there was no justice to be had in Australia.

39.     Asked about the association with a woman that led to a further allegation of assault on 14 January 2007 (G p152), he said he had spent an hour with the woman on New Years’ Eve, that it did not even constitute a one-night stand.  She had made false accusations against him because he had not wanted to begin a relationship with her in view of his parole conditions.  He said he was the victim in that case.

40.     In relation to his offences in prison (G p65), he said Islanders (a category in which he includes Maoris such as himself) are “killed at the drop of a hat” in the New South Wales prison system, that they can lose their lives in two minutes.  It has proved necessary to segregate ethnic groups into their own particular yards.  He had been kicked, bashed and required hospital treatment as a result of assaults by aborigines.  The offences he had committed were unavoidable if one did not want to be killed.

41.     He said most of his family are in Australia, but he could have aunts, uncles and other relatives in New Zealand.  He did not know who they were because his mother had not wanted him to know about them.

42.     Asked if it would be possible for him to contact his children from New Zealand, he replied that Rhion needs a father 24 hours a day and seven days a week.  He wants to be there to answer his son’s questions.  It would not be possible for him to telephone him in New Zealand as Rhion is not rich and could not afford to do so.  The applicant said he has done a basic course on computers but has not learned to use email.

43.     Rhion, he said, lives with his mother – the intention had been that he would come and live with the applicant.  He does not know if Rhion has ever been to New Zealand.

44.     While in prison he had undertaken a number of rehabilitation courses, including anger management, personal development, adult nucleus (mentoring of younger prisoners), first aid, Bobcat and front-end loader operation.

45.     Nine-tenths of his family are in Australia and he has close relationships with all of them.  While in prison he maintained contact only with his brother Kevin.

46.     He resented the way in which Australia’s laws had changed since the 1970s, when he arrived in Australia.  In the 70s, “a clip on the ear” for a child was considered good management, but now you get six months’ jail for it.  Australia was a great country when he first came here, unless you were of another colour or had no money, in which case you would starve or be ridiculed.  When he was living in Victoria with his mother they were continually moving house and for him to spend two weeks in the same school was like winning the lottery.  His experience in Australia had been “great”, however.  Anyone from another country would have problems, though, and he was 14 at the time.  He wanted to stay in Australia because he loves it, and was raised here.

47.     His violent offences began earlier than 1983, around 1978 when he was under 18 and the offences were dealt with in children’s court.  He got into trouble because he was beaten up by the Horsham police in Victoria.

48.     He did not think he represented a significant recidivism risk.  He had lived long periods without violence and presented no risk to children.  He wanted his son to know who he is – that was his rightful place.  He denied that the experience could be negative for Rhion, saying that having no father is negative also, in the worse possible way.  He would not be a bad influence.

49.     His sons had been aware of the hearing of this application, but he had not asked them for statements to assist his case.

50.     As regards rehabilitation, while in jail he had undertaken every course that was available and passed with flying colours.  But on the outside, if someone does not like you, they can make false claims against you.  He had done nothing wrong but had no chance.  Being a New Zealand citizen, he was ineligible for C2 or C3 classification and was kept in maximum security with no real chance for rehabilitation.  The law in Australia prevented him from doing right.

Supporting evidence

51.     The applicant said that the most important witness he could call in support of his case was his son Rhion Taurua, aged 15.  Rhion had not signed a witness statement, but his mother Audra Hall had prepared a statement (Exhibit A2) which she had described as being on behalf of Rhion.

52.     It appeared to me that if Rhion gave evidence to the effect of Exhibit A2, it would not be excluded by operation of s 500(6H), as that provision requires only that information presented orally in support of an applicant’s case must be set out in a written statement given to the minister at least two days before a hearing.  It does not require that the person giving the evidence must also be the author of the statement.  That interpretation is supported in the decision of Deputy President Jarvis in Re SAAC and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1209 at para 41.

53.     After Rhion had taken an affirmation, Exhibit A2 was read to him and he adopted its contents as true and correct.  The statement relates how Rhion located his father in November 2007 shortly before the applicant was released from prison.  Previously, Rhion had gone to considerable trouble attempting to find him, including searching Sydney telephone books.  In November, however, he obtained the address of the applicant's brother Jim in Victoria through Centrelink.  Jim put Rhion in touch with the applicant’s brother Kevin in Wollongong and arrangements were then made for Rhion to meet his father in Wollongong in January 2008.  Rhion stayed with his father for a week and both were happy to spend time together.  Arrangements were being made for Rhion to live with the applicant for a while and the two were in telephone contact nearly every day.  The applicant began making arrangements to enrol Rhion at a school in Miranda.  He had obtained employment to help him support Rhion and was searching for accommodation in that area.

54.     The day before Rhion was to travel by train to Sydney from Coffs Harbour, the applicant was detained at Villawood and Rhion had to cancel his trip to Sydney.  Rhion would welcome the opportunity to be with his father, but it would be much more difficult if the applicant were sent to New Zealand.

55.     In cross-examination Rhion said he could not remember the last time he had seen the applicant before January 2008, but he thought it was about eight years previously, when he was aged six or seven.  He was not living with the applicant at the time and was not sure what transpired.  He now wished to go and live with the applicant to make up for lost time.

56.     Rhion said he did not know much about his father but wanted to know more.  He was aware of the applicant’s criminal record but thought he had changed.  In re-examination he said he wanted his father released so that he could come to live with Rhion in Bellingen or so that he could move down to Sydney to be with him.

57.     Audra Hall was unavailable to give oral evidence by telephone on 7 May, apparently because she was attending court in connection with some paternity proceedings concerning a child of whom Rhion was the putative father.  On the third day of the hearing, 8 May, she was at work and again unavailable and the applicant decided not to proceed to attempt to call her at work.

58.     A statement dated 12 April 2008 by Stacey Ellard (Exhibit A5), the applicant’s younger sister, states that the applicant had not spent a great deal of time with her family unit but had been regarded fondly as part of their extended family.  Since his release from jail in 2008, her 17-year-old son Jay had been keen to become acquainted with his uncle and had been looking forward to having him in his life.  She thought the applicant could provide some positive direction in Jay’s life.  In his previous dealings with her children he had shown them affection, demonstrating gentleness towards them and a strong interest in their lives.

59.     Jay Ellard himself signed a brief statement (Exhibit A3).  “My uncle Stanley has not been a big part of my life, although I have met him on a few occasions and he even spent a few days with my family a few years ago”, he wrote.  He would like to have the opportunity to get to know the applicant better as he believed there is a lot he could learn from him and from his experiences.

60.     Stacey Ellard’s husband Glenn, is the deputy editor of South Coast Register newspaper in Nowra, New South Wales.  In his written statement (Exhibit A4) Mr Ellard wrote that he found the applicant’s past inconsistent with the behaviour he had observed in Stanley since his most recent release from jail.  He seemed determined to make a positive contribution to the community.

61.     Soon after release he secured work for himself as a rigger, also organising work for his brother Kevin who had spent about seven years unemployed and on social security benefits.  This had a major impact on Kevin and had helped him to see his own worth.

62.     Another indication of a change in the applicant was his response to a savage assault on his sister Raewyn in Bomaderry.  Kevin's immediate reaction was to talk of retribution, but the applicant played the role of a peacemaker, calming the situation and opposing any suggestions of taking revenge.  Mr Ellard thought that signified a change in the applicant, who had also embraced religion in recent times.

63.     Apart from the above, no other family members (including the applicant’s son Uhlan) filed statements or gave evidence.

Applicant’s submissions

64.     The applicant made extensive, voluble and vehement submissions, a good deal of which consisted of allegations of fact that were not mentioned in his statement (Exhibit A6) and are therefore excluded from consideration by s 500(6H).

65.     The essence of the admissible parts may be summarised.  As regards the protection of the Australian community, the applicant argued that he had been raised here and what he is comes from Australian society.  There are three classes in this country, rich, middle and poor.  He was from the lower class, in which single mothers have to sell themselves, and children have to deal in drugs in order to survive.  It is a jungle.

66.     He had paid his debt for all the offences he had committed.  He had lost his parole, but on the basis of a mere allegation and because he was poor, he could not demonstrate that he was not guilty.  In due course he had been released again.

67.     Now he hoped to have a different life.  He has a son, who himself may have a  child, and who wants to know the applicant better.  Being poor he could not travel to New Zealand to visit his father, so it was wrong to condemn him or his son for the future when he was now a different person.  He wanted to fight for his son, to ensure that he had a full life and learned to know all about his background.  The tribunal could not predict that he would be the same in the future as he was in the past; “I’m a father now”.

68.     He submitted that he knows more about Australia than about New Zealand.  He wanted the opportunity to prove that what he said was true.  He was the product of the lower class Australian lifestyle of beer drinkers, bong smokers and prostitutes.  Fatherless sons tended to end up in jail.  He had experienced a horrible past but had tried to better himself.  Even while in jail, he had taken care of 500 people and had prevented violence and killings.

69.     As he had said in his oral evidence that he was innocent of the assaults against Julie White’s children for which he was convicted in 2002, and had pleaded not guilty that those charges (he had in fact pleaded guilty and had received sentencing credit for doing so (G pp131, 146)).  I asked him if he had any explanation for the injuries the children had suffered, as shown in the photographs that the sentencing judge had described as “nothing less than horrific”.  He offered a detailed and lurid description of the den of drugs, prostitution and filth into which he said Julie White had turned her house.  The photographs were extreme, he said, but they were part of an extreme lifestyle.  It was easy to make up stories and Julie White did not want to lose the children to the Department of Community Services.  But he offered no explanation for the children’s injuries.

Application of the Law and Findings of Fact

70.     As was stated above, the first issue for me to decide is whether, pursuant to ss 501(6)(a) and (7), the applicant passes the character test having regard to his substantial criminal record.

71.     In this case the applicant does not pass the character test because of his “substantial criminal record” within s 501(7).  In 2002 he was sentenced to six years' imprisonment and he has received on five other separate occasions custodial sentences totalling over two years.

72.     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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73.     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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74.     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.

75.     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

76.     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 prima facie 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 of several offences of violence on 28 March 2002 and sentenced to a number of terms, totalling an effective sentence of six years and six months' imprisonment with a total non-parole period of five years.

77.     On eight other separate occasions he was convicted on other charges, all but one involving violence or the threat of violence.  There is also one conviction on two counts of possessing a prohibited drug and one for demanding money with menaces.  He was also convicted for stalking or intimidating with intent to cause fear of personal injury.  He also said that he had convictions in children’s court for offences of violence beginning in 1978.

78.     On four other occasions, the applicant was convicted in New Zealand, twice for burglary, once for common assault and once for disorderly behaviour likely to cause violence.

79.     In his witness statement (Exhibit A6) he said nothing about his offences but simply asserted that the respondent cancelled his visa, not because of his criminal record, but because of the colour of his skin and eyes.

80.     He advanced as mitigating factors relating to his entire criminal record within paragraph 2.8(a) of Direction No 21 the fact that he had been uprooted from his original background in New Zealand and moved to Australia against his will.  He repeated that proposition several times and clearly regarded it as an important factor.  He also argued that his offending resulted from the way in which he was taught in Australia in the late 70s about how to solve problems.  The solution offered by older people in his culture was violence.  In rural Victoria, mainly in or around Horsham, he had been subjected to racist name-calling by both caucasians and aborigines.

81.     His explanation of these mitigating factors was oddly inconsistent.  He complained bitterly about being torn from his native New Zealand background and deposited in an environment that he perceived as foreign and racist, but insisted that he wished to stay in Australia because his experience in this country had been “great”, and he loved the place and had been raised here.

82.     He also claimed to have been “thrown out of schools because [he] was too black”, an allegation that is too improbable to be accepted without corroboration, of which there is none.

83.     The claimed extenuating factors make little difference to the seriousness of the applicant's record.  Moving from New Zealand to Australia at the age of (probably) 14 can hardly be regarded as involving a major cultural rupture.  Even if it did, the fact remains that the great majority of those who move from New Zealand to Australia do not accumulate criminal records such as the applicant’s.  Any name-calling or emotional instability he may have experienced in Australia scarcely accounts for his offences of violence in New Zealand, much less for his repeated assaults on Julie White and her children, described by Stewart AJ as “all vicious and cowardly” (G p138).  Nor do they mitigate the other offences on his record.

84.     Referring to photographs of the injuries Ms White and her children sustained at the applicant's hands, Stewart AJ described them as “nothing less than horrific” and had to remind himself not to let the visual impacts influence him unduly.  Nevertheless, he saw the offences objectively as approaching the top of the scale for those kinds of offences (G p143).  He also noted that the criminal assaults on the children (to which the applicant had pleaded guilty) had had a serious effect on them.  The applicant offered no explanation for those injuries.

85.     The assault on his son Uhlan for which he was convicted in February 1999, is also of concern.  He sought to justify his conduct by saying that he had simply “clipped” his son’s ear when he was misbehaving, an act that would have been considered “good management” in the 1970s.

86.     The tribunal is directed by paragraph 2.7 of Direction No 21 to view the sentence imposed for a crime as an indication of the seriousness of the offender's conduct.  If the applicant's offence had really amounted to cuffing a misbehaving child once, as he claimed, it is most unlikely that he would have been sentenced to six months' imprisonment.

87.     The applicant’s criminal record can thus only be regarded as very serious.

88.     The next issue for the tribunal to consider is the risk of recidivism.

89.     An applicant's previous general conduct and total criminal history are to be treated as highly relevant to assessing the likelihood of recidivism.  A non-citizen with several previous convictions in Australia should be considered as having an increased risk of recidivism in light of that past behaviour (Direction No 21, paragraph 2.10).

90.     The applicant has over a long period been convicted of multiple offences of violence.  There appears to have been a gap in the series of convictions between 1983 and 1993, but as the Direction points out (paragraph 2.10(b)), in such a case the inference may be open that the applicant has shown that a substantial period since and earlier conviction is not a reliable indicator that future offences will not be committed.

91.     He has not previously been warned about the risk of visa cancelation.  In his oral evidence he said he took responsibility for his offences and had paid for them, and that he was sorry about the people he had hurt.

92.     That expression of remorse is difficult to square with his persistent tendency to diminish the gravity of his offences or to deny them altogether.  He denied the offences against Julie White’s children for which he was convicted in 2002, and said he had pleaded not guilty to them, but had pleaded guilty to assaulting Ms White herself.  In fact he had pleaded guilty on all counts, receiving sentencing credit for it.  At that hearing he also at first denied that he had used the butt of a screwdriver to assault Ms White, but later conceded the point (G p137).  He also falsely claimed that he only assaulted Ms White on one occasion, when there were clearly several assaults over a period (G pp138, 140).

93.     He claimed that his parole had been revoked on the strength of a false allegation, but the assault allegation was clearly only one of the factors that led to revocation of his parole (G pp152-155).  The parole officers also noted his lack of insight into the seriousness of his breaches and his preparedness not to be honest with his supervising officer (G pp154-155).

94.     His dismissive explanation for the assault on his son Uhlan has already been noted.  In relation to his offences of violence while in prison, he justified them as being necessary for survival.  He claimed that he could not recall his convictions or offences of violence or threatened violence in New Zealand.  That is an implausible claim, especially as by his account he was serving happily in the New Zealand army at that time.  He also claimed that four of his convictions were based on false accusations by lying witnesses.  While prosecution witnesses do on occasion give false evidence, it seems unlikely that four convictions for violence can be accounted for in that way, even if the tribunal were at liberty to question the correctness of convictions or sentences, which plainly it is not (Minister for Immigration and Multicultural Affairs v SRT (1991) 91 FCR 234; Minister for Immigration and Multicultural Affairs v Ali (2000) 62 ALD 673, [44]).

95.     On the other hand, that claim is consistent with his strong tendency to portray himself as a victim, both in relation to specific offences for which he blames perjured witnesses, and generally as regards systemic racism and the thoughtlessness of an uncaring mother who brought him to Australia without his consent.  The breach of parole report also notes that “apportioning blame to the victims and/or minimising his actions is evident” (G p155).

96.     He blamed Horsham police for his earliest offences of violence, changes in the laws for criminalising his “clipping” Uhlan's ear, and Australian society for his criminal record generally.

97.     In an earlier case before the tribunal, a psychologist witness expressed the view that an offender’s self-portrayal as a victim is the strongest indicator of likely recidivism.  As no psychologist gave evidence in the present case, it would be inappropriate to treat that proposition as applying here.  Some psychological or psychiatric assessments of the applicant do exist, but it has not proved possible to obtain them because they had been provided to the Department of Corrective Services in confidence (G p9).

98.     Nevertheless, his tendencies to diminish his offences and to blame others for his wrongdoing must be matters of concern, raising as they do the possibility that he may in the future again feel himself justified in resorting to violence.  The 2002 pre-sentence report refers to his “long-standing propensity for violence” and his inability to provide any coherent explanation for his violent behaviour (G p150).  The 2007 breach of parole report refers to his lack of insight into the risk that his choices create, his treatment of attempts to manage and monitor his personal reactions as intrusive and destructive and his insufficient progress as a result of anger management courses (G pp153-154).

99.     As against that, there is some evidence of rehabilitation.  He has completed useful courses while in prison.  There is no evidence of a substance abuse problem.  When released from prison in January 2008 he apparently obtained employment as a rigger.  He seems genuinely committed to helping his son Rhion.

100.   He was actively involved in a kind of mentoring program for younger prisoners and also helped in resolving ethnic tensions within the correctional centre (G p150).  It is noteworthy, however, that notwithstanding those favourable indications and others, he subsequently has gone on to commit further offences of violence, possibly including (although the chronology is not clear from the information in the documents and oral evidence) his most serious offences.

101.   In his discussions with parole officers in 2007, he was observed to have been angry during discussions relating to the alleged new offences, but had controlled his anger and co-operated with efforts to assist him (G p153).  The breach of parole report did not specifically attempt to rate the applicant's risk of recidivism, but drew attention to a number of areas of concern, including lack of insight and honesty, and recommended parole revocation.

102.   At the hearing the applicant was loquacious and somewhat pugnacious in his evidence and submissions.  His manner displayed profound anger, which he kept under control, but he gave the impression that it would take little to trigger an explosive outburst.  Once or twice, without provocation, he raised his voice and became somewhat aggressive.

103.   I bear in mind the expressions of support, including the one from Mr Glenn Ellard (Exhibit A4), who says he has seen an improvement in the applicant's outlook since his most recent release from prison and notes that he found work for himself as a rigger and also organised work for his brother Kevin.  I accept that the applicant has good intentions and believes he can be a productive and law abiding citizen.  His conciliatory role in settling ethnic difficulties in jail and following the assault on his sister Raewyn, when he dissuaded Kevin from violence, is also to be borne in mind.  It does not necessarily follow, however, that because he has in the past calmed violent impulses in others that he is reliably able to do the same for himself.

104.   It would have been useful to have had a recent psychological or psychiatric assessment.  In the absence of expert evidence, however, I am driven to the conclusion, on the basis of his evidence, submissions, demeanour and record that there is a real risk that he will again commit offences of violence.

105.   He says that he is a different person and is now a father, but he was a father when he committed the assault on his son Uhlan that resulted in his being sentenced to imprisonment for six months.

106.   In relation to the protection of the Australian community, the tribunal is also required to consider the question of general deterrence, the likelihood that visa refusal would prevent or inhibit the commission of similar offences by other persons:  Direction No 21 paragraph 2.11.  The deterrent effect of a particular decision is impossible to prove in advance.  The concept can perhaps also be expressed in positive form by saying that if bad behaviour is rewarded, there will be more of it.  That is a principle well known to parents, teachers, managers and most other members of the community.

107.   Its incorporation in Direction No 21 may be simply a reflection of the need for decision-makers to consider the long-term effects of their decisions, not merely the short-term results.  While visa cancellation is not intended as a punishment, para 2.11 of 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.

108.   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”.

109.   General deterrence cannot be treated as a decisive or even a major factor, but in a case such as the present one, it is a consideration that is relevant to the protection of the Australian community.

Expectations of the Australian Community

110.   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.

…

111.   It has long been accepted on all sides in Australia that migration must be conducted in a legally regulated manner.  There are many reasons for that, including the obvious point, as made by the Swedish economist Johan Norberg, that a welfare state cannot have open borders (“In defence of global liberalism”, Policy, winter 2006, 43, 47).  Historical and other reasons have also been advanced: Re Zhou and Minister for Immigration and Citizenship [2007] AATA 1766 at [90] to [99].

112.   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).

113.   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).

114.   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)).

115.   Some members of the community would undoubtedly have compassion for the applicant as he has lived in Australia since probably 1977, apart from his three years in the New Zealand army.  On balance, however, the majority of the community would be likely to expect that non-citizens who repeatedly commit serious acts of violence, especially against children, even after being punished repeatedly by the justice system, should not be allowed to remain members of its community.

The Best Interests of the Child

116.   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)).

117.   The applicant has one Australian-born child under the age of 18, Rhion Taurua, born 21 June 1992.  The applicant was not sure of Rhion's date of birth, but the date he gave if incorrect, was only wrong by about a month.  His other son Uhlan is now aged 18.

118.   Rhion could not remember the last time he saw his father before January 2008, but thought it was some eight years earlier, when he was aged six or seven.  It appears that Rhion’s mother did not want him to have any contact with his father until recently.

119.   Rhion knows little about his father, except his criminal record, but made strenuous efforts to locate him and arrange a meeting in the months before January 2008.  It was then arranged that they spend a week together, a time that they both greatly enjoyed.  Plans for Rhion to stay with his father for a time were interrupted by the applicant’s detention at Villawood.

120.   Although at the directions hearing, and in the district registrar’s outreach contacts, the applicant was repeatedly reminded of the importance of lodging witness statements for all those he intended to use as witnesses to support his case, he did not ask either of his sons to provide statements.  He said at the hearing that he did not ask Rhion because he had been regarded as slow at school and could not write a statement himself.  He had therefore asked Rhion's mother to write and sign a statement on his behalf, and that, as was noted above, was treated as Rhion’s evidence in chief.  He did not explain why he had not asked Uhlan.

121.   The tribunal assumes, and Direction No 21 requires, that a child's best interests will be served if the child remains with its parents.  That presumption can be rebutted if there is evidence of countervailing considerations, such as evidence of abuse.

122.   There is no suggestion that Rhion has ever been the victim of abuse by the applicant, but his brother Uhlan most certainly was, as were Julie White’s children.  The applicant’s attempts to deny or justify those offences give no confidence that if Rhion were to do something of which the applicant disapproved, a violent offence might not be committed.  As he is a large and very powerful man, he could cause serious injury.  Stewart AJ judged that the applicant has “an explosive temper” and said “He must curb it before he kills someone” (G p144).  While I accept that the applicant apparently has nothing but good intentions in relation to Rhion, the possible consequences of a relapse into violence cannot be overlooked.

123.   The relationship to date has not been a close one and the evidence relates more to the prospect of developing a better one in the future, which is normally to be given relatively less weight than the proven history of a relationship based on past conduct (Direction No 21, paragraph 2.16(b)).

124.   Some degree of contact would probably be beneficial for Rhion, but I am not convinced that it is in his best interests to spend an extended period with him.  The applicant dismisses the possibility of maintaining contact by telephone, saying that Rhion could not phone him as he is not rich and could not afford to do so.  It is not necessary to be rich to telephone New Zealand.

125.   On balance I am not satisfied that it would be in Rhion’s best interests to set aside the decision under review and I think the usual presumption is rebutted by the evidence.

126.   Also to be considered is Jay Ellard, the applicant's 17 year-old nephew.  Although he has met the applicant on a few occasions, the applicant has never been a big part of his life, but Jay would like to have the opportunity of knowing him better (Exhibit A3).  It is plain from the evidence that the applicant’s relationship with Jay is a tenuous one, and in any event Jay will turn 18 within a period of months.  It is unlikely that Jay’s best interests will be harmed if the decision under review is affirmed.

127.   The applicant also claims to have relationships with up to 200 other minors who call him “uncle”.  The evidence concerning those relationships is minimal and vague.  It does not merit significant weight. 

128.   I am satisfied that this consideration does not weigh against visa cancellation, or at best that it does not do so significantly.

Other considerations

129.   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.

130.   The applicant does not appear to have business or other ties to the Australian community that would be disrupted if his visa were cancelled.  He has many relatives in Australia, including his younger sister Stacey Ellard (see Exhibit A5).  He has not spent a great deal of time with Stacey or her family, and relations with other family members do not appear to be close or sustained.  Other than as detailed above, none of them have provided statements or other evidence, including his son Uhlan.  He did not explain why he had not asked Uhlan to make a statement.

131.   He also has family in New Zealand but says he does not know who they are.  Some emotional hardship would be caused to Stacey, Jay and possibly Uhlan, but maintaining contact with relatives in New Zealand, including by visiting them there, is not unduly difficult.

132.   The fact that the applicant has been in Australia since about the age of 14 gives him some compassionate claims, but on the other hand he chose to return to New Zealand in 1980 to join the army there and in fact wishes he had not quit the service.

133.   There is some evidence of rehabilitation, as noted above, but it is insufficient to enable the tribunal to be satisfied that the applicant is no longer a person from whom the community needs protection.

134.   I conclude that the considerations of community protection and expectations outweigh the best interests of the child and the other considerations in this case.

135.   The decision under review is affirmed.

I certify that the 135 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:  6, 7 and 8 May 2008
Date of Decision:  16 May 2008
Solicitor for the Applicant:                  Self-represented
Solicitor for the Respondent:             Mr T Eteuati, Clayton Utz