Tiatia and Minister for Immigration and Multicultural and Indigenous Affairs

[2005] AATA 1173

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1173

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   N2005/1167

GENERAL ADMINISTRATIVE DIVISION		)
Re		Albert Faapito Tiatia

Applicant

And Minister for Immigration and Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal Professor GD Walker, Deputy President

Date29 November 2005  

PlaceSydney

Decision This matter is remitted to the respondent with a direction that the discretion be exercised in favour of not cancelling the applicant’s visa.

..............................................

Professor GD Walker

Deputy President

CATCHWORDS

IMMIGRATION – on-shore visa cancellation – substantial criminal record including assault on a police officer in the execution of his duty – discretion that the tribunal may exercise where the visa applicant fails the character test – examination of the applicant’s substantial criminal record since 1988 – examination of his family in Australia including his relationship with his fiancé and their plans to marry – examination of the courses he has undertaken –  consideration of the expectations and protection of the Australian community – the applicant concedes he fails the character test on the basis of his substantial criminal record – found that there is strong evidence of rehabilitation for the applicant including evidence of being a model prisoner with work and weekend release privileges – found that the risk of recidivism is small – found that the Australian community would not be averse to giving the applicant one last chance – the decision under review is remitted to the respondent on the basis that the discretion be exercised in favour of not cancelling his visa.

Migration Act 1958 ss 499, 501, 501(2), 501(6)(a), 501(6)(c)(i), 501(7)(c)

Re Sam and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003

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

REASONS FOR DECISION

29 November 2005	Professor GD Walker, Deputy President
Summary

1. The applicant, Albert Tiatia, aged 30, is a citizen of New Zealand. He came to Australia in 1987, with his mother and half-brother, at the age of 12. On 1 September 1994, he was granted a subclass 444 special category visa by operation of law under the Migration Reform Act. Between 1988 and 2000 he committed a series of criminal offences including break and enter with intent to commit armed robbery, dangerous driving, drive while disqualified, maliciously destroy property and assault a police officer in the execution of his duty.

2.      On 30 August 2005, a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, cancelled Mr Tiatia’s special category visa on the ground that he failed the character test because of his substantial criminal record in Australia and past and present criminal conduct.  That is the decision to be reviewed by the tribunal.

Issue

3. In the present case, it was conceded by Mr Tiatia, prior to the hearing, that he does not pass the character test because of his “substantial criminal record”, having received on 28 May 2003, a term of imprisonment of three years with a non-parole period of one year for assaulting a police officer in the execution of his duty and occasioning actual bodily harm, a term of imprisonment of three years with a non-parole period of one year for the offence of use an offensive weapon to prevent lawful detention, and 152 weeks imprisonment in lieu cancellation of his periodic detention order. The issue remaining, therefore, is whether the tribunal should exercise the discretion under s 501(2) not to cancel Mr Tiatia’s visa.

Background

4.      Mr Tiatia was born in Auckland, New Zealand on 30 June 1975 and is aged 30.  He is a citizen of New Zealand.  He first arrived in Australia in 1987 with his mother, Helen Tiatia, and half-brother, Henry, although the exact date of his arrival cannot be located from departmental records.  Mr Tiatia departed Australia on 25 May 1994 returning on 8 June 1994. He departed again on the 3 August 1994, returning on 17 August 1994.  He has had formal education only to year 10, which he did not complete.

5.      Between 1988 and 2003, Mr Tiatia was convicted of a number of criminal and driving-related offences (G p19).  His criminal record includes the following:

Sentence Court	Offence	Sentence
12/10/1988 Bidura Children’s Court Ryde	Stealing S117/501	Without conviction fined $50 (mf 196138)
06/08/1990 Bidura Children’s Court	1. Illegal Use Motor Vehicle	Without conviction recognisance s33(1)(B) self $100 good behaviour 12 months supv yost recog entered Scarlett CCM (sdc 37942)
2. Unlicenced Driver	Without conviction fined $50
06/08/1990 Bidura Children’s Court	1. Dangerous Driving	Without conv recog s33(1)(B) self $100 GB 12 mths supv yost lic disq 2 yrs recog entered Scarlett CCM (SDC 37942)
2. Stealing	Without conv fined $100
3. Unlicenced	Without conv fined $50 (SDC 18505)
4. Illegal use Motor Vehicle	Without conv reocg s33(1)(b) self $100 good behaviour 12 mths supv yost (SDC 37942)
16/10/1990 Bidura Children’s Court	1. Unlicenced	1 2 & 3. On each charge without conv prob 12 mths GB
2. Fail to stop	1 2 & 3.  On each charge without conv prob 12 mths GB
3. Negligent Driving	1 2 & 3. On each charge without conv prob 12 mths GB
16/10/1990 Bidura Children’s Court Ryde	Illegal  use Motor Vehicle	Without conv 100 hrs CSO
16/10/1990 Bidura Children’s Court Ryde	1. Unlicensed	1. Without conv prob 12 mths
2. Illegal Use Motor Vehicle	2. Without conv 100 hrs CSO
10/06/1992 Ryde Local Court Ryde	1. Drive whilst disqualified  (2 counts)	1 2 & 3. On each charge NBC conv s80AA WTI for penalty
2. Drive Unregistered vehicle	1 2 & 3. On each charge NBC conv S80AA WTI for penalty
3. Drive Uninsured vehicle	1 2 & 3.  On each charge NBC conv s80AA WTI for penalty
21/04/1992 Cobham Children’s Court Ryde	1. Disqualified Driver	1 & 2. On each charge NBC conv s80AA WTI for penalty
2. Steal Motor Vehicle	1 & 2. On each charge NBC conv s80AA WTI for penalty
07/07/1992 Ryde Local Court Ryde	1. Unregistered (s80AA warrant)	1 & 2. On each charge FD $25
2. Uninsured (s80AA warrant)	1 & 2. On each charge to $25
3. Disqualified driver (s80AA warrant)	3. FD $50 lic disq 6 mths until 06/02/93
23/01/1995 Downing Centre Local Court	1.Mid range PCA 2. Unlicensed driver	1. Fined $400 court costs $46, licensed disqualified for 12 months
15/11/1995 Ryde Local Court	1. Assault with intent to rob 2. Break and enter with intent to steal	1. & 2. Committed for sentence
12/9/1996 Parramatta District Court	1. Break and enter with intent to commit armed robbery	Indicted for periodic detention:  3 years commencing 20/9/1996
19/6/1997 Parramatta District Court	Cancellation of periodic detention	No appearance. Bench warrant to issue
2/7/1996 North Sydney Local Court	1. Mid range PCA 2. Unlicensed driver	1. Fined $300, court costs $50. Licence disqualified for 18 months 2. Fined $200, court costs $50
19/11/1996 Ryde Local Court	Drive while cancelled	Fixed term 14 days commencing 6/11/1996 concluding 19/11/1996. Disqualification concluding 1/7/1998.
1/11/2002 Central Local Court	Warrant to apprehend periodic detainee	To be dealt with at District Court
13/2/2003 Central Local Court	1. Use etc offensive weapon to prevent lawful detention 2. Assault police officer in execution of duty. Cause ABH – T1 3. Aggravated robbery - SI	1. & 2. Committed for sentence 3. Withdrawn
28/05/2003 Sydney District Court Surry Hills	1. Assault police officer in execution of duty cause aggravated bodily harm - T1(first instance warrant - 33921130)	1. Imprisonment : 3 years commencing 01/11/2003 non parole period:  1 year concluding 31/10/2004 (matters taken into account on Form 1) (DC 372678)
2. Use etc offensive weapon to prevent lawful detention etc‑T1	2. Imprisonment : 3 years commencing 01/11/2004 non parole period : 1 years concluding 31/10/2005 (DC 372678) Court case reference number 03/11/0122
3. Warrant to apprehend periodic detainee (first instance warrant - 32059832)	3. Imprisonment : 152 weeks non parole period : 1 year commencing 01/11/2002 concluding 31/10/2003 (DC 373668) Court case reference number 95/21/0462
25/07/2003 Central Local Court Surry Hills	1. Take & drive conveyance w/o consent of owner-T2 (first instance warrant - 33921092)	1. Taken into account on Form 1 : at Sydney DC on 280503 (DC 372678)
2. Maliciously destroy or damage property (first instance warrant - 33921105)	2. Taken into account on Form 1 : at Sydney DC on 280503 (DC 372678)
3. Resist or hinder Police officer in the Execution of Duty (first instance warrant - 33921121)	3. Taken into account on Form 1 : at Sydney DC on 280503 (DC 372678)
4. Use unregistered vehicle on road area (not a trailer	4. Taken into account on Form 1 : at Sydney DC on 280503 (DC 372678)
5. Unlicensed driver/rider (never licensed) - 1st offence	5. Taken into account on Form 1 : at Sydney DC on 280503 (DC 372678)
Drive vehicle recklessly/furiously or speed/manner dangerous	Withdrawn : dismissed

6.      On 29 June 2005, an officer of the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”) informed Mr Tiatia that the Minister or his delegate was considering cancelling his special category visa because of his substantial criminal record and past and present criminal conduct and taking into consideration his New South Wales criminal record and the sentencing comments of Judge Shadbolt of the New South Wales District Court and inviting him to comment (G p28).

7.      Mr Tiatia responded by letter dated 21 July 2005, received by the department on 22 July 2005.  In his response, he stated that he came here with his mother and half-brother for a better life, his mother and father separating when he was young because of his father’s alcoholism.  He admitted he had wasted years of his life, but had the support of his mother and now his fiancée, Airanne Davies, who he hoped to marry in the near future (his relationship with her has since ended).  He stated that he was remorseful for his actions and that there was no chance of him re-offending.  He has undertaken a number of courses in prison including Alcoholic Anonymous, Relapse Prevention, Narcotics Anonymous and Anger Management and was currently on a work-release program outside the prison, a “privilege” that he had earned.  He said:  “My criminal record all relates to negative choices made by one who is emotionally scarred.  As I believe I have deeply matured and I am in a good relationship with Airanne, the temptations no longer exist to indulge in criminal activity” (G p42).  He also submitted that he had changed considerably, he had not engaged in any criminal activities while in custody, there was no chance of re-offending because of his new found responsibilities with Airanne, he has never been disrespectful of other people’s property, and that he proposed that he be given a temporary visa which could be immediately withdrawn if he re-offended and that if he proved his good behaviour after 10 years, then his temporary visa could be replaced with a permanent visa (G p44).  His letter did not provide any information about his half-brother and did not contain any character evidence in support of his submissions.

8. On 30 August 2005, a delegate of the respondent decided to cancel Mr Tiatia’s special category visa because of his substantial criminal record and the continuing risk that he would re-offend, and having exercised her discretion under s 501(2) to cancel his visa (G p14). Mr Tiatia was notified of the decision by letter dated 6 September 2005. On 13 September 2005, he lodged an application for a review of that decision by the tribunal.

9.      Mr Tiatia was released from Silverwater Correctional Centre, New South Wales on 31 October 2005 and, by requirement of law, immediately detained at the Villawood Immigration Detention Centre, Sydney.

10. At the hearing, the applicant was represented by Sam Duggan, counsel, instructed by Anne O’Donoghue, solicitor, Anne O’Donoghue & Associates, and the respondent was represented by Patrick Reynolds, solicitor, Clayton Utz, solicitors. The evidence before the tribunal comprised the documents produced pursuant to s 501G of the Act (“the G Documents”), taken into evidence as Exhibit A1, together with the evidence submitted by the parties at the hearing. Oral evidence in person was given for the applicant by Albert Tiatia, Helen Tiatia, Romin Kapadia, Dennis Meadham, and Dr Christopher Lennings gave evidence by telephone.

Relevant Law and Policy

11. Under s 501(2) of the Act, the Minister may cancel a visa granted to a person if the Minister reasonably suspects that the person does not pass the character test (s 501(2)(a)) and the person does not satisfy the Minister that he does in fact pass the character test (s 501(2)(b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant grounds in the current matter are s 501(6)(a) and s 501(6)(c)(i). Section 501(6)(a) provides:

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

(a)the person has a substantial criminal record (as defined by subsection (7));

…

”Substantial criminal record” is defined in s 501(7) to include a person who “has been sentenced to a term of imprisonment of 12 months or more”.

12. Section 501(6)(c)(i) states:

(c)       having regard to either or both of the following:

(i)        the person’s past and present criminal conduct

…

the person is not of good character; …

13. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.

14. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act.  The Direction provides guidance on the application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.

The Offences

15.     In his statement tendered to the tribunal (Exhibit A5), Mr Tiatia stated concerning the incident on 27 March 2000, that on the night he had been drinking heavily and smoking the drug “ice” and that he was not thinking rationally:  “The police officer told me to stand next to my car.  I was a bit dazed and agitated and could not stand still. … I approached him and hit him.  I feel really bad about what happened that night and realise that I had lost control.”   Of the incident on 27 August 2002, he said “I certainly did not intend to cause any injury to the Officer and he was not on the motorbike when I hit it.”

16.     In relation to the assault on 27 March 2000, the applicant in his oral evidence denied that part of Judge Shadbolt’s sentencing comments in which his Honour quoted the police witness as saying that, in the course of the assault, the applicant had said “I’m going to get your Glock” and attempted to remove the officer’s automatic from his holster, failed to do so but instead removed a spare magazine from the officer’s belt.  It is settled law that the tribunal cannot in proceedings of this type canvass the correctness of any conviction or sentence.  The applicant was not, however, charged with attempting to steal the pistol or with stealing the spare magazine.  It may also be significant that there is no other suggestion that the applicant has had any involvement with guns, lawful or unlawful.  As the applicant pleaded guilty to all charges and the constable was apparently not cross-examined about the details of his report, the tribunal is entitled to take into account the applicant’s explanation about that aspect of the circumstances of the assault.

17.     Apart from that aspect, the applicant fully admitted his criminal history and did not attempt to justify, excuse or rationalise any part of it.  He accepted full responsibility for his misdeeds and expressed remorse for them, especially for the 2000 assault which, he said, “I regret most of all”.

Evidence of rehabilitation

18.     The applicant’s criminal history would normally by itself constitute an almost overwhelming case for visa cancellation, notwithstanding his difficult childhood, his lack of supervision because of his mother’s need to work at two jobs full time, and his resulting involvement with bad company, drugs and alcohol abuse.  What makes this case unusual, however, is the strength and quantity of the evidence of rehabilitation and recent good conduct which, importantly, began before there was any question of possible visa cancellation.

19.     Two officers of the New South Wales Department of Corrective Services gave written and oral evidence in his support.  While it is not uncommon for supervisors of prison workshops and training programs to submit a letter attesting to an inmate’s good behaviour and consistent work under their supervision, these witnesses went well out of their way to praise the applicant’s work, demeanour and progress to an unusual degree.  Mr Dennis Meadham works for Corrective Services Industries as a logistics services officer.  He is second-in-charge of the State’s main warehouse, which includes being in charge of civilian workers and inmates from Silverwater Prison Complex.  He has known the applicant for approximately 16 months, since he was interviewed for a position as a trainee warehouse storeman.

20.     The applicant started work at the warehouse with a 6.2 classification, which means he was able to work anywhere on the Silverwater complex, but not outside it, for a modest wage.  The warehouse is within the complex but outside the jail fence.  To be eligible to work in the warehouse, inmates must be of good behaviour and follow all prison and warehouse guidelines.

21.     Mr Meadham found the applicant to be reliable and hardworking and willing to perform any duty that was asked of him.  He never became refractory or involved in any disputes with staff or other workers.  In due course he became eligible for work release, which enabled him to leave the complex for short periods.  In that program he was paid the award rate for a storeman.  His duties involved learning the correct procedures for receiving, collecting and despatching, storing and rotation of stock, loading and unloading trucks, stamping certain items with business logos, stocktaking the various products produced by the department and private industry, and generally keeping the warehouse clean.

22.     He was later moved to the quality control section where a reliable worker was required to check the products produced by the department for quantity and quality.  He performed that task well also and was working in that section at the time his sentence expired.  At times he was required to assist the drivers when they had a delivery or pickup at various locations, sometimes as far afield as Goulburn.  The applicant did this on numerous occasions and never tried to escape or wander off.  The drivers never gave a bad report on him or on his attitude for work performance.

23.     Mr Meadham said that the applicant had learned the skills needed to work in a warehouse environment and in that respect was trained for employment once he was released.  Mr Meadham did not think the applicant would have any trouble finding employment and did not think it likely that he would re-offend.

24.     Mr Ramin Kapadia has been employed by the Department of Corrective Services since 1989, and for the last 10 years has been working in the work release program.  Currently he is a senior correctional officer and in charge of 100 inmates on that program.  The applicant was an inmate in the work release program from December 2004 until his release on 31 October 2005.

25.     To be eligible to join a work release program, an inmate must have a clean record and be shown to have been free from any use of prohibited substances.  Only about ten per cent of prisoners meet those qualifications.  Those who are accepted enter the program in the final 12 months of their sentence.  They must obtain work outside the centre, and every morning go to work on public transport, dressed in civilian clothing, and return in the evening.  They are searched and breath-tested every day and random urine tests are also conducted.  The inmates are fitted with electronic anklets that are monitored by the pre-release program unit.

26.     In stage one of the program the inmates can take weekend leave with their approved sponsors every 28 days and while on leave are permitted to take six-hour excursions on Saturday and Sunday to public places such as beaches, shopping malls, movies and museums, or visit family and friends.  Bars and gambling venues (even including newsagencies) are off limits.

27.     After six months, conditionally on good conduct, they can progress to stage two which allows them to go home every weekend.  They are monitored 24 hours a day by means of the electronic anklet and a home monitoring unit which is installed at the inmate’s residence.  Mr Kapadia said that the applicant was one of the model inmates who was on the program and he found him to be reliable, hardworking and well-mannered.  He always complied with any direction given by an officer.

28.     The applicant’s performance on the work release program was free of incidents and he got along well with jail staff and with other inmates.  Mr Kapadia said that the applicant has the skills and reliability to get ahead in a job outside prison “without any temperament”, deal with situations and deadlines and generally not be a problem in the outside world.  He has no concerns about the applicant being released into the community as he has learned from his mistakes and has a good family who will support him to do the right thing.

29.     Mr Kapadia said that in his experience the risk of an inmate re-offending after completing the program is only about one per cent.  That figure was disputed, however, notably by reference to Exhibit R1, a memorandum dated 17 November 2004 from a prison psychologist citing a 48 per cent statistical probability of offenders in the applicant’s position returning to law-breaking.  The estimate did not, however, refer specifically to those who had completed a work release program, and was written before the applicant in fact undertook that program.  The psychologist also recommended the applicant for C3 grading, the lowest security classification.

30.     The evidence of Mr Meadham and Mr Kapadia was fully corroborated by the applicant’s corrective services case management file (Exhibit A8).  The 75-page file is replete with uniformly favourable comments from supervisors and committees about his progress, unblemished record, completion of courses and vocational qualifications and freedom from drugs.  The report notes his good attitude, his acceptance of all forms of direction, the high standard of his work, the approval of his employers and supervisors, his genuine efforts in all respects, his neat, clean and tidy appearance, ability to work under supervision, courtesy, respect for others, cheerful disposition and general co-operativeness.  The file is striking not only for the number of comments, but the remarkable fact that there is not a single adverse or qualified remark among them.

31.     The applicant’s representative also filed with the tribunal before the hearing two offer of employment letters, one from Prestige Auto Body Shop offering the applicant employment as a car detailer, and the other from BMWise offering him the position of car washer/general hand (Exhibit A7).  The applicant said that if allowed to stay in Australia he would prefer to take the detailing job, as he already had experience in it and the pay was better.

32.     The applicant said that while in prison he did not join in with the Samoan group of inmates there because they were involved with drugs, which unfortunately are available at Silverwater Correctional Centre.  He was also to an extent excluded by that group in any event because he was not a drug user and refused to transport drugs into the prison when returning from weekend leave.  He undertook drug and alcohol rehabilitation courses that greatly helped him, and also completed some vocational courses.

33.     While on weekend leave he used to accompany his mother to St Giles’s Church at Ryde, where she is a regular parishioner.  He never felt tempted to drink while on leave.  During the week he remained in daily telephone contact with his mother, and the regularity of his contact with her was noted by correctional staff.

34.     On behalf of the Minister, Mr Reynolds pointed out that all this evidence of rehabilitation was amassed at a time when the applicant was under close supervision, either inside the Silverwater Complex or through the various monitoring mechanisms employed for those on work release.  It could not be assumed, he contended, that those results would be replicated if he were released into society.

Dr Lennings’s report

35.     That observation is quite correct as far as it goes, but there is further evidence suggesting that his rehabilitation is likely to be successful.  Dr Christopher J Lennings, a clinical psychologist, prepared a detailed report on the applicant dated 30 October 2005 (Exhibit A4).  He also gave extensive oral evidence by telephone at the hearing.  In essence, Dr Lennings thought that the applicant’s criminal violations had stemmed from an earlier lack of socialisation and a tendency to be reactive and impulsive.  His incarceration had actually been good for him because it had given him the opportunity for long-term sobriety and he had made full use of the rehabilitative opportunities presented to him in an effective way.  He has now developed self-control, which will be a primary factor in reducing the likelihood that he will re-offend.  He has had no disciplinary offences while in prison, has avoided any provocations and has not associated with groups that might make him vulnerable to resuming drug and alcohol use.  Previously, his life management skills had been poor, but he now had self-control and had good prospects of developing more extensive coping skills.  He would need to remain aware of the risks associated with drugs and alcohol and could face problems if he were in a personal relationship that became volatile.  In that context, his excellent relations with, and support from, his mother, with whom he would be living after his release, would be a positive factor.  Similarly, his heartfelt involvement in Kairos, a Christian organisation, would provide him with excellent support if he faced destabilising conditions.

36.     Although his history involved repetitive criminal conduct, with an escalation from his first violent offence in 1995, followed by a quiet period until 2000, it was not the usual trajectory of escalation of criminal behaviour.  There were specific subjective features involved that supported a conclusion that he is a good rehabilitation prospect.  He retains no physiological remnants of drug dependency, and provided he could remain at a distance from his former associations and take steps to create a support structure, he should be able to maintain his freedom from drugs and alcohol.  There are no observable risk factors in his behaviour or background and the dynamic rehabilitation factors were likely to be much more influential than the historical factors relating to his criminal record.  Even in relation to historical factors, it was important that his early conduct was not associated with violence.  If it had been, that would suggest a persistent lifelong offender.  His age was also a factor in his favour, as the years of highest risk for law-breaking are those between 18 and 25, and his transformational process had begun in earnest after that period.  If he were required to return to New Zealand, where he has no contacts, the progress he has made could be in jeopardy.

Mrs Tiatia’s evidence

37.     The applicant’s mother, Mrs Helen Tiatia, was born in 1951 in Samoa and migrated to New Zealand in the 1970s.  She lived there until moving to Australia with her two sons in 1987 and is now an Australian citizen.  The applicant is her second son and her first child from her second marriage.  She had another son after Albert, who died from SIDS in 1981 at the age of two months.  Both parents were depressed and shocked by that episode, which triggered her husband’s slide into alcoholism and violence.  She moved to Australia with her two sons mainly to escape his constant physical attacks on her and her sons.  Her husband joined them a year later, but Mrs Tiatia remained the family provider as her husband was unable to hold down any kind of job.  Because of her work commitments, the applicant was largely unsupervised when he was growing up and drifted into bad company and bad habits.  In 2003, her husband was imprisoned for six months on a drink driving conviction.  During that time both her son and her husband were in prison and she was working long hours, holding down two full-time jobs at the same time.  She had to visit her husband and son on different days of the weekend because they were separate jails.  When her husband was released from prison, however, he had beaten his alcoholism and was a reformed man in every way, another success story for the Corrective Services Department.  He is now working full-time in the construction industry doing foundation work.  Nevertheless, Mrs Tiatia continues to work at two full-time jobs in order to meet mortgage payments.

38.     Because of her long working hours, Mrs Tiatia has few friends and the applicant is her main confidant.  If he had to return to New Zealand she would have to consider returning also, but she has few links there, and with her age and limited formal education would find it difficult to obtain satisfactory employment.  If the applicant were allowed to remain in Australia, however, he would be working full-time and would help to support the family, so that she would be able to quit her second job and lead a more normal life.  She has also noticed that the relationship between the applicant and her husband has improved.  She fears that if her son were required to return to New Zealand, the relationship would not be preserved and her husband might not be able to remain free from alcohol.

39.     While the applicant was in prison he kept in constant telephone contact with her and regularly sent her money from his work release earnings to help her to meet family expenses.  She has spoken to the parish priest at St Giles’s about the possibility of his release and he has promised to arrange for the applicant to join a youth group that helps the aged and other needy people in the parish and which can offer him the basis of a peer-support network.  With her husband a new man and her son on the right track, she feels she can look forward to a much better life if the application is successful.  “The family that I had lost for a long time has now come back”, she said.

Application of the Law and Findings of Fact

40. As was stated above, the solicitor for Mr Tiatia conceded in his statement of facts and contentions (Exhibit A11), and counsel at the hearing repeated, that the applicant does not pass the character test by reason of s 501(6)(a) of the Act because he has a “substantial criminal record”, defined in subsection (7) as including a person who has been sentenced to a term of imprisonment of 12 months or more.

41. The issue for the tribunal therefore is whether to exercise its discretion under s 501(2) to decide, nevertheless, not to cancel Mr Tiatia’s visa. In so doing, the tribunal must have regard to Direction No 21 as a guide to the exercise of its discretion.

42.     Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:

Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.

Paragraph 2.3 sets out the primary considerations:

In making a decision whether to refuse or cancel a visa, there are three primary considerations:

(a)       the protection of the Australian community, and members of the community;

(b)       the expectations of the Australian community; and

(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.

Paragraph 2.4 explains:

The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community

43.     Examples of what the Government views as serious offences are set out in paragraph 2.6.  These include, in subparagraphs (f) assault or any other form of violence against persons and (n) any other crimes involving violence or threat of violence which cause concern to the welfare and safety of the Australian community.

44.     Paragraphs 2.10 and 2.11 refer the decision-maker to the likelihood that the conduct may be repeated (including any risk of recidivism), and to general deterrence – the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons.

Protection of the Australian Community

45.     The first factor to be considered under this heading is the seriousness and nature of the conduct involved.  In this case, Mr Tiatia has committed a number of very serious crimes as both a juvenile and an adult, including crimes involving violence.  His most serious offences involved violence against two police officers acting in the execution of their duty.  Paragraph 2.6 of Direction No 21 states:

2.6      It is the Government’s view that the following are examples of offences which are considered by the Government to be very serious:

…

(f)        murder, manslaughter, assault or any other form of violence against persons;

…

(n)       any other crimes involving violence or the threat of violence:

·such crimes are of special concern to the welfare and safety of the Australian community; …

46.     Paragraph 2.7 of Direction No 21 states:

It is the Government’s view that the sentence imposed for a crime is an indication also of the seriousness of the offender’s conduct against the community.  Decision-makers should have due regard to the Government’s view in this respect, including:

(a)the extent of the person’s criminal record, including the number and nature of offences, the time between offences, and the time that has elapsed since the most recent offence;

(b)the repugnancy of the crime:

·crimes involving violence or fraud against defenceless persons (such as children, the elderly, the disabled and the incapacitated) are especially repugnant to the whole community.

47.     In his sentencing remarks in the District Court of New South Wales on 28 May 2003, Shadbolt J described how Mr Tiatia had assaulted the police officer on 27 March 2000 by repeatedly punching him in his face and head and how he had attempted to take the officer’s service pistol from his holster (though the applicant disputes the latter point).  His Honour said:

Constable Grace was conveyed by ambulance to St Vincent’s Hospital where he was treated.  Pictures were tendered of the extensive bruising over most of his body.  He had a swelling to the left side of his face and the back of his head, and he suffered jaw pain when he opened his mouth.  He had welts and swelling on his back as a result of falling against the police car.

…

It was not until later that he was arrested and then following yet another assault on police when, on 27 August 2002, [when he] was stopped by Senior Constable Wilson for a random breath test.  In this course of this he was questioned about a licence which, of course, he did not have.

The police officer walked to the rear of the prisoner’s vehicle, … as he was doing this, he heard the prisoner put his car into reverse and drive it back towards him and his motor cycle.   He drove back swiftly at a speed which is estimated to be not less than 30 kilometres per hour for about ten metres.  Luckily the police officer was able to get out of the way … The motor cycle suffered extensive damage and the helmet worn by the police officer was also damaged.  The police officer suffered some soreness to his right hip, which apparently had been occasioned when he fell to the ground as a result of getting out of the way of the car.

…

These are both very serious matters and ones deserving of a prison sentence.  I have looked at the prisoner’s record to see what, if any, leniency can be extended to him and I note that he has convictions going back over ten years … These offences, having regard to his record, are so serious that only a prison sentence would suffice.

48.     In his statement of facts and contentions (Exhibit A11), the representative for the applicant submitted that the fact that the applicant had been arguing with his then girlfriend, who he believed had been unfaithful, and as a result was depressed and upset, should be taken “as providing some reason for, although certainly not excusing, the irrational behaviour of Mr Tiatia” in respect of the 27 March 2000 offence.

49.     In addition, the applicant has been convicted of a number of driving-related offences such as driving while unlicensed and driving while disqualified.  While the types of motor vehicle-related crimes committed by the applicant are not specifically listed as serious in Direction No 21, they can cause great public harm and are of concern for the welfare and safety of the Australian community, as well as causing disruption and cost.

50.     In his statement of facts and contentions (Exhibit A11), the applicant submits that his upbringing, which included domestic violence, sexual abuse, substance abuse, and the fact that most of his offending behaviour occurred between the ages of 15 and 21, should be taken into consideration.  The respondent contends in her statement of facts and contentions (Exhibit R2) that “these factors do not excuse the seriousness of the conduct involved”, and she is right.  The gravity of the offences involved remains the strongest factor in favour of visa cancellation in this case.

51.     Next, the tribunal is to consider the risk of recidivism.  Paragraph 2.10(b) of Direction No 21 states that a non-citizen with several previous convictions in Australia should be considered as having an increased risk of recidivism in light of past behaviour.   Judge Shadbolt noted in his sentencing remarks that the applicant “has good prospects of rehabilitation.  He is a young man who is obviously strong and could work when he gets out” (Exhibit A1).  In his statement of facts and contentions (Exhibit A11), the applicant’s representative submitted that there was strong evidence of rehabilitation through his client completing self-improvement courses in relapse prevention, drug and alcohol, personal effectiveness, anger management, senior first aid, occupational health and safety, basic computers and forklift driving as well as being involved with alcoholics anonymous, narcotics anonymous and the Kairos Christian fellowship group, through his client being allowed weekend release and being employed at the Corrective Services Industries Warehouse.

52.     The risk of recidivism is highly relevant in this matter because of the applicant’s history of drug and alcohol abuse and the fact that he has engaged in criminal conduct on a repetitive and continuous basis, his crimes having become more serious over time.  Judge Shadbolt noted in his sentencing remarks that the applicant has experimented with cannabis, amphetamines, LSD and ecstasy and was addicted to heroin by the age of 23 (Exhibit A1).  He said he also used “alcohol as an adjunct to other substances”.   Dr Lennings in his report (Exhibit A4) stated that the applicant became a very heavy drinker from the age of 15 and commenced using illicit drugs – cannabis, amphetamine (“speed”), methamphetamine (“ice”), ecstasy, heroin, cocaine, benzodiazepines and hallucinogens – from the age of 16.  Dr Lennings continued:

He would use almost any drug that was available, whenever it was available, often to the point where it would have significant psychotropic affects upon him including severe paranoia at times.

53.     Dr Lennings reported that when the applicant was in prison he had made use of various drug and alcohol programs and at the time of the interview, had stopped using both drugs and alcohol.   When considering Mr Tiatia’s substance abuse in the light of the risk of recidivism he stated:

Substance use remains an important indicator for the likelihood for further behavioural difficulties.  Clearly Mr Tiatia has had the opportunity to maintain his substance use patterns and has avoided those opportunities both in gaol and when on leave.  He presents as a person who has come to recognise the difficulties substance use has presented for him.  Nonetheless it is the fact that once he is free in the community it will be more likely that temptation for substance use will arise.  Despite his very strong intentions not to use and the apparent insight that he has gained into not using, it will be necessary to maintain some kind of monitoring process for him.  … ongoing substance abuse counselling in the first 6 months of release would be helpful … Random urine-analysis could be a part of such program.

In conclusion, Dr Lennings stated:

Despite the indicative history, Mr. Tiatia does present as having made major gains and hence is a good rehabilitation prospect.  Assessment of his recidivism potential reveals some issues that will need monitoring (such as relationship stress and peer associations). His main risk factor remains substance use although he does give the impression of being able to control that in the future.

54.     In his statement tendered to the tribunal (Exhibit A5), the applicant said:

I am proud of the fact that I have achieved and maintained a state of sobriety from drugs and alcohol since I entered the prison system.  Since I have successfully completed and derived benefit from the alcohol and drug programmes, I feel I am no longer in a position where I would be tempted to commit further offences in the future.  I have positive goals to strive for now and it is my hope to build a productive and happy life in Australia if I am given another opportunity to remain in Australia.

55.     The respondent in her statement of facts and contentions noted, and Mr Reynolds reiterated, that the applicant had undertaken steps in prison to rehabilitate himself, but submitted that “this rehabilitation is untested and has occurred only whilst Mr Tiatia has been under strict supervision, either in prison or immigration detention.  Therefore, this is insufficient to outweigh the seriousness of the conduct involved” (Exhibit R2).

56.     While it is true that the applicant’s rehabilitative progress has not been put to the test of complete release into society, it has received partial testing through his involvement in the work release and weekend leave programs.  Particularly striking and unusual is the wholehearted and active support give to his application by two corrective services supervisors who have observed his conduct over extended periods and who have seen his performance and progress as exemplary.  That evidence is supplemented by the wide range of entirely favourable comments contained in his case management file that have come from a variety of different officers and committees within the corrections system.  Among all the people who have been required to observe and comment on his behaviour in custody, there is not one who has made an unfavourable or even a qualified comment.

57.     In addition, Dr Lennings evaluates him as a promising candidate for full rehabilitation, especially if he can have access to counselling and monitoring, which he is likely to receive through his involvement with Kairos, the St Giles parish, the probation service and the alcohol counselling groups which the applicant says he intends to take part in.  If released he would be living with his family, where his close relationship with his mother, and his greatly improved bonds with his father, will help him to weather the inevitable stresses and disappointments of life, including any upsets he may experience in attempting to establish a lasting relationship with a member of the opposite sex.  Although in a case such as this one can never entirely exclude the possibility of re-offending, in my view the risk of recidivism is small.

58.     The third consideration relevant to community protection is general deterrence, which aims to deter others from committing the same or similar offences.  “Whilst not a conclusive factor in itself, general deterrence in an important factor in determining whether to refuse or cancel a visa” (Direction No 21 paragraph 2.11).  Deterrence is a factor shown by contemporary research to play a more important role in crime causation than had previously been thought (see Re Sam andMinister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003 paragraph 31). Published works attacking deterrence as a relevant factor tend to rely on theoretical arguments or assertions and do not mention any empirical evidence (e.g. J McGuire, Deterrence in Sentencing:  Handle with Care (2005) 79 ALJ 448).

59.     Mr Duggan submitted that in this case the deterrence principle operated in the reverse direction.  If the applicant’s visa were cancelled after he had taken such great strides towards rehabilitation, the knowledge of that result might discourage other inmates from making serious efforts to put criminal behaviour behind them and work their way back into society.  Mr Reynolds responded that the proper test to be applied was not the effect on persons already convicted of crime, but on those contemplating criminal activity in the first place.  He is no doubt right about that, but I think the deterrent factor should normally count in favour of visa cancellation where it is otherwise fair that it should.  The justice system, including its adjuncts in migration law, must be seen to be fair as well as firm if it is to maintain the moral force that it needs in order to command generally voluntary compliance.  In my view it would not be fair effectively to make an example of a man who, although he has seriously offended, has in the time available to him done everything in his power to make amends and to earn society’s trust.

Expectations of the Australian Community

60.     The second primary consideration is set out in paragraph 2.12 of Direction No 21 and states that the community expects non-citizens to obey Australian laws while in Australia.  Failure to do so may make it appropriate to cancel such a person’s visa.  “Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concern or offences is such that the Australian community would expect that the person … should be removed from Australia”.

61.     The applicant has accumulated a very serious criminal history including assaulting two police officers in the course of their duty.  He also has numerous convictions for driving-related offences which cause the community great public harm and financial expense.  While the community would normally expect a non-citizen with such a record to be removed from Australia, I think that when there is such strong evidence of rehabilitation and of a strong resolution to live a law-abiding and useful life, the community would not be averse to extending one last chance.  After release the applicant would, after all, be under probation and would be closely observed by the migration authorities.  He should be well aware, and if he is not I have no doubt the department will make him so, that any further contravention will unfailingly result in visa cancellation proceedings that are highly likely to have an adverse result for him.

Best Interests of the Child

62.     There is no child who would be adversely affected by the cancellation of the applicant’s visa.

Other Considerations

63.     Having applied the primary considerations, the tribunal is then required to take into account a number of other considerations to which a decision-maker is directed by Direction No 21, which, though generally given less individual weight than that given to the primary considerations, may have a bearing on the appropriate decision.  These other considerations include:  the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; any evidence of rehabilitation and any recent good conduct; and whether the application is for a temporary visa or permanent visa.

64.     Mr Tiatia’s mother, Helen Tiatia, his father and half-brother all reside in Sydney.  The applicant’s representative tendered a report of Jill F Burrett, psychologist, dated 28 October 2005 which was prepared for the purposes of these proceedings following an interview with Mrs Tiatia on 24 October 2005 (Exhibit A10).  After detailing how Mrs Tiatia had been the sole earner and sole source of family support for the applicant and his half-brother because of the father’s long-standing problems with alcohol, she stated that Mrs Tiatia was concerned about her son returning to drugs if he did not have the support of his family.  She concluded that “if Albert were to return to New Zealand on character grounds, she would want to go too, to support him, and this would mean that she would have to face the dispersal of her newly more positive family situation.  I would have grave concerns for this family if Albert were to be deported”.  A report was also tendered from Dr Phillip Grove, who has been Mrs Tiatia’s general practitioner since January 2003.  He stated that she suffers from a number of medical conditions including high blood pressure, and that the worry of her son being returned to New Zealand “impacts on her general health including her blood pressure” (Exhibit A9).

65.     It was also submitted on behalf of the applicant that having lived in Australia for the past 18 years and having no contacts in New Zealand, he would experience hardship if required to return there.  Not a great deal was made of the point and indeed it seems unlikely that a young, able-bodied, presentable, well-mannered young man who is willing to work and has useful skills would suffer significant hardship in becoming established in New Zealand, whether he had family or a support network there or not.  On the other hand, it is clear that his parents, and especially his mother, would experience emotional hardship and disruption if he were required to return to New Zealand.

66.     That is not a decisive consideration, but it points in the same direction as the conclusion I have reached on the major considerations.  The case was strongly argued on both sides and there are powerful considerations at work on both sides.  My conclusion is that notwithstanding the seriousness of his criminal record, his exceptional progress in rehabilitation makes it unnecessary to cancel his visa in order to protect the public, and community expectations would not be affronted by offering one last chance to a person in his position.

67.     The decision under review is remitted on the basis that the discretion be exercised in favour of not cancelling the applicant’s visa.

I certify that the 67 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President

Signed:         .....................................................................................
  Associate

Date/s of Hearing  24 November 2005   
Date of Decision  29 November 2005
Counsel for the Applicant         Mr S Duggan
Solicitor for the Applicant          Ms A O’Donoghue, Immigration Solutions
Solicitor for the Respondent     Mr P Reynolds instructed by Ms C Petre,                  Clayton Utz