Tereapii Ruatita and Minister for Immigration and Citizenship
[2012] AATA 444
•16 July 2012
[2012] AATA 444
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/1858
Re
Tereapii Ruatita
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Deputy President R P Handley
Date 16 July 2012 Place Sydney Decision Summary The decision under review is set aside and a decision substituted that Mr Ruatita’s visa not be cancelled.
.........[sgd]....................................
Deputy President R P Handley
CATCHWORDS
IMMIGRATION – visa cancellation – Direction 41 - character test – substantial criminal record – primary considerations – protection of the Australian community – seriousness and nature of the conduct – risk that the conduct may be repeated – whether a minor when person began living in Australia – length of time ordinarily resident in Australia prior to engaging in criminal activity – best interests of the child - other considerations - family ties, the nature and extent of any relationships – person’s age – person’s health – links to the country to which they would be removed – hardship likely to be experienced by the person or their immediate family members – level of education – whether the person has been formally advised in the past of conduct that brought the person within deportation provisions – decision under review set aside
LEGISLATION
Crimes Act 1900 (NSW)
Migration Act 1958
CASES
Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 390
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
SECONDARY MATERIALS
Direction [no. 41] - Visa refusal and cancellation under s 501
REASONS FOR DECISION
Deputy President R P Handley
Mr Ruatita has applied to the Tribunal for the review of a decision of a delegate of the Minister for Immigration and Citizenship (the Minister) to cancel his visa on the ground that he does not pass the character test because of his substantial criminal record.
BACKGROUND
Mr Ruatita was born in the Cook Islands in 1962 and moved to New Zealand to live with his sister at the age of 20 after their parents died. He is a New Zealand citizen. Mr Ruatita arrived in Australia on 4 October 1992, aged 30, and has not departed since. Until his visa was cancelled, he was the holder of a Class TY Subclass 444 Special Category (Temporary) visa that permitted him to stay in Australia indefinitely. He has two children aged 8 and 9, for whom he said he provides financial support to the children’s mother (whom I will refer to as Ms X).
Mr Ruatita said Ms X was his partner for about 10 years. However, I note she was named as the person in need of protection in a number of Apprehended Domestic Violence Orders (ADVOs) in which Mr Ruatita was the defendant, and she has been the victim of a number of assaults committed by Mr Ruatita, most recently that committed on 7 October 2011. Mr Ruatita pleaded guilty to the charge of ‘common assault’ and to breaching an ADVO, of which he was convicted and for which he received a 12 months prison sentence with a non-parole period of seven months.
Mr Ruatita’s criminal history in Australia dates from 15 November 1995 when, at the age of 33, he was fined and convicted of the offences common assault and breaching an ADVO. The presiding Magistrate imposed a 12 month good behaviour bond. Mr Ruatita’s criminal record appears, from the documents supplied to the Tribunal, to be as follows:
| CHARGE DATE | DATE OF CONVICTION | OFFENCE | OUTCOME |
| 4 November 1995 | 15 November 1995 | Common assault Breach of ADVO | Fine, 12 month good behaviour bond (for both offences) |
| Not provided | 3 August 1996 | Travel on public transport with an incorrect ticket | Fine |
| 2 June 1996 | 15 October 1996 | Common assault Breach of ADVO | Fine |
| 4 May 1997 | 26 May 1997 | Contravene ADVO | Six months periodic detention |
| Not provided | 23 July 1999 | Negligent driving Fail to stop after accident Driving whilst on a learner’s permit without an accompanying licensed driver | Fine |
| 16 March 2002 | 18 October 2002 | Aggravated indecent assault on a victim under the age of 16 years | 12 month suspended sentence Section 12 bond with supervision order |
| Not provided | 17 June 2004 | Breach of bail conditions | Order made |
| Not provided | 7 September 2004 | Common assault | Community service order (60 hours) |
| 17 June 2004 | 8 September 2004 | Contravene ADVO | 12 month suspended sentence Section 12 bond with supervision order |
| 25 November 2004 | 13 December 2004 | Contravene ADVO Fail to comply with reporting obligations | Section 9 bond (for both offences) |
| 13 January 2005 | 2 February 2005 | (1) Contravene ADVO (2) Contravene ADVO | 12 months periodic detention (nine month non-parole period) one month periodic detention |
| Not provided | 3 March 2006 | Making a false statement in disclosing a prohibited person | Not specified |
| Not provided | 18 July 2006 | Destroy or damage property | Fine |
| Not provided | 24 July 2006 | Making a false statement in disclosing a prohibited person | Fine |
| Not provided | 15 August 2006 | Contravene ADVO | Nine month suspended sentence (six month non-parole period) |
| Not provided | 5 February 2007 | Contravene ADVO | Six month suspended sentence Section 12 bond for six months |
| 2 July 2006 23 August 2006 6 April 2007 | 29 May 2007 | Contravene ADVO Contravene ADVO Knowingly contravene prohibition/restriction of ADVO | Nine months periodic detention (six month non-parole period Six months periodic detention Six months periodic detention |
| Not provided | 26 September 2007 | Fail to comply with reporting obligations | Fine |
| 5 October 2007 | 16 October 2007 | Stalking/intimidation with intent to cause fear, physical, and/or mental harm | Seven months imprisonment (four month non-parole period) |
| Not provided | 31 October 2007 | Contravene prohibition/restriction of ADVO | Four months imprisonment |
| 28 January 2009 | 3 March 2009 | Contravene prohibition/restriction of ADVO | Section 9 bond 18 month supervision order |
| 18 September 2009 18 September 2009 18 September 2009 18 September 2009 | 19 October 2009 | Contravene prohibition/restriction of ADVO Common assault Stalking/intimidation with intent to cause fear, physical, and/or mental harm | Seven months imprisonment (four month non-parole period) Three months imprisonment |
| Not provided | 24 November 2009 | Contravene prohibition/restriction of ADVO | One month imprisonment |
| Not provided | 2 September 2010 | Contravene prohibition/restriction of ADVO | Nine months imprisonment (five year non-parole period) |
| 8 October 2011 8 October 2011 | 11 November 2011 | Common Assault Contravene prohibition/ restriction of ADVO | 12 months imprisonment (seven month non-parole period) 12 months imprisonment (seven month non-parole period) (sentences served concurrently) |
By letter dated 7 April 2008, the receipt of which was acknowledged by Mr Ruatita on 16 April 2008, the Department of Immigration and Citizenship (the Department) notified Mr Ruatita that it had been decided not to cancel his visa but further misconduct would lead to fresh consideration being given to cancellation.
By letter dated 23 February 2012, a delegate of the Minister notified Mr Ruatita that consideration was being given to the cancellation of his visa and inviting him to respond. Mr Ruatita completed a Personal Details Form for the Department which was received on 13 March 2012. The delegate also sent Mr Ruatita further information inviting him to respond on 27 March 2012, 30 March 2012 and 2 April 2012. Mr Ruatita made submissions which were received on 2 April 2012.
On 2 May 2012, a delegate of the Minister decided to cancel Mr Ruatita’s visa and Mr Ruatita received a letter notifying him of this on 3 May 2012. On 8 May 2012, his application for a review of the delegate’s decision was received by the Tribunal.
Mr Ruatita was released from prison on 6 May 2012 at the end of his non-parole period and immediately taken into immigration detention at Villawood.
RELEVANT LAW AND POLICY
Section 501(2) of the Migration Act 1958 provides that the Minister may cancel a visa if “the Minister reasonably suspects that the person does not pass the character test” and “the person does not satisfy the Minister that the person passes the character test”. Section 501(6)(a) provides that a person does not pass the character test if the person has a substantial criminal record. ‘Substantial criminal record’ is defined in s 501(7) as, among other things, having been sentenced to a term of imprisonment of 12 months or more, or to two or more terms of imprisonment where the total of those terms is two years or more.
On 11 November 2011, Mr Ruatita was sentenced to a term of imprisonment of 12 months with a non-parole period of seven months for each of two offences, with the sentences to be served concurrently. He has previously been sentenced, on two separate occasions, to 12 months imprisonment, suspended on his entering into a good behaviour bond, and to shorter terms of imprisonment on a number of other occasions. Thus, he does not pass the character test. It was therefore open to the Minister to cancel Mr Ruatita’s visa. In exercising this discretion, the decision-maker must apply Direction [no. 41] - Visa refusal and cancellation under s 501 of the Act (Direction 41). Direction 41 contains a number of ‘primary’ and ‘other’ considerations to which the decision-maker must have regard when considering whether to exercise the discretion to refuse or cancel a visa.
The ‘primary’ considerations in Direction 41 are set out in paragraph 10(1):
The primary considerations
(1) In deciding whether to refuse to grant a person a visa or cancel a person’s visa, the following (the primary considerations) are to be considered:
(a) the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
(b) whether the person was a minor when they began living in Australia;
(c) the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and
(d) relevant international obligations, including but not limited to:
(i)the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
(ii)the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
(Original emphasis)
These considerations are elaborated on by a range of factors to which regard must be had. There are also a number of ‘other’ considerations that, where relevant, must be taken into account but, generally, in accordance with Direction 41 paragraph 11(2), they should be given less weight than the ‘primary’ considerations. Those ‘other’ considerations are discussed below.
PRIMARY CONSIDERATIONS
The ‘primary’ considerations relevant in Mr Ruatita’s case are the protection of the Australian community, whether he was a minor when he began living in Australia, the length of time he was ordinarily resident in Australia prior to engaging in criminal activity, and relevant international obligations, in particular the best interests of his children. These considerations are addressed below.
THE PROTECTION OF THE AUSTRALIAN COMMUNITY
Direction 41 identifies two factors relevant to this consideration: the seriousness and nature of the relevant conduct and the risk that the conduct may be repeated.
The seriousness of the conduct
With regard to the seriousness of Mr Ruatita’s conduct, the Tribunal notes that “Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community” (paragraph 10.1.1(1) of Direction 41). Among the examples of offences and conduct that are considered serious listed in paragraph 10.1.1(2) of Direction 41 are “all offences perpetrated against a child (particularly sexually-based offences)” and “assault”.
Paragraph 10.1.1(3) of Direction 41 states that “The sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community”, and regard must be had to the number and nature of offences, the period between offences, and the time elapsed since the most recent offence. Among the factors to be considered pursuant to paragraph 10.1.1(4) are any judicial comments made about the person, parole assessments and any relevant mitigating factors.
Mr Ruatita was convicted of an aggravated indecent assault on a child on 18 October 2002. Mr Ruatita denies having committed the offence: he said there were no witnesses to what he was alleged to have done, and he wanted to clear his name and have it removed from the Register of Child Offenders. While the Tribunal is not permitted to go behind the facts of the conviction, and while the Magistrate’s sentencing remarks are not available to the Tribunal, I note that Mr Ruatita was given a 12 months suspended sentence on entering into a s 12 bond with a supervision order. This suggests the offence was not regarded as being at the most serious end of the spectrum given that the offence carries a maximum penalty of 10 years imprisonment (s 61M of the Crimes Act 1900 (NSW)).
Mr Ruatita has five convictions for common assault, four of which are in conjunction with his breaching an ADVO. Thus, most incidents took place in the context of a domestic dispute. Mr Ruatita’s evidence is that in 1995 he was living with a woman. He said he left this relationship after about two years when he found out the woman was cheating on him and was still in a relationship with her former partner. About 10 years ago, he met Ms X and, when she became pregnant, he moved in with her in her house in Wollongong. Ms X already had children by two former partners, neither of whom was supporting her. His disputes with Ms X, including that on 7 October 2011 which was the subject of his most recent convictions, were mostly about her older children using drugs. While Mr Ruatita acknowledged that he uses alcohol, he said he does not use drugs and he wanted to try and stop the older children using drugs because he feared this would be a bad influence on his two much younger children. Ms X did not like him interfering in this way with her older children and they got into arguments about this and she would phone the police to get him out of the way.
Mr Ruatita said that even after four months in prison in 2008, he continued to live with Ms X. He did this because he did not want to leave his children. If it had not been for them, he would have never stayed. Now, however, if he is released into the Australian community, he does not want to live with Ms X anymore, will find somewhere else to live and will make the necessary arrangements to be with his children.
Mr Ruatita said that on 7 October 2011, at a time when he was not living with Ms X because of an ADVO, he finished work late and, at about 8 pm, went to visit his sons. Ms X, who was having a glass of wine, invited him to have a glass of wine with her, which he did. One of Ms X’s older sons arrived home with a friend and asked whether they might smoke marijuana in the son’s room. When Mr Ruatita objected, Ms X refused to discuss this, became aggressive and tried to smack him. His scratching her happened when he put up his arm to protect himself. Mr Ruatita said he realises that what he did on this and other occasions was wrong, takes responsibility for his actions, apologises to the Australian community and is sorry for what he did to Ms X. He said, however, that he has never hurt anybody in the community outside the domestic context.
Ms Darcy, for the Minister, noted the significant number of offences involving domestic violence, the pattern of offending with relatively short time periods between many of Mr Ruatita’s offences, and that his most recent conviction is in respect of conduct that took place only recently, on 7 October 2011.
The sentencing remarks of Magistrate McRobert on 8 September 2004, in respect of Mr Ruatita’s guilty plea to contravening an ADVO, refer to Mr Ruatita’s “brazen returning to the home when he’s prohibited by a court order doing so”. Magistrate Guy, in sentencing Mr Ruatita on 11 November 2011, noted that he had pleaded guilty to the charges. His Honour said the assault, which involved Mr Ruatita scratching the face of Ms X, the person whom the ADVO sought to protect, was at the lower end of the spectrum in terms of objective seriousness – “between bottom and midrange” – except in terms of the emotional effect on the victim. Magistrate Guy noted that Mr Ruatita sounded like “a very hard working man who unfortunately is a chronic abuser of the protection which is afforded to a complainant … to protect her from acts of violence”. His Honour noted that Mr Ruatita’s record goes back over many years and commented that “Given his record I think there is a real question mark as to whether the defendant has appreciated the consequences of his actions”.
I note that alcohol seems to have been a factor in many of the offences. Mr Ruatita said he started drinking at the age of about 15 when he was living in the Cook Islands with his uncle, who used to drink beer. Mr Ruatita continued drinking when he moved to New Zealand but mostly only once a fortnight or once a month. His drinking increased when he came to Australia – he was drinking more and often about twice a week. From 2009/2010, he was drinking less – only about once a week – but still often a lot of beer. Mr Ruatita said he recognises that he has an alcohol problem and will do whatever is necessary to help him overcome this. He did a drug and alcohol course in 2006 but did not complete this because he was doing shift work. Then while in prison in 2008, he completed the Getting Smart program which includes a component on dealing with drugs and alcohol. He also attended an Alcoholics Anonymous (AA) program in prison.
Ms X gave evidence by telephone at the hearing. She said Mr Ruatita is a good man who supported her and all her children, but they had “a little problem about drinking”. She said she was always arguing with Mr Ruatita and that the relationship breaks were her fault. She is currently undertaking counselling to try and address her problems and is sorry for what happened. She does not want to resume her relationship with Mr Ruatita. She said, “I want to help myself and get myself fixed with counselling”. However, she wants his support in caring for their two children.
The overall picture is of a pattern of domestic violence over a period of over 15 years, involving two partners, albeit with there being no offences in the five year period between 1997 and 2002. Latterly at least, alcohol was often involved in what appears to have been an abusive relationship to which both parties contributed. None of this excuses Mr Ruatita’s conduct and particularly his disobedience of the law, but it does explain the context in which this occurred.
The risk that the conduct may be repeated
With regard to the risk that the conduct may be repeated, paragraph 10.1.2 of Direction 41 requires that consideration be given to Mr Ruatita’s previous general conduct and total criminal history and, in particular, to any recent history of convictions, evidence of rehabilitation, and evidence as to whether he has breached any judicial orders, including bail and parole orders.
Mr Ruatita’s criminal history and record of breaching ADVOs is referred to above. Also noted above, Mr Ruatita completed a Getting Smart program in prison for which he has a certificate of completion dated 23 April 2008. Department of Corrective Services case notes for Mr Ruatita also indicate that, prior to completing Getting Smart, he sought help from a counsellor and attended AA meetings. At the hearing, Mr Ruatita acknowledged his problem with alcohol and said he will do anything to overcome this. As noted above, he said he takes responsibility for his actions and apologises for his conduct. I asked him why I should believe him when he made similar statements to the Department when consideration was being given to the cancellation of his visa in 2008. He said that being in Villawood has taught him a lot about the effect of his conduct and has opened his eyes to his being in a situation he never thought he would be in.
I note that Mr Ruatita was convicted of breaching his bail conditions on 17 June 2004, and also convicted of failing to comply with his reporting obligations on 13 December 2004.
I further note Magistrate Guy’s comment that, given Mr Ruatita’s record, “I think there is a real question mark as to whether the defendant has appreciated the consequences of his actions”. Certainly, Mr Ruatita’s pattern of offending in recent years indicates that there is a real risk of this recurring. While he took some steps towards rehabilitation in 2008, he has reoffended on a number of occasions since and this first primary consideration therefore favours the cancellation of his visa. While Mr Ruatita states that he regrets his misconduct, takes responsibility for his actions and apologises to the Australian community, I only have his assurance that he does now appreciate the consequences of his actions. However, the fact that he undoubtedly now understands that his misconduct has put his relationship with his children at risk by reason of the possibility of their being separated if he is returned to New Zealand, gives me confidence that he has a greater level of insight into his situation than previously. His obvious love for his two children and determination to provide for and support them is manifest.
I also note Magistrate Guy’s comment that Mr Ruatita “sounds like a very hard working man”. His hard working ethic is referred to in evidence from Ms X (statement dated 5 June 2012), from Ms X’s sister-in-law (letter dated 24 May 2012), and Ms X’s brother, who is a Pastor at a Christian Life Centre (letter faxed on 20 June 2012). Mr Ruatita’s evidence is that his employer has taken him back on several occasions after Mr Ruatita has spent time in prison and is willing to do so again. In my view, this also suggests Mr Ruatita has a capacity to quickly reintegrate into the Australian community.
WHETHER HE WAS A MINOR WHEN HE BEGAN LIVING IN AUSTRALIA
Mr Ruatita was aged 30 when he first commenced residence in Australia. Direction 41, paragraph 10.2(1) states:
If the person was a minor when they began living in Australia and spent their formative years in Australia, thereby increasing the likelihood of establishment of greater ties and linkages to the Australian community, this is to be given favourable consideration.
In Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 390, at 396, Rares J said:
In my opinion, a decision-maker was entitled to take into account the fact that a person who arrived in Australia as an adult, did so with the knowledge, duties and responsibilities of an adult in the position of the visa holder, at that time for the purposes of assessing what, if any, weight ought be given to that factor in the deliberative process. A decision-maker was entitled to take into account the fact that the person was not a minor. Indeed, a decision-maker was bound to have regard to that consideration by force of cl 10(1)(b). No direction is provided in the balance of Direction 41 as to the weight that should be given to the fact that the visa holder was not a minor under cl 10(1)(b).
The Tribunal notes that Mr Ruatita has been in Australia for nearly 20 years and the evidence indicates that he has formed strong ties with the Australian community. Nevertheless, Mr Ruatita was a mature adult and should have been fully aware of the consequences of his offences. While this primary consideration favours cancellation of Mr Ruatita’s visa, in my view, it should not be afforded any great weight.
LENGTH OF TIME ORDINARILY RESIDENT
The third primary consideration relevant in Mr Ruatita’s case – the length of time he has been ordinarily resident in Australia – is further explained in paragraph 10.3(1) of Direction 41. This states that “more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character”.
Mr Ruatita was first charged with criminal offences in Australia – common assault and breach of an ADVO – on 8 October 1995 after he had been in Australia for 3 years. Since then, as the table of offences in paragraph 4 shows, he has had similar convictions on many occasions.
This consideration favours the cancellation of Mr Ruatita’s visa.
BEST INTERESTS OF THE CHILDREN
Direction 41, paragraph 10.4.1(4) states: “Under Australian law, it is generally presumed that a child’s best interests will be served if the child remains with its parents”. In Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133 (Wan), the Full Federal Court said, at 142:
Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of Mr Wan's children, it was entitled to conclude, after a proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children. However, it was required to identify what the best interests of Mr Wan's children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.
Direction 41 sets out a number of factors to be considered in ascertaining the best interests of the child. These include, relevantly: the nature of the relationship between the child and the person; the duration of the relationship including the number and length of any separations and the reasons for those separations; the extent to which the person is likely to play a full parental role in relation to the child; the child’s age, citizenship and relationships with others in a parental role; the likely effect that any separation from the person would have on the child; the impact of the person’s prior conduct on the child; any known wishes expressed by the child; the circumstances of the probable country of future residence; and any language and cultural barriers there for the child.
Mr Ruatita has two children in Australia, boys aged 9 and 8. Both live with their mother, Ms X, one of her older children from another relationship, and Ms X’s father. Ms X said Mr Ruatita is a “good man”, who “loves his two boys” and who supported her and “all my kids”. Ms X states that she does not want to resume her former de facto relationship with Mr Ruatita but she said the two children need and depend on their father, and she does not want them to be separated from him. She needs him to support the two boys both financially – she currently does not have enough money to pay the rent – and emotionally, especially as they grow up. Ms X said the breakdown of her relationship with Mr Ruatita was her fault because she always argued with him. She does not want their children to see them arguing. Currently, she is having counselling to try and address her own problems.
Mr Ruatita said that he would not have stayed in his relationship with Ms X had it not been for his two children. He provided a number of short written statements to the Tribunal, in two of which (faxed on 30 May 2012) he spoke of his love for his children, his caring and support for them since birth, and the activities he undertook with them. He also spoke of his worry for their future if he is deported.
Mr Ruatita said that while in prison and at the Villawood immigration detention centre, he has stayed in contact with them by phone – in prison twice a week and now, while he has been in Villawood, daily. While in prison, Ms X brought his children to see him from time to time and, since he has been in Villawood, Ms X has brought them to visit him every second week. He has not wanted them to visit him more often because he worries about them travelling to see him by train. Mr Ruatita said if he is released into the community, he will make arrangements for his children to spend time with him at his house and, perhaps, will ask Ms X’s older son, who still lives with Ms X, to bring them to his house. Ms X’s older son provided a letter dated 5 June 2012 in support of Mr Ruatita attesting to Mr Ruatita’s caring for all the children living in Ms X’s household and to their love and respect for him.
In her statement dated 24 May 2012, Ms X’s sister-in-law referred to Mr Ruatita as “a doting and loving father”. Ms X’s brother, a pastor with the Christian Life Centre in Sydney, who provided a letter faxed on 20 June 2012 and gave evidence by telephone at the hearing, said Mr Ruatita is very supportive of his two boys. The Pastor described Mr Ruatita as “reliable, responsible, committed to work and providing for his family”.
Ms Darcy, for the Minister, said the Minister accepts that Mr Ruatita loves his children, has ongoing meaningful contact with them and has only been separated from them while he has been in custody or detention. She acknowledged that the evidence suggests he has played a significant role in their lives and wants to continue to do so, which is encouraged by Ms X. If Mr Ruatita’s visa is cancelled, he will be returned to New Zealand which, given Ms X’s statement that she would not live in New Zealand, will mean physical separation from his children. Ms Darcy acknowledged that there is a presumption that a child’s best interests are served by the child living with its parents and that Mr Ruatita’s children’s best interests favour his visa not being cancelled. However, she submitted that this must be weighed against the other considerations.
In my view, Ms Darcy’s submissions accurately summarise the relevant factors to which the Tribunal must have regard. There is no evidence before me as to the likely effect that separation from their father will have on Mr Ruatita’s children, but this is a matter in which the applicant, who presents as not being a sophisticated man, is not legally represented and has had to prepare his care while in custody and latterly in detention. I am satisfied that Mr Ruatita loves his children and the evidence before me indicates that he has been a committed, caring and supportive father who has played an important part in their lives. In these circumstances, it is, in my view, reasonable to infer that Mr Ruatita’s children would suffer a significant adverse effect as a result of being separated from their father. As stated above, it is presumed that a child’s best interests will be served if the child remains with its parents and I have no doubt that, in all the circumstances of this case, this primary consideration strongly favours Mr Ruatita’s visa not being cancelled.
OTHER CONSIDERATIONS
As noted above, Direction 41 states that ‘other’ considerations, where relevant, must be taken into account but, generally, should be given less weight than ‘primary’ considerations. Relevant ‘other’ considerations in Mr Ruatita’s case specifically referred to in the Direction are his family ties and the nature and extent of his relationships with those in the Australian community, his age, his health, his links with New Zealand, the hardship that may be experienced by both Mr Ruatita and his immediate family members in Australia, and whether he has been formally advised in the past that his visa might be cancelled because of his criminal conduct.
Mr Ruatita’s evidence is that he moved to Auckland from the Cook Islands at the age of 20 to live with his sister after their parents died. He left school at the age of 15 and the only work available in the Cook Islands was plantation work and fishing. In New Zealand, he completed a TAFE course and gained a certificate in automotive repairs. He worked for Black and Decker on a factory line making electrical appliances for about four years and also worked in dispatch for a building materials company. Mr Ruatita said he moved from New Zealand to Australia to look for work in 1992 because his sister had three children and could not afford to support him, and also because he was looking for a better life. He said he and his sister cared for each other as brother and sister but he has had no contact with her or with any other family members since moving here. Mr Ruatita said he would like to re-establish contact with his sister in the future but does not know anything of her current circumstances or where she is living. He estimated that she would now be about 54. He also has a brother, who would be about 60, but Mr Ruatita does not know where he is living.
Mr Ruatita said that on arrival in Australia, he initially lived in Manly with his cousin and her family and worked with his cousin’s husband as a builder’s labourer. After about six months, he found his own place in Mt Druitt and worked as a store person for a company in North Ryde. Thereafter, he worked for a meat supplier for about four years, before moving to Wollongong about 10 years ago to live with Ms X. Initially in Wollongong, he worked as a labourer before getting a job with Wollongong City Council at their recycling plant which was later taken over by a private company. He has continued to work for this company and, as mentioned above, he says they have offered to take him back if he is released into the community, as they have done on previous occasions.
There is no evidence that Mr Ruatita, who is aged 49, has any health problems and his good work history suggests that he would not have any difficulty in obtaining employment if he had to return to New Zealand. Neither would he experience any language or cultural difficulties in returning there. I accept, however, that for Mr Ruatita to return to New Zealand would cause him significant emotional and other resettlement difficulties, as Ms Darcy acknowledged. He has strong ties with Australia where he has lived for 20 years. The separation from his children would, in particular, cause him significant hardship, he has no contact with any family or friends in New Zealand, and would have nobody to support him in re-establishing himself.
I note that on 7 April 2008, Mr Ruatita received a formal warning from the Department that further misconduct would lead to fresh consideration being given to the cancellation of his visa. He acknowledged this on 16 April 2008.
CONCLUSION
Weighing up the primary and other considerations, I am satisfied that while the protection of the Australian community favours the cancellation of Mr Ruatita’s visa given his past criminal history, the evidence indicates that if he can abstain from alcohol and minimise his relationship with Ms X, which has been the principal source of conflict in his life in recent years and from which most of his misconduct emanates, the risk of his reoffending will be minimised. There is no doubt in my mind that Mr Ruatita is now fully aware of the likely consequence of any future misconduct – that fresh consideration will be given to the cancellation of his visa – and that if returned to New Zealand, this will mean separation from his children. In Mr Ruatita’s case this is a powerful disincentive to any future misconduct. In my view, while the primary considerations as to his being an adult on arriving in Australia and the length of time he was resident before committing a criminal offence generally favour the cancellation of his visa, they should be accorded less weight than the other primary considerations.
I am satisfied that the primary consideration of the best interests of Mr Ruatita’s children is that which should attract most weight in this case, and is not supplanted by the other primary considerations. Of the ‘other considerations’, the hardship that would flow from returning Mr Ruatita to New Zealand supports his visa not being cancelled. Weighing up all the considerations, this is a situation in which, pursuant to paragraph 5.2(4) of Direction 41, it is appropriate for the Australian community to accept more risk than might otherwise be expected, due to his having spent a major portion of his life in Australia and, in particular, because of the best interests of his children and the adverse effect separation would have on them.
DECISION
The decision under review should therefore be set aside and a decision substituted that Mr Ruatita’s visa not be cancelled.
I certify that the preceding 52 (fifty two) paragraphs are a true copy of the reasons for the decision herein of Deputy President R P Handley.
........[sgd]................................................................
Associate
Dated 16 July 2012
Date of hearing 5 July 2012 Date final submissions received 5 July 2012 Applicant In person Advocate for the Respondent C Darcy, Department of Immigration & Citizenship
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