Tawhi and Minister for Immigration and Border Protection

[2014] AATA 74

[2014] AATA 74  

Division	General Administrative Division
File Number	2013/6240
Re	Haimona Tawhi
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Deputy President S D Hotop
Date	18 February 2014
Place	Perth

The decision under review is affirmed.

...(Sgd) S D Hotop......................

S D Hotop
               Deputy President

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – visa – cancellation of visa – applicant a citizen of New Zealand – applicant has lived in Australia from December 2009 when aged 23 years – applicant convicted of sexual offences against child aged 11 in 2012 – applicant sentenced to 4 years’ imprisonment – applicant does not pass character test – discretion to cancel visa – primary consideration of protection of Australian community outweighs other relevant primary considerations and other relevant  considerations – risk of future serious harm to Australian community by applicant unacceptable – preferable decision is that visa be cancelled – decision under review affirmed     

LEGISLATION

Migration Act 1958 (Cth), s 501(2)

Direction no 55 – Visa refusal and cancellation under s 501

REASONS FOR DECISION

Deputy President S D Hotop

18 February 2014

Introduction

1. Haimona Tawhi (“the applicant”) has applied to the Tribunal for review of a decision of a delegate of the Minister for Immigration and Border Protection (“the respondent”), dated 26 June 2013, cancelling his Class TY Subclass 444 Special Category (Temporary) visa (“the visa”) under s 501(2) of the Migration Act 1958 (Cth) (“the Act”).

2. Because of doubt regarding the receipt by the applicant of formal notification of the abovementioned decision, it was deemed appropriate by the Department of Immigration and Border Protection that the applicant be “re-notified” of that decision.  Accordingly, a formal notice of that decision, dated 18 November 2013, was sent to the applicant by registered post.

   The Factual Background

3. The applicant was born in August 1986 in New Zealand and is a citizen of New Zealand.

4. He first arrived in Australia on 14 December 2009 and was granted the visa on arrival.  He has not since departed Australia.

5. The applicant, following his pleas of guilty, was convicted of 3 counts of sexual penetration of a child under the age of 13 years and 6 counts of indecent dealing with a child under the age of 13 years.  On 22 May 2012 he was sentenced to various terms of imprisonment (ranging from 2 years’ imprisonment to 6 months’ imprisonment) for those offences, comprising a total effective sentence of 4 years’ imprisonment, commencing on 7 January 2012.  He was made eligible for parole.

6. On 26 June 2013 a delegate of the respondent cancelled the visa under s 501(2) of the Act.

   The Relevant Legislation

7. Section 501(2) of the Act provides:

   “ The Minister may cancel a visa that has been granted to a person if:

   (a)the Minister reasonably suspects that the person does not pass the character test; and

   (b)the person does not satisfy the Minister that the person passes the character test.”

   The “character test” is defined in s 501(6) of the Act which specifies various alternative circumstances in which a person does not pass the “character test” within the meaning of that section. In the present case, a relevant circumstance is that specified in para (a) of s 501(6), namely, “the person has a substantial criminal record (as defined by subsection (7))”. Section 501(7) specifies five alternative circumstances in which, for the purposes of the “character test”, a person has a “substantial criminal record”. In the present case, a relevant circumstance is that specified in para (c) of s 501(7), namely, “the person has been sentenced to a term of imprisonment of 12 months or more”.

   The Ministerial Direction

8. In reviewing the delegate’s decision in this matter pursuant to s 500 of the Act, the Tribunal is required, by s 499(2A) of the Act, to comply with a direction given by the respondent under s 499(1) of the Act. The relevant direction, as presently in force, namely, Direction no 55 – Visa refusal and cancellation under s 501 (“the Direction”), was given by the respondent on 28 July 2012 and commenced on 1 September 2012.

9. Section 1 of the Direction includes (in para 6) a Preamble which contains (inter alia) “general guidance” for decision-makers acting under s 501 of the Act in the following terms:

   “ 6.2     General Guidance

   (1)    The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.  The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

   …

   (3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizens [sic] visa under section 501. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B of this Direction.”

The principles referred to in para 6.2 are set out in para 6.3 as follows:

“ 6.3     Principles

(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia.  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)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable.  In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

(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.  However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

(5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

(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.”

1. Section 2 of the Direction, which is headed “Exercising the Discretion”, commences as follows:

   “ 7       How to exercise the discretion

   (1)    Informed by the principles in paragraph 6.3 above, a decision-maker:

   (a)must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; and

   (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.

   8Taking the relevant considerations into account

   (1)  Decision-makers must take into account the primary and other considerations relevant to the individual case, noting that there are differing considerations for visa holders and visa applicants as articulated in Parts A and B.  Separating the considerations for visa holders and visa applicants recognises that persons holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.

   (2)  In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

   (3)  Both primary and other considerations may weigh in favour of, or against, refusal or cancellation of the visa.

   (4)  Primary considerations should generally be given greater weight than the other considerations.

   (5)  One or more primary considerations may outweigh other primary considerations.”

   Part A (comprising paras 9 and 10) then refers to the “primary considerations” and “other considerations” which, where relevant, must be taken into account by a decision-maker in deciding whether to cancel a visa under s 501(2) of the Act. Those considerations will be relevantly referred to in detail later in these reasons.

   The Evidence

2. The evidence before the Tribunal comprised:

   ·the “G Documents” (G1–G18, pp 1–97) lodged by the respondent on 18 December 2013 (Exhibit R1);

   ·Exhibits A1 – A6 tendered by the applicant; and

   ·the oral evidence of the applicant.

   The Applicant’s Criminal Record

3. The applicant’s recorded criminal history in New Zealand and in Australia is as follows:

   New Zealand

Court	Result Date	Offence Date	Offence Description	Result
Napier DC	19/12/2006	22/08/2006	Indecently Assaults Female 12-16	Convicted and Sentenced: Reparation – $200 / Community Work (SA) – 150 hours
Hastings DC	16/08/2007	06/07/2007	Breach of Community Work	Convicted and Discharged: Final Warning
Hastings DC	16/08/2007	01/08/2007	Disorderly Behaviour – Likely Cause Violence	Convicted and Sentenced: Fine – $100, Court Costs –$130
Hastings DC	03/04/2008	25/02/2008	Unlawfully Carry / Possess Firearm	Convicted and Sentenced: Community Work (SA) – 120 hours
Hastings DC	03/04/08	25/02/2008	Cultivate Cannabis	Convicted and Sentenced: Community Work (SA) – 120 hours

(G13)

Australia

Court	Court Date	Offence	Court Result
Rockingham Magistrates Court	12 Oct 2011	Unlicensed Vehicle (Permit Use)	Fined $100
Perth District Court of Western Australia	22 May 12	Sexual Penetration of a Child Under 13 Sexual Penetration of a Child Under 13 Sexual Penetration of a Child Under 13 Indecent Dealings With Child Under 13 Years (3 counts) Indecent Dealings With Child Under 13 Years (2 counts) Indecent Dealings With Child Under 13 Years	Imprisonment 18 months Imprisonment 2 Years cumulative Imprisonment 18 months concurrent On each count: Imprisonment 12 months concurrent On each count: Imprisonment 9 months concurrent Imprisonment 6 months concurrent Total sentence 4 years from 7/1/12

(G10, p 71)

The Offences for which the Applicant was Sentenced on 22 May 2012

1. The offences committed by the applicant, for which he was sentenced on 22 May 2012, are described in a Department of Corrective Services Immigration Report, dated 30 May 2013, as follows:

   “ 1.3     Current Offence Details

   Tawhi is a 26 year old male serving a sentence of 4 years imprisonment for the offences listed above.  Tawhi was sentenced on 22/05/2012 with a backdated term to commence 07/01/2012.  Details of the offences are taken from the Statement of Material Facts, Judges Sentencing Remarks and the Pre Sentence Report as follows:

   The victim, who is 11 years old, is the second cousin of Tawhi.  On a regular basis, the victim stayed overnight at Tawhi’s residence … Between the dates of 01/05/2011 and 31/07/2011 Tawhi placed his hand on the victim’s groin/vagina area on the outside of her clothing and rubbed her for approximately five minutes.  Between 01/11/2011 and 31/12/2011 Tawhi approached the victim who was asleep on a lounge.  He began fondling her groin area and the victim pushed his hand away.  Tawhi moved himself to the other side of the lounge where the victim was laying and using his other hand, placed it down the victim [sic] underwear.  During this process he attempted to place his fingers inside the victim’s vagina but was pushed away by the victim.  Using one of his hands, Tawhi placed it on the victim’s top outside her clothing.  The victims bra was removed and Tawhi stimulated her nipples using his tongue.  Whilst stimulating the victim’s nipples, Tawhi allowed the victim to place her hand on his penis/scrotum and stimulate the same.  The victim’s panties were removed and Tawhi performed cunnilingus on the victim.  The offences detailed occurred over a period of 20/30 minutes.  On the evening of 06/01/2012, at about midnight, the victim was asleep on a lounge.  Tawhi approached the victim and placed his hand between her legs on the outside of a blanket.  The victim was startled and pushed the blanket away.  With the blanket out of the way, Tawhi placed his hands on the victim’s breast and groin area touching her through the outside of her clothing. The victim’s bra was removed and using his hands he fondled her exposed breasts.  Tawhi placed his hand down the inside of the victim’s underwear.  Tawhi attempted to insert his finger inside the victim’s vagina but was pushed away by the victim.  The victim’s auntie awoke and disturbed Tawhi who decamped from the house.”  (G16, pp 90–91)

   The Sentencing Remarks of Wisbey DCJ

2. When sentencing the applicant on 22 May 2012 for the abovementioned offences, Wisbey DCJ said:

   “ WISBEY DCJ:   You may remain seated, Mr Tawhi.  You’ve been convicted of [sic] your own confession of the nine counts in respect of which you have presented an indictment; they being nine counts of sexual offences committed against the plaintiff who was related to you and who was at the relevant time approximately 11 years old. The offences occurred between – or were pleaded to have occurred between 30 April 2011 and 7 January 2012, although it appears from what your counsel said that the offending conduct probably commenced in about June 2011.

   The offences include three of sexual penetration of a child under 13 years which carries a maximum penalty of 20 years’ imprisonment and six counts of indecent dealing with a child under 13 years which carries a maximum penalty of 10 years’ imprisonment. And those penalty provisions of course were set by the Parliament on behalf of the community to mark the seriousness of this type of criminality. Sexual offending against the young is one of the most serious forms of criminality in the Criminal Code and the intention of the penalty provisions is to provide the young with protection from people who might take advantage of them.

   The facts relating to your criminality are set out in some detail in the amended statement of material facts on the brief for sentence and those facts have been outlined by the prosecutor a short time ago.  There have [sic] been no exception taken as to the accuracy of those facts, a substantial part of which were provided by yourself, I adopt those facts for sentencing purposes and incorporate them in these sentencing remarks.

   Now, the position is of course that you were residing in the same house as the complainant that there was, because of your age relationship, and her vulnerability, a position of trust and you breached that trust in a very significant way by touching her on occasions on the general [sic] area, external to her clothing, digitally penetrating her, performing cunnilingus and touching and licking her breasts. And it is on those facts that you’re to be sentenced.

   The Sentencing Act requires that I impose a penalty which matches the seriousness of the offending behaviour and I’m to gauge that seriousness by taking into account the statutory penalty for the offending behaviour to which I’ve made reference, the circumstances relating to the offending behaviour which I’ve also made brief reference, any aggravating circumstances and any mitigating circumstances.

   Essentially the primary aggravating circumstances contained within the counts themselves, that is, the age of the person offended against and of course it is also an aggravating circumstances [sic] that essentially you were in a position of responsibility which you breached.  The court is directed not to impose a term of immediate imprisonment unless the seriousness of the offending behaviour and/or the protection of the community make imprisonment imperative.

   It needs to be said and indeed it’s accepted by you that this offending behaviour is of such seriousness and the necessity to provide the young in the community with protection from persons who might take advantage of them by sentencing example is such that imprisonment to be immediately served is the only disposition which appropriately responds to the criminality.  It’s the only disposition which properly addresses the requirements for general and specific deterrence and to provide what the community would regard as appropriate punishment for this type of behaviour.

   In determining the term of imprisonment which responds to the criminality, it is of course necessary to have regard to matters personal to you.  In that respect, I’ve had the detailed comments of your counsel and been provided with a pre-sentence report and psychological report and that information gives me considerable insight into your upbringing and your social and vocational situation and I take those matters into account.

   It appears that you have had a difficult childhood, a dysfunctional upbringing, an upbringing where there was a lack of emotional – appropriate emotional connection, involvement and support with your parents.  And that has no doubt left you in a position where there was your part of [sic] feeling of a lack of belonging and that has no doubt had [sic] been disadvantageous to your character.  It is said that you were abused sexually whilst a young child and regrettably the statistics demonstrate that that also is catalytic of a person behaving as you did.

   You apparently have engaged in substance abuse including the ingestion of amphetamine and there is a suggestion that has played a part in the criminality.  That may be so and may provide some explanation but of course does not provide any excuse for the criminality.

   You’re 25 years old, having been born on … August 1986.  You have pleaded guilty at the earliest opportunity and as I’ve already remarked, some of the counts in the indictment are a direct result of information which you provided to the police.  You have assisted the police in this matter from the very beginning and pleas of guilty in offences of this nature are extremely valuable pleas because they save the complainant the humiliation of being required to go over the facts and give evidence about the situation, and that is indeed likely to be harmful to the complainant.

   So as I say, your pleas are extremely valuable and you are entitled to an appropriate discount for those pleas.  The pleas also demonstrate recognition on your part of the wrongfulness of your conduct and can be taken as an indication of remorse.

   Reference has been made to the fact that you have a previous conviction for like behaviour.  That is not an aggravating circumstance, but it does demonstrate that what occurred on these occasions was not some isolated aberration.  Indeed, the number of offences and the period of time over which they occurred would have excluded that in any event.

   As I have already indicated, there can be no doubt that imprisonment to be immediately served is the only appropriate disposition.  In the circumstances, in my view, the terms of imprisonment which appropriately respond to each count in the indictment, having made a significant reduction for your plea and cooperation, are as follows.

   Count 1, six months’ imprisonment.

   Count 2, nine months’ imprisonment.

   Count 3, 18 months’ imprisonment.

   Count 4, 12 months’ imprisonment.

   Count 5, 12 months’ imprisonment.

   Count 6, two years’ imprisonment.

   Count 7, 9 months’ imprisonment.

   Count 8, 12 months’ imprisonment.

   And count 9, 18 months’ imprisonment.

   Although there are nine offences, they really relate to three occasions of offending, the first occasion being related to count 1, the second occasion being an occasion where the offences alleged in counts 2 to 6 occurred, and the third occasion being an occasion when the offences identified in counts 7 to 9 occurred.

   It is of course necessary to have proper regard not only to your age, but to the issue of totality.  And in the circumstances, I structure the sentence as follows:  count 6, the two years imposed in respect of count 6 and the 18 months imposed in respect of count 9 will be cumulative with the six months imposed in respect of count 1.  All other terms will be concurrent with count 1.  That will give an effective head term of four years’ imprisonment.

   That term will be deemed to have commenced on 7 January 2012 to give credit for time spent in custody and there’ll be a declaration of parole eligibility, which means that you’ll be eligible for parole consideration at the expiration of two years of the term, that is, at the expiration of 50 per cent of the term.”  (G11, pp 74–77)

   The Applicant’s Evidence

1. The applicant tendered in evidence his statement, dated 30 January 2014, and he confirmed that its contents are true and correct.  That statement is as follows:

   “ I would like to add to my application some information that I feel is relevant to my case that I previously haven’t considered.  Being in prison as well as participating in programs has made it very difficult for me in preparing an appeal to not have my visa cancelled.  Now it is the appeals court I am still having problems getting the information to you for your consideration.  I would therefore like to ask you to further consider the following supportive information that is relevant to the affects of my being deported to New Zealand.

   ·In regards to the incorrect information that I provided regarding my criminal history, when I filed out the document I was on the aircraft heading to Australia.  I misunderstood the question as I thought that it was referring to any time serve in prison, which I hadn’t at that time.  I obviously overlooked the question and I am truly sorry for misleading anybody, as it was not my intention.

   ·As already stated to the immigration department I don’t have any links to the New Zealand community as all of my family are here in Australia.  My parents, mother in-law, partner, children, cousins, aunties and uncles are all here in Australia.  I only have distant family in New Zealand that I don’t have anything to do with at all, in fact I don’t know them.

   ·The reasons I came to Australia was due to all of my family coming here including my partners mother and that there is no employment options back in New Zealand and as a result I don’t have any work knowledge of New Zealand as it is very limited.

   ·If I was to be sent back to new Zealand my life will be in jeopardy as I have serious problems with the gangs over there.  These gangs operate outside of the law and as a result my life will be at serious risk.

   I will not only be put in harms way, I will be severely disadvantaged if I am sent back to a place where I don’t have any family support or employment options.

   My children may never see their father again, nor will my partner Stephanie Bartlett, mother, father, my two sisters, cousins, aunties, uncles and my mother in-law.

   All of my family will suffer either extreme emotional and or financial hardship if I am deported.

   ·As a result of my offending my relationship with my partner Stephanie Bartlett has suffered although we have been rebuilding and have become a lot closer especially since I have been more open and honest with her about my feelings and emotions.  Stephanie has visited me very often and has been very supportive of me, I have maintained regular phone and mail contact with her and my children as well since I have been in custody.

   My partner and children reside with my mother as will I if I am allowed to stay in Australia.  If I am deported they will loose any support that I can offer them being emotional, physical or financially and I will become a distant memory to them.

   ·I have employment here in Australia where I will be able to provide the financial support that my family requires of me.  Mr B… W… who works for WA Shot Crete has offered me fulltime employment back with him once I am released from  prison.

   ·Serious nature of the offence and the safety of the Australian community.  I am aware that I have similar charges back in New Zealand, I didn’t receive any prison sentence for the charges and never did any programs to change my behaviour, and they weren’t available to me.  I was never given the opportunity like I have had here to rehabilitate myself.

   I have been able to participate in several drug and alcohol programs whilst I have been in custody and I now have better understanding in regards to my substance use.

   Since completing in the Drug and Alcohol, Green Light House and Pathways programs I am now more aware of my thoughts and thinking about my substance use and now have the skills in place to get myself through any urges or cravings that I may have in the future.

   As substance use was a major contributing factor that assisted in my distorted thinking that led up to me committing my offence I have very strong negative feelings towards substance use and will be abstinent from alcohol and drug use in my future.

   During the sexual offenders medium program that I participated in I was able to see clearly where my distorted thinking came stemmed from and I have been able to create a viable community safety plan.  As a result of all of the skills and tools that I have learnt from all of my programs I honestly believe that my offending behaviour is now far behind me and that I no longer pose a threat or risk to the Australian community.

   I am truly sorry and remorseful for my actions against my victims, my behaviour was disgusting and shameful.

   I plead with you to allow me to stay in Australia and to allow me to prove to the community that I am a changed man and that I am no longer a threat to the community.”  [sic] (Exhibit A3)

   [The Tribunal notes that the document referred to in the first dot point paragraph in the applicant’s statement is the Incoming Passenger Card, completed by the applicant on 14 December 2009 for the purpose of his entry into Australia, in which he indicated that (inter alia) he did not have any “criminal convictions”.  (G18)]

2. In cross-examination the applicant gave evidence to the following effect:

   ·he grew up in New Zealand and attended school there up to Year 10;

   ·after leaving school he “worked at many jobs, jumping from job to job” – he was a metalworker for about 2 years and then did wool factory work;

   ·the offence of indecently assaulting a female aged 12–16 of which he was convicted in 2006 in New Zealand was committed against his partner’s younger sister who was then aged 16 years and involved his indecently touching her legs and groin without her consent while she was asleep;

   ·he did this to her on 3 separate occasions over a period of a few months in 2005;

   ·in 2007 he was convicted of disorderly behaviour involving his hitting his partner and he was subsequently ordered by the Family Court to undertake a 6-month Family Violence Course, and he completed that course;

   ·the offence of unlawfully possessing a firearm of which he was convicted in 2008 involved a replica, “more like an ornament”, which the police found when they raided his house looking for evidence of cannabis cultivation;

   ·he was also convicted of cultivating cannabis in 2008;

   ·he was a drug addict from the age of 12, using cannabis;

   ·in 2008 he also “dabbled in ecstasy strips”;

   ·about one year after moving to Australia he “started getting hooked into methamphetamines”;

   ·the offences he committed against his 11-year-old second cousin were begun about 18 months after he arrived in Australia and were committed over the period June 2011 to January 2012;

   ·those offences were committed during the period when he was using methamphetamines and cannabis, and was a heavy user of pornography;

   ·when he committed those offences he was “not too sure what was going on in [his] mind” – he did not know “how to cope with [himself]” – at the time he thought that what he was doing was “alright”;

   ·his partner and child were asleep at the time;

   ·on the last occasion he was “caught” by the victim’s aunt (his younger sister);

   ·had he not been “caught” he would have continued to act in that way;

   ·he was told to leave the house and he then went to the police because “it was the right thing to do”, he had nowhere to go, and he “wanted to stand up” for what he had done, and he needed help;

   ·he is happy that his younger sister “had the courage to stand up, knowing that there was something wrong”;

   ·a court order has been made that he have no contact with the victim;

   ·his partner is also from New Zealand where she grew up and went to school, and their older child was born in New Zealand;

   ·his partner does not wish to return to New Zealand both for her own future and for the children’s future;

   ·his mother owns a property in Rotorua, New Zealand which is rented out;

   ·he could not afford to pay rent to his mother to live in that house, whereas in Perth he could stay with his mother in her rented house;

   ·there would be no work for him in New Zealand;

   ·if he was returned to New Zealand his safety would be at risk from the Mongrel Mob gang because of the offence of indecent assault which he committed against his partner’s younger sister.

   Additional Evidence

3. Further material which is in evidence will be referred to later in these reasons.

   Analysis

   Application of the “character test”

4. By reason of the fact that the applicant was, on 22 May 2012, sentenced to a total effective term of 4 years’ imprisonment (including 6 sentences of imprisonment for 12 months or more), the Tribunal finds that the applicant has a “substantial criminal record”, as defined in s 501(7) of the Act, and that, by reason of s 501(6)(a) of the Act, he does not pass the “character test”.

5. It follows from that finding that the discretionary power to cancel the visa, pursuant to s 501(2) of the Act, is enlivened in this case.

   Should the discretionary power to cancel the visa be exercised in this case?

   The primary considerations

6. Paragraph 9 of the Direction states as follows:

   “ 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.”

   Protection of the Australian community from criminal or other serious conduct

7. Paragraph 9.1 of the Direction states as follows:

   “ 9.1     Protection of the Australian community

   (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.

   9.1.1  The nature and seriousness of the conduct

   (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 (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

   (c) Where the person is in Australia, that a crime committed while the person was in immigration detention; during an escape from immigration detention; or after the person escaped from immigration detention, but before the person was taken into immigration detention again is serious, as is an offence against section 197A of the Act;

   (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;

   (g)The cumulative effect of repeated offending;

   (h)   Whether the person has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

   (i)    Whether the person has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the person’s migration status (noting that the absence of a warning should not be considered to be in the person’s favour);

   (j)    Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

   9.1.2 The risk to the Australian community should the person commit further offences or engage in other serious conduct

   (1)In considering whether the person represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, 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).”

8. The 9 offences which the applicant committed over the period from May 2011 to January 2012, and for which he was sentenced on 22 May 2012, fall squarely within a category of offences which, having regard to para 9.1.1(1) of the Direction, are to be regarded as very serious – namely, sexual offences committed against an 11-year-old child.  The applicant did not dispute that that criminal offending on his part was very serious.

9. As regards the “nature of the harm to individuals or the Australian community should the [applicant] engage in further criminal or other serious conduct” (para 9.1.2(1)(a) of the Direction), there can be no dispute that, should the applicant in the future engage in the kind of criminal conduct referred to above, for which he was sentenced on 22 May 2012, the nature of the harm to the victim(s) would be very likely to involve, at the least, substantial emotional and psychological damage.  That prospect of future harm to individuals, and to the Australian community generally, must also be regarded as a very serious matter for the purposes of para 9.1 of the Direction.

10. As regards the “likelihood of the [applicant] engaging in further criminal or other serious conduct” (para 9.1.2(1)(b) of the Direction), there is authoritative objective evidence before the Tribunal regarding the degree of risk of the applicant’s reoffending and the extent of rehabilitation achieved by him to date.

11. That evidence primarily comprises a redacted copy of the Program Completion Report, dated 3 December 2013, regarding the applicant’s participation in the Sex Offending Medium Program at Bunbury Regional Prison from 19 March 2013 to 24 September 2013 (Exhibit A6).  That report commences as follows:

    “ Introduction

    The Medium Sex Offender Program is a 115 hour treatment program.  This program targets evidence based criminogenic needs of sexual offenders in a group format.  This report is based on Mr Tawhi’s participation in a Medium Sex Offender Program and other documentation on his Offender Services file.

    Risk

    …

    The Static 99 is an internationally recognised risk assessment measure that combines 10 static (unchanging) risk factors that have been shown to be associated with increased risk of re-offence and has been used to estimate Mr Tawhi’s risk of sexual re-offending.  Mr Tawhi’s Static 99 score places him in the medium-low risk category.  Based on a sample of sex offenders from Canada and the UK upon which the Static 99 was developed, 1 out of 10 offenders who received a similar score to Mr Tawhi were reconvicted of a sexual offence within a 5 year period.

    Current Offence Details

    Mr Tawhi was convicted in the Perth District Court of Western Australia on three counts Sexual Penetration of a Child Under 13 years and seven [sic] counts Indecent Dealings with Child Under 13 years and received a combined sentence of four years imprisonment with parole.

    Offending History

    Mr Tawhi has a limited generalist offence history which includes offences for cannabis use, fire arms possession, disorderly behaviour and breach of community orders.  He has prior conviction for Indecently Assaults females [sic].

    …

    Understanding of Offence and Risk

    During the program, Mr Tawhi was required to participate in several exercises which include a life history, background and immediate factors.  These exercises highlight relevant criminogenic factors which research suggests predicts reoffending but are potentially changeable.  From exploration in treatment identified criminogenic targets for Mr Tawhi include: Attitudes/cognitions (Child abuse supportive beliefs, seeing children as sexual beings, men should dominate/control women), Self regulation (poor coping/problem solving, emotional dysregulation), Relationship problems (intimacy deficits, lack of relationship skills, emotional loneliness), and Sexual issues (poverty of sexual knowledge, sexual preoccupation).  In addition, whilst not criminogenic, it was considered salient to address Self esteem, as low self esteem appeared to reduce Mr Tawhi’s ability to adequately make changes required to address criminogenic factors.”

    The report then addressed the applicant’s participation in the abovementioned exercises, and continues:

    “ Self Management

    This section details what is recognised as key treatment objectives in the treatment of Sexual Offenders.  A Self Management Plan (SMP) was constructed during the later stages of the program.  This identifies criminogenic risk factors and coping strategies which facilitates the management of risk situations.  Mr Tawhi is listed for possible deportation, however, given the uncertainty he has elected to focus his SMP on residing in Australia.

    Intimacy and Sexuality

    From treatment, Mr Tawhi developed a SMP to assist him in developing greater emotional and sexual intimacy in his relationships.  He identified in treatment his past lack of intimacy in relationships as fundamentally detrimental and linked to his offence decisions.

    …

    … While his progress is noted his capacity to identify and share his emotions remains at the early stage of development.  For example, he was observed while under stress to relapse in unhelpful relationship behaviour.  For example, withdraw emotionally and physically and ruminate about his concerns. To his credit when encouraged by the group he was eventually able to sharing [sic] his feelings and problem solve.  If paroled ongoing support via his CCO to assist him in emotional awareness and expression appears prudent.

    Mr Tawhi expressed shame and remorse for his sexual offences and acknowledged understanding of his breaches of trust and boundaries.  His SMP acknowledges his need to reduce his sexual pre occupation, however, at present he only reports an intent to reduce his exposure to pornography.  He noted in the past equating sex with intimacy and only experiencing intimacy and affection when being sexual.  His awareness now encourages gaining intimacy through more appropriate means such as healthy relationships …  He has developed cognitive scripts that acknowledge the harm of sexual abuse and the consequences of that behaviour on all concerned  He has identified his need for clear boundaries in his life, although his SMP remains unspecific regarding being alone with children.  Consequently, if paroled, it is recommended that no unsupervised? [sic] contact with children should be a condition for parole.  Mr Tawhi has identified past intimacy deficits as salient in his offending and indicated emotional loneliness and need for intimacy has resulted in him seeking sexual intimacy through a child.  His plans rely on developing intimacy appropriately and promoting health [sic] sexual boundaries through assertive, honest and open communication.  Support via his CCO if paroled to assist Mr Tawhi monitor his emotions and continue to develop his SMP to ensure he meets his intimacy and sexual needs appropriately.

    Coping Strategies and Emotional Management

    From treatment Mr Tawhi identified emotional management and poor coping as salient to his past offence decisions.  As noted in the self regulation section of the report prior to offending Mr Tawhi was experiencing emotional turmoil and implementing maladaptive coping strategies to cope with his issues. …  He noted issues of low self esteem, generalised anxiety, trust issues, fear of rejection/abandonment, and underlying negative attitude to females.  To cope Mr Tawhi reported using avoidance copings [sic] strategies eg illicit substances, isolating himself, and sexual fantasy/sexual pre occupation and eventually sexual offending.  In addition he disclosed behaviours such as ruminating over his situation, feeling victimised, externalising blame for his problems.

    …

    …  He has identified external signs of poor coping such as over eating, poor hygiene/grooming, using illicit substances, weight gain, volatile emotional responses (anger), using pornography, refusing to listen to others, and grooming behaviour.  Internal signs of poor coping include negative thinking, feeling angry, wanting to withdraw from people, and unhealthy thoughts about children.  To cope better when released Mr Tawhi intends to have a balanced life style with meaningful employment, develop new pro social friendships, engage in sporting activities and practise positive thinking.  He intends to set clear boundaries around pornography use, and being alone with children to reduce his chance of relapse.  He intends to use consequential thinking and problem solving skills to reduce his propensity for poor decisions and unwanted consequences.  In treatment, Mr Tawhi was observed developing new ways to cope.  During treatment he was initially overwhelmed with emotions associated with his prospect of deportation.  In group he practised expressing his emotions and frustrations which resulted in lessening of negative feelings.  He was encouraged to practise self soothing strategies in group (eg breathing exercises) which appeared to help him relax.  Towards the end of treatment Mr Tawhi disclosed managing his emotions associated with deportation by sitting with his emotions initially, withdrawing a short time, then discussing these issues with his support people which allowed him time to develop confidence and manage his problems more pro socially.  Additional support in this area via counsellor or CCO if paroled would be appropriate.

    Attitudes and Beliefs

    Mr Tawhi noted past attitudes and beliefs encouraged unhealthy relationships, poor emotional management and maladaptive coping strategies (ref sections above).  In treatment, Mr Tawhi acknowledged much regret for offending behaviour …  He identified the antecedence to much of his unhelpful attitudes and beliefs were associated with his sense of abandonment as a child, and subsequent emotional neglect, and negative experiences at school. …  He recognised his own low self esteem and past insecure attachment encouraged unhelpful thinking about females and negative expectations of deceit. …  In the empathy section he has demonstrated an awareness of the negative impact child sexual abuse has on victims which should allow him to challenge past beliefs about child sexual abuse being normal.  In treatment his interaction with facilitators and other group members was considered appropriate, respectful and emotionally open.  Initially in treatment Mr Tawhi expressed anti social attitudes towards prison staff, however, as treatment continued his skills in communication appeared to improve resulting in less conflict and better managed negotiations with the department staff.

    Understanding Empathy

    …

    …  Mr Tawhi expressed remorse and shame for his behaviour throughout treatment.  In group he was observed to be empathic with others [sic] participants and he was viewed as being emotionally aware, able to identify others emotions congruently and verbalise appropriate validating feedback when appropriate.

    Substance Use

    Mr Tawhi acknowledged substance abuse as a factor in his anti social and criminal behaviour.  He reported using cannabis from a young age and use of substances to cope with emotional and relationships difficulties.  His SMP acknowledges his need to abstain from all future substance use to reduce his propensity to relapse into criminal and or anti social behaviour.  While his plan does not offer specific details on abstaining from illicit substances he has developed strategies to reduce the need for stress management.  These strategies include positive relationships, open and assertive communication to reduce conflict and stress and to seek counselling or advice if he noted problems developing.  He intends to have a balanced life that promotes health, physical and social activity.  His plan also intends to avoid past anti social peers to reduce his likely hood [sic] of being tempted or encourage back into substance abuse. Mr Tawhi has been booked to attend a Pathways Intensive Substance Use Program (prison based) quarter 4 2013.  Completion of this program should assist in him maintaining a planned abstinence for illicit substances.

    Self Esteem

    Mr Tawhi noted low self esteem as a constant throughout his life and considered this as salient in the way he viewed the world, relationships and himself.  It is suggested that as a function of low self esteem Mr Tawhi tended to be a loner, not trusting, and paranoid about how he is perceived and treated.  He acknowledged past suicidal attempts and ideations.  He described experiencing depression, negative thinking about himself, and viewed himself as unattractive, unlovable, unwanted, feeling worthless and insecure in relationships.  Many of these traits are consistent with individuals identified as having a  severe personality disorder and reflect the complex nature of treatment.  Mr Tawhi’s SMP to address low self esteem is based on developing and maintaining positive relationships that encourage intimacy. …  He intends to develop himself both educationally and emotionally while remaining in prison through enrolling in TAFE and continuing to develop emotional awareness.  He reported that he will monitor his emotions and if problematic plans to use his supports or professional counselling.  In addition he intends to maintain a fitness regime to further enhance his self esteem.  Finally, he intends to use positive self talk, avoid negative anti social people and use mindfulness to appreciate the positive things in his life.  Mr Tawhi [sic] plans are appropriate if implemented, however, given his identified personality traits ongoing support and counselling if required appears appropriate.

    Release Planning

    Mr Tawhi has developed a SMP that if implemented should assist him in maintaining a pro social lifestyle.  Mr Tawhi is currently listed for deportation to New Zealand for his offending and as such his current SMP may need further modification to match his eventual release location.  His current plan focuses on release in Western Australia.  Mr Tawhi’s SMP has identified future goals that include continued pro social behaviour in prison, to enrol in prison training programs associated with food preparation to assist with employment opportunities when released.  He intends to seek employment through various networks (eg internet, employment agencies), and enrol in TAFE for further qualifications in food preparation and food handling industry.  He reported intent to have a balanced healthy life style that includes physical activity, positive relationships with family, … , and stable employment.  His SMP has identified risk factors and warning signs considered as salient to manage to reduce risk of relapse.  Factors are relapse into illicit substance use, associating with negative peers, isolating himself, excessive pornography, negative self talk, low motivation, weight gain, jealousy, low self esteem, and passive grooming behaviour.  Mr Tawhi’s plans to address these issues have been outlined in the preceding report sections.  Mr Tawhi’s short term goals include employment, training, enrolling in gymnasium, and sporting clubs, and accommodation.  Long term goals include stable employment, balanced life style with exercise, social interaction and employment.  He also intends to develop greater self confidence and self esteem, practise assertive and open communication style, and monitor his depression.

    Accommodation

    Mr Tawhi indicated at present he cannot provide an accommodation address.  He self reports currently seeking support via Outcare to locate temporary accommodation.  He identified other support options to gain accommodation that included his past employer and his mother (unconfirmed).  His SMP has identified the need for clear boundaries regarding being alone with children.

    Employment

    Mr Tawhi’s employment prospects remain unclear, although his plan does incorporate strategies and developing skills appropriate for employment in the food industry.

    Leisure

    Mr Tawhi self reported intent to spend any free time involved in pursuit of fitness/health, for example, joining gymnasium, rugby club, and softball club. He hopes to reconnect with his family and develop a positive social life style. …  He intends to continue TAFE studies which should further offer opportunities for socialising.

    …

    Risk Management Strategies

    Mr Tawhi’s participation in the treatment program has allowed him an opportunity to appropriately identify past behaviour and cognitions that were antecedent to his anti social and criminal behaviour.  These issues have been identified in previous sections understanding offence and risk which outlined various criminogenic factors.  Strategies identified to reduce potential for relapse or anti social behaviour were outlined in the Self Management Plan.  While all identified strategies are appropriate, to date Mr Tawhi’s SMP is restricted in his level of detailed planning because of his current consideration for deportation.  Despite this Mr Tawhi was observed to make positive shifts in treatment in particular associated with emotional management, emotional expression, increased intimacy, seeking support, goal setting and planning.  His outstanding treatment remains in domains of emotional management, substance use, self esteem, and intimacy development.  As a consequence he would benefit from further program intervention in the area of Substance use (via Pathways program) relationship counselling, self esteem, and emotional coping. These issues could be addressed in the prison (pathways) and community if directed by his CCO.

    Monitoring and Case Management Interventions

    Mr Tawhi’s high risk situations appear associated with external factors such as relationship problems, unresolved family conflict, unresolved attachment issues, negative peer influence an emotional dysregulation/anger and substance abuse.  Mr Tawhi’s SMP has identified past unhelpful pattern of coping strategies to manage his stress and uncomfortable emotions that included impulsive behaviour, substance abuse, sexual pre occupation, emotional withdrawal, and propensity to engage in criminal behaviour.  Mr Tawhi may be best assisted to manage potential risk factors through sharing his SMP with his CCO, compulsory urinalysis, and referral for professional counselling eg substance use, relationship, anger management, and general counselling when applicable.

    …”

1. A Pathways Program Completion Certificate, dated 19 December 2013, is also in evidence (Exhibit A4).  That certificate states as follows:

   “This is to certify that

   Haimona Justin Tawhi

   Has completed this 100 Hour Addictions Offending Program offered by the Department of Corrective Services

   at Bunbury Regional Prison on 19^th December 2013.

   Course Content includes;

   ·1     Orientation

   ·2     Cognitive-Behavioural Approach to Change and Responsible Living

   ·3     Alcohol and Other Drug Use Patterns and Outcomes

   ·4     Understanding and Changing Criminal Thinking and Behaviour

   ·5     Sharing and Listening

   ·6     Understanding and Preventing Relapse and Recidivism

   ·7     Steps, Stages and Skills for Self Improvement and Change

   ·8     Mental Self-Control

   ·9     Social and Relationship Skills Building

   ·10   Skills for Social and Community Responsibility

   ·11   Relapse and Recidivism Prevention

   ·12   Strengthening Ownership of Change”.

   The applicant stated, in a letter to the Tribunal dated 24 January 2014 (Exhibit A2), that he had sought access, under the Freedom of Information Act, to the Program Completion Report regarding his participation in the abovementioned Program but that he had not yet received a copy of that report.  Accordingly, a Pathways Program Completion Report is not in evidence.

2. The Tribunal accepts that the applicant’s expressions of shame and remorse for his child sexual offending are genuine and sincere.  The Tribunal also accepts that he has, from the time when his offending was discovered in January 2012 and he surrendered himself to the police and confessed, accepted responsibility for that offending.  In the Tribunal’s opinion these are positive signs that the applicant, if he seeks to continue to rehabilitate himself, may be able to make substantial progress to that end.

3. The abovementioned Sex Offending Medium Program Completion Report, to which the Tribunal attaches great weight, while acknowledging that the applicant had made significant treatment gains, nevertheless noted that “he was observed while under stress to relapse in unhelpful relationship behaviour” and that he continues to be at risk of, inter alia, “emotional dysregulation/anger and substance abuse” and has continuing treatment needs in the areas of “emotional management, substance use, self esteem, and intimacy development”.  The Tribunal notes that the applicant subsequently completed the Pathways Addictions Offending Program and, although a Program Completion Report is not in evidence, it accepts that the applicant, as a result of his participation in that Program, has made progress towards his rehabilitation in the area of substance abuse.

4. Notwithstanding the progress towards rehabilitation that the applicant has made by reason of his participating in, and completing, the Sex Offending Medium Program and the Pathways Addictions Offending Program, the Tribunal notes that the applicant has not spent any time in the community since completing those programs and, therefore, the extent of rehabilitation achieved by the applicant has not been tested in the community.  Accordingly, while the Tribunal is satisfied that the applicant has made some progress towards his rehabilitation to date, it is not satisfied that he has yet made substantial effective progress towards his rehabilitation.  In short, the applicant’s rehabilitation is, in the Tribunal’s opinion, still in its early stage and has a considerable distance to go.

5. Furthermore, having regard to the evidence before it, the Tribunal cannot be satisfied that the risk of the applicant’s committing serious sexual offences in the future is minimal, let alone non-existent.  The Tribunal notes that the Sex Offending Medium Program Completion Report stated that the applicant’s “Static 99” score placed him in the “medium-low risk” category as regards sexual reoffending.  In the Tribunal’s opinion, notwithstanding the applicant’s completion of that Program and the Pathways Addictions Offending Program, there remains a real and significant risk of his relapsing in the future and sexually reoffending in a serious manner.

   Conclusion regarding protection of the Australian community

6. Having regard to:

   ·the very serious nature of the abovementioned child sexual offences which the applicant committed in the period from May 2011 to January 2012 and for which he was sentenced to an effective total of 4 years’ imprisonment on 22 May 2012;

   ·the very serious harm that would be done to the victim(s) should he engage in further criminal conduct of that kind; and

   ·the real and significant risk that he may reoffend in a similarly serious manner;

   the Tribunal is of the opinion that the applicant represents a risk of future harm to the Australian community which that community cannot reasonably be expected to tolerate.

7. In the Tribunal’s assessment this “primary consideration” weighs heavily in favour of cancellation of the visa.

   The strength, duration and nature of the person’s ties to Australia

8. Paragraph 9.2 of the Direction states as follows:

   “ 9.2     Strength, duration and nature of the person’s ties to Australia

   (1)    Reflecting the principles at 6.3, decision-makers must have regard to:

   (a)How long the person has resided in Australia, including whether the person arrived as a young child, noting 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.”

9. The applicant has resided in Australia since 14 December 2009 when he was 23 years old.  He committed the first child sexual offence of which he was subsequently convicted approximately 18 months thereafter, although, according to his own evidence, he was already heavily engaged in illicit substance abuse.  There is evidence before the Tribunal that he was employed as a concrete labourer and concrete pump operator in 2010 and 2011 (see G8, p 43). From 7 January 2012 to date he has been in custody.

10. The applicant’s family ties to Australia comprise his partner, Ms Bartlett, and their 2 children, his parents and his 2 sisters.  All of those immediate family members have migrated to Australia from New Zealand, except for his younger child who was born in Australia in July 2012.

11. Having regard to the considerations referred to in paragraphs 34–35 above, the Tribunal is of the opinion that this “primary consideration”, on balance, neither weighs significantly in favour of, nor weighs significantly against, cancellation of the visa, and should be regarded as neutral.

    The best interests of minor children in Australia

12. Paragraph 9.3 of the Direction states as follows:

    “ 9.3     Best interests of minor children in Australia affected by the decision

    (1)Decision-makers must make a determination about whether cancellation is, or is not, in the best interests of the child.

    (2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to cancel the visa is expected to be made.

    (3)If 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.

    (4)In considering the best interests of the child, the following factors must be considered where relevant:

    (a) The nature and duration of the relationship between the child and the person.  Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

    (b) The extent to which the person is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

    (c) The impact of the person’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

    (d) The likely effect that any separation from the person would have on the child, taking into account the child’s ability to maintain contact in other ways;

    (e) Whether there are other persons who already fulfil a parental role in relation to the child;

    (f)  Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

    (g) Evidence that the person has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and

    (h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the person’s conduct.”

13. It is common ground that the applicant and Ms Bartlett have 2 minor children in Australia who will be affected by the decision regarding the visa, namely, a son aged 7 years and a daughter aged 18 months.  The respondent accepts – rightly, in the Tribunal’s opinion – that it is in the best interests of each of those children that the visa not be cancelled.

14. The respondent submitted, however, that there is another relevant minor chid in Australia who will be affected by the decision regarding the visa, namely, the victim of the applicant’s abovementioned sexual offending in the period from May 2011 to January 2012.  In the respondent’s submission, it is in the best interests of that child that the visa be cancelled.

15. As regards the lastmentioned child, the Tribunal notes that the applicant is prohibited by a Court order from having any contact with her and the Tribunal is satisfied that, if the visa is not cancelled and the applicant remains in Australia, he will observe that order and not have any future contact with that child.  Furthermore, there is no evidence before the Tribunal regarding the views of that child, or her parents, regarding the cancellation, or non-cancellation, of the visa, or the applicant’s remaining in, or being removed from, Australia.  Having regard to these considerations, the Tribunal does not regard this “primary consideration”, insofar as it relates to the child victim of the applicant’s sexual offending, as militating in favour of cancellation of the visa, and it attaches no weight to it.

16. As regards the 2 minor children of the applicant and Ms Bartlett, it follows from the respondent’s concession that it is in the best interests of each of those children that the visa not be cancelled that the respondent also concedes that this “primary consideration” weighs against cancellation of the visa.  The matter for the Tribunal’s assessment, therefore, is the weight that should be given to this “primary consideration” in the circumstances of this case.

17. Unfortunately there is no written statement from Ms Bartlett which is in evidence and the Tribunal did not have the benefit of hearing oral evidence from her.  However, there is in evidence a written record of a telephone interview which an officer of the Department conducted with Ms Bartlett on 10 April 2013 (G14).  That record relevantly states:

    “ …

    Ms Bartlett stated she had visited Mr TAWHI in prison every four weeks before he was moved from Acacia Prison, but had last visited Mr TAWHI around September 2012, about two months after the birth of their daughter.  Ms Bartlett did confirm Mr TAWHI rang his family home on an almost daily basis – mainly to speak to his children.  She indicated he had a very strong bond with his son …, but also liked hearing his infant daughter make noises and touch the telephone buttons as well.

    …

    Ms Bartlett thought the only formal custody order that would be in effect in relation to Haimona when he was released from prison in January 2014, might be in relation to the female relative he assaulted.  She indicated Mr TAWHI had a very solid and close relationship with their children – especially his son, the eldest child.

    As far as plans following his release in January 2014, Ms Bartlett said she would not be living in the same house as Mr TAWHI if he remained in Australia, and if his visa was cancelled, stated categorically she would definitely not be returning with him to NZ.  Although she didn’t rule out return holidays to see him with the children.

    …

    Ms Bartlett confirmed she had talked to Haimona about the possibility of visa cancellation, and of him being removed from Australia, and confirmed she would be devastated – mainly for the children’s sake, if this were to occur.  She stated this was Mr TAWHI’s only offence in Australia.  She stated that he was a good worker and had previously been a good provider for them, and indicated she would struggle financially without him, and the financial support he would willingly provide for their children.

    …”  (G14, pp 82 – 83)

18. Having regard to the evidence before it, the Tribunal makes the following comments in relation to the relevant factors referred to in para 9.3(4) of the Direction:

    ·the applicant established a very strong bond with his son (born in August 2006) during the period in which they were living together as a family up until January 2012 (when the applicant was taken into custody), but the applicant has not seen his son from the time of his incarceration although he has had almost daily telephone contact with him;

    ·the applicant has not met his daughter, who was born in July 2012 after the commencement of his incarceration, although he has had telephone contact with her (as described by Ms Bartlett in the abovementioned record of telephone interview);

    ·if the applicant remains in Australia after his release from prison, and remains crime-free and refrains from substance abuse, he is likely to play a substantial positive ongoing parental role in relation to each child, with the support and co-operation of Ms Bartlett, although it is doubtful whether he will reside with Ms Bartlett and the children;

    ·if the applicant is removed from Australia when he is released from prison, his ability to play a parental role in the future will be substantially reduced because the children will remain in Australia with Ms Bartlett and he will not have ongoing physical contact with them although he will be able to maintain telephone and/or electronic contact with them;

    ·although the applicant has been separated from his son for the last 2 years, further indefinite separation by reason of the applicant’s removal from Australia would be likely to have a significant adverse emotional effect on his son, given the established bond between them;

    ·because the applicant has not yet met his daughter, who is only 18 months old, he has not had the opportunity to develop a close bond with her and, accordingly, ongoing separation from her is unlikely to have as great an adverse emotional effect on her as it is likely to have on his son;

    ·the applicant’s removal from Australia would be likely to have an adverse financial effect on the children because the applicant would be unlikely to be able to provide the same amount of financial support for them as he would be able to provide if he remained in Australia;

    ·Ms Bartlett presently fulfils an effective parental role in relation to the children, with the assistance of the applicant’s mother.

    Conclusion regarding the best interests of minor children in Australia

19. Having regard to the considerations referred to in paragraph 43 above, the Tribunal is of the opinion that the “primary consideration” regarding the best interests of the applicant’s 2 children, which weighs against cancellation of the visa, should be given significant, but not decisive, weight.

    Whether Australia has international non-refoulement obligations to the person

20. Paragraph 9.4 of the Direction states:

    “ 9.4     International non-refoulement obligations

    (1)    In cases where claims which may give rise to international non-refoulement obligations are raised by the person or are clear from the facts of the case, they must be given consideration if the person is in Australia.

    …

    (3)Australia has non-refoulememnt obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); and the International Covenant on Civil and Political Rights (ICCPR) and its Second Optional Protocol. …”

21. The applicant has not raised any claim which may give rise to international non-refoulement obligations; nor is any such claim clear from the facts of the applicant’s case.  Accordingly, pursuant to para 9.4(1) of the Direction, the Tribunal is not required to consider such matters.

22. This “primary consideration” is, therefore, not applicable or relevant to the applicant’s case and, consistently with para 8(1) of the Direction, the Tribunal has not taken it into account.

    Other relevant considerations

23. Paragraph 10 of the Direction states as follows:

    “ 10     Other considerations – visa holders

    (1)    In deciding whether to cancel a visa, other considerations must be taken into account where relevant.  These considerations include (but are not limited to):

    (a)Effect of cancellation of the person’s visa 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;

    (b)Impact on Australian business interests;

    (c)Impact of a decision not to cancel a visa on members of the Australian community, including victims of the person’s criminal behaviour, and the family members of the victim or victims where that information is available and the person being considered for visa cancellation has been afforded procedural fairness;

    (d)The extent of any impediments that 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:

    (i)   The person’s age and health;

    (ii)  Whether there are substantial language or cultural barriers; and

    (iii) Any social, medical and/or economic support available to them in that country.”

    Having regard to the evidence before it, it seems to the Tribunal that the considerations referred to in subparas (a) and (d) of para 10(1) of the Direction are relevant to the applicant’s case.  As regards the consideration referred to in in subpara (c), there is no evidence before the Tribunal regarding the impact (if any ) of non-cancellation of the visa on the victim of the applicant’s abovementioned sexual offences, or on members of her immediate family, and, accordingly, this consideration will not be taken into account by the Tribunal.

    Effect of cancellation of the visa on the applicant’s immediate family in Australia

24. The applicant’s immediate family (other than his children, whose interests have been considered above) in Australia comprises Ms Bartlett, his parents and his 2 sisters.

25. As regards the effect of cancellation of the visa on Ms Bartlett, the record of the telephone interview of 10 April 2013 (referred to in paragraph 42 above) relevantly states that Ms Bartlett “confirmed she would be devastated – mainly for the children’s sake, if [cancellation of the visa] were to occur” and “indicated she would struggle financially without him …”.  The Tribunal accepts that Ms Bartlett would suffer emotional distress and financial disadvantage by reason of cancellation of the visa.

26. No statement from the applicant’s mother or father or from either of his 2 sisters, regarding the effect of cancellation of the visa on them, is in evidence before the Tribunal.  The Tribunal notes, however, that the abovementioned record of telephone interview with Ms Bartlett records that Ms Bartlett expressed the view that the only people, other than herself and their 2 children, who “might experience hardship” as a result of the cancellation of visa were the applicant’s mother and his older sister (G14, p 85).  The Tribunal accepts that the applicant’s mother, and at least his older sister, would suffer emotional distress by reason of cancellation of the visa.

    The extent of any impediments that the applicant may face if removed from Australia to New Zealand

1. The applicant, in his abovementioned statement (see paragraph 15 above) asserted that:

   ·he does not have any family support network in New Zealand;

   ·he does not have any “employment options” in New Zealand;

   ·his “life will be in jeopardy” from gangs in New Zealand.

   The Tribunal accepts, however, that the applicant would be able to avail himself of social support from relevant community organisations, and to access the social welfare and public health systems, in New Zealand.  As regards the possible threat of gang violence, the Tribunal notes that the abovementioned record of telephone interview of 10 April 2013 relevantly states:

   “ … [Ms Bartlett] indicated she had no fear of return [to New Zealand] and wouldn’t face any particular problems, and it was essentially a lifestyle choice.  Ms Bartlett said that although she had been brought up in a gang culture environment, she personally never experienced any problems, and wasn’t aware that Mr TAWHI had any past problems, or felt he would have on return either.”  (G14, p 83)

   The Tribunal also notes, however, the applicant’s response to that statement to the effect that he has not “worried [Ms Bartlett] about the dangers [he] could face from gang-related issues …”  (G15, p 85).

2. The Tribunal attaches little weight to the abovementioned assertions of the applicant.  The Tribunal does accept, however, that the applicant would, if removed from Australia, suffer substantial emotional distress by reason of the indefinite physical separation from his 2 children and the loss of the opportunity to make a future life for himself, with his children, in Australia.

   Conclusion regarding other relevant considerations

3. The abovementioned considerations – in particular, the effect of cancellation of the visa on members of the applicant’s immediate family in Australia – favour non-cancellation of the visa.  However, none of those family members provided a timely written statement or gave oral evidence in this proceeding and, accordingly, the weight that it is appropriate to give that consideration is, in the Tribunal’s opinion, limited.  As regards the effect of cancellation of the visa on the applicant himself, the Tribunal acknowledges the severity of the consequence of his removal from Australia but is nevertheless of the opinion, given that it is the applicant’s own very serious criminal offending that has rendered him liable for that consequence, that little weight should be given to that consideration.

4. The Tribunal concludes, therefore, that the abovementioned other relevant considerations in this case, which favour non-cancellation of the visa, should be given relatively little collective weight.

   Conclusion – the Preferable Decision

5. In accordance with the Direction, the Tribunal, informed by the principles in para 6.3 of the Direction, has taken into account the relevant “primary considerations” and the other relevant considerations in this case and has assessed the weight which, in its opinion, it is appropriate to give to each of those “primary considerations” and other considerations.

6. On balancing the relevant “primary considerations” and other relevant considerations in this case, in the Tribunal’s assessment the “primary consideration” regarding “the protection of the Australian community from criminal or other serious conduct”, which (as concluded in paragraph 32 above) weighs heavily in favour of cancellation of the visa, outweighs the “primary consideration” regarding “the best interests of [the applicant’s] minor children in Australia” and those other relevant considerations (referred to in paragraphs 49–54 above) which weigh against cancellation of the visa.

7. Although the abovementioned balancing exercise points towards the ultimate outcome of this proceeding, it does not, of itself, determine that outcome.  The outcome of this proceeding will ultimately be determined in accordance with the Tribunal’s obligation, pursuant to para 7(1) of the Direction, to determine whether the risk of the applicant’s causing future harm to members of the Australian community is “unacceptable” and the applicant has forfeited the privilege of continuing to hold the visa.  In making that determination the Tribunal must have regard to the principles set out in para 6.3 of the Direction.

8. Having regard, in particular, to the principles referred to in paras 6.3(2), 6.3(4) and 6.3(6) of the Direction, and to:

   ·the very serious nature of the abovementioned sexual offences against a child of 11 years of age which the applicant committed in the period from May 2011 to January 2012;

   ·the Tribunal’s opinion that, although the risk of the applicant’s reoffending in a similar manner has been authoritatively assessed as “medium–low”, there remains a real and significant risk that he may so reoffend;

   ·the very serious nature of the harm that would be caused to a member or members of the Australian community if the applicant so reoffended;

   ·the relatively short period of time in which the applicant has been participating in, and contributing to, the Australian community; and

   ·the consequences of cancellation of the visa for the applicant’s minor children and other immediate family members in Australia;

   the Tribunal concludes that the risk of the applicant’s so reoffending and causing very serious harm to the Australian community is an unacceptable risk which should not be tolerated by the Australian community.  Accordingly, the Tribunal determines that the applicant represents an unacceptable risk of very serious future harm to the Australian community and that he has forfeited the privilege of continuing to hold the visa and of remaining in Australia.

9. The Tribunal concludes, therefore, that the preferable decision in this case is that the visa be cancelled under s 501(2) of the Act.

   Decision

10. For the above reasons, the decision under review is affirmed.

I certify that the preceding 61 (sixty- one) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop

....(Sgd) T Freeman......................

Administrative Assistant

Dated 18 February 2014

Date of hearing	7 February 2014
Representative of the Applicant	In person (unrepresented)
Representative of the Respondent	Mr A Gerrard
Solicitor for the Respondent	Australian Government Solicitor