Tipuna Tihema and Minister for Immigration and Border Protection

[2013] AATA 715

[2013] AATA 715  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/3417
Re	Tipuna Tihema
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Ms N Bell, Senior Member
Date	4 October 2013
Place	Sydney

The Tribunal affirms the decision under review.

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

Ms N Bell, Senior Member

CATCHWORDS

IMMIGRATION – Visa cancellation – character grounds – substantial criminal record – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 501(2), (6), (7)

SECONDARY MATERIALS

Ministerial Direction No. 55 on Visa Refusal and Cancellation under section 501

REASONS FOR DECISION

Ms N Bell, Senior Member

1.       Tipuna Raniera Tihema, now a man of 26 years, first arrived in Australia in September 2000 and stayed for 15 days. He later returned in April 2001 at 13 years of age. He has remained here, as a citizen of New Zealand on a Special Category Temporary visa, ever since.

2. On 11 July 2013 the Minister decided to cancel his visa on the grounds that he did not satisfy the character test set out in section 501 of the Migration Act 1958.

3. This was not the first time the Minister cancelled Mr Tihema’s visa. On 30 September 2010, his visa was cancelled on the basis that Mr Tihema did not pass the character test in the Migration Act. That decision was set aside by a differently constituted Tribunal on 14 December 2010.

4.       After that decision by the Tribunal, Mr Tihema recorded nine convictions over a period of 13 months including assault occasioning actual bodily harm, larceny and intimidation, prompting the Minister to cancel his visa again. In March this year, while Mr Tihema was still in prison, his daughter was born.

5. Section 501(2) of the Act provides that the Minister may cancel a visa if “the Minister reasonably suspects that the person does not pass the character test”. Section 501(6) of the Act provides that a person does not pass the character test if the person has a “substantial criminal record”. “Substantial criminal record” is defined in section 501(7) of the Act as, among other things, having been sentenced to a term of imprisonment of 12 months or more. There is no dispute that Mr Tihema does not pass the character test, given that he was sentenced to 12 months imprisonment for affray in February 2010.

6.       The discretion of the Minister to cancel Mr Tihema’s visa is thus enlivened. In exercising the discretion, the decision maker must apply Ministerial Direction No. 55 on Visa Refusal and Cancellation under section 501 of the Act. This Direction superseded Direction No. 44 and came into effect on 28 July 2012 and varies from the previous direction in that it adds, to a range of primary and “other” considerations in the exercise of the discretion, a set of principles expressed to “provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to cancel or refuse a person's visa under section 501”. The principles are:

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.

7.       The Direction then 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.

8.       The primary considerations in the Direction in respect of visa holders are:

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.

9.       These considerations are elaborated on by a range of factors to which regard must be had. The additional “other” considerations contained in the Direction are indicated by the headings that appear below.

PRIMARY CONSIDERATIONS

10.     The primary considerations relevant to Mr Tihema’s circumstances are the protection of the Australian community; the strength, duration and nature of his ties to Australia; and the best interests of minor children.

Protection of the Australian Community

11.     The Direction provides further guidance to decision makers in assessing the level of the risk of harm to the community by identifying as factors relevant to that assessment the nature and seriousness of the person’s conduct to date and the risk to the Australian community should the person commit further offences or engage in other serious conduct.

12.     Mr Tihema’s full record of convictions is attached at Appendices A and B. In 2010 the Tribunal described his offending up to that point (see Appendix B) as not “at the serious end of the spectrum”. A review of his convictions to that point shows that the majority were for shoplifting, possession of stolen goods, take or be carried in a stolen conveyance, and malicious damage to property. The only conviction involving violence was for affray, for which Mr Tihema was sentenced to 12 months imprisonment, suspended on his entering into a bond. Three further shoplifting offences breached his bond and he went to prison and was released on parole after five months.

13.     I note that on appeal against sentence for the affray conviction, the District Court Judge Sides said:

The affray involved his [sic] in a fight, but it is clear on the facts, it seems to have come from the CCTV, that the other person was the one who initiated it. He is the one who shaped up and took off his shirt and the appellant then became involved in the fight.

14.     I agree with the finding of the earlier Tribunal that this puts this conviction at the lower end of the scale of seriousness.

15.     Following the Tribunal’s decision in 2010, Mr Tihema was convicted of a further nine offences. These are listed in Appendix A.

16.     Again, the bulk of these convictions are for minor matters with two instances of theft by shoplifting or larceny and one of destroy or damage property. Of more concern are two convictions for offences involving violence: assault occasioning actual bodily harm and intimidate and intend fear of physical/mental harm. The sentence for assault occasioning actual bodily harm was eight months imprisonment suspended on entering into a good behaviour bond and for the conviction of intimidate the sentence was eight months imprisonment with a non parole period of four months.

17.     Mr Tihema said that the assault on 21 April 2011 was on his brother, and occurred after Mr Tihema sought to recover from him, at his father’s request, some goods his brother had stolen from their father. Mr Tihema said he had been drinking. He described his brother as “not all there” but it was unclear whether he knew his brother had been diagnosed with a mental illness and had been assessed as having a mild intellectual impairment at that time or, indeed, whether that diagnosis and assessment had yet been made. The Police Facts Sheet describes Mr Tihema having punched his brother in the head and a fight ensuing and progressing onto the street. Mr Tihema’s mother, Ms Tu, was a witness to the incident and described in her evidence to the Tribunal how Mr Tihema and James were punching each other. She said she was scared and that it gave her “flashbacks” to her former husband who had subjected her to domestic violence. She said she raced to her neighbours’ in fright. She said Mr Tihema was drunk. Ms Tu said that the injury received by his brother as a result of the assault by Mr Tihema was a hairline fracture of his finger.

18.     Dr Peter Ashkar, Consultant Forensic Psychiatrist, took the following history from Mr Tihema about the incident:

“Mr Tihema committed the assault occasioning actual bodily harm against his younger brother, after the younger brother had stolen property from their father. He had used alcohol and methamphetamine. These substances had impaired his judgement and he had not considered the consequences of his actions. He had presupposed his behaviour to be a legitimate form of discipline for his brother’s wrongful behaviour. “I was going to give him a hiding. He’d done it before. He doesn’t listen. He’s got a mental illness. He’s not all there.” With the benefit of hindsight he expressed remorse for his behaviour. “I apologised. I said I was sorry because we don’t talk to each other and I feel pretty bad.”

19. Of the Apprehended Violence Order that was obtained by the Police following the fight, naming Mr Tihema’s brother as the protected person, she said she thought it was an order to have no contact with and to not harass his brother for a period of 12 months. I note the submission on behalf of Mr Tihema that by virtue of the provisions of Section 27 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) in circumstances of domestic violence the Police have no option but to seek an Apprehended Violence Order.

20.     As to the intimidate offence that took place on 1 September 2011, Mr Tihema said he had gone to stay at his aunty’s house because, he said, he had nowhere else to go. The victim of the offence is his cousin’s girlfriend who was also staying at the house along with a number of other cousins. The victim has a child who was three or four years old at the time of the offence and who was also staying at the house. Mr Tihema said he went to the pub with his cousins in the evening and drank alcohol, smoked cannabis and played the poker machines. They were later joined by the victim and her friend.

21.     He said the victim’s friend asked him if he wanted to drive the van back home. I note that Mr Tihema does not have a driver’s licence and did not have one at the time of the offence. I also note his evidence that he was drunk and under the influence of cannabis at the time. Mr Tihema said he wanted to drive and the victim interrupted, objecting to his driving. Mr Tihema said this was probably because he was “wasted”. He said the victim then punched him in the face and he then slapped her and pushed her against a table. He said she told him to leave his aunty’s house. He said he was later thrown out of the hotel and walked back to his aunty’s house.

22.     There, he commenced to cut some cannabis with a pair of scissors and was doing so when the victim and others came home. He said he was holding the scissors in his hand but not brandishing them. Mr Tihema said the victim threw a child’s toy at him, some words were exchanged and he took some of his beers out of the fridge and left. From outside the house he threw an unopened bottle of beer at the victim’s bedroom window, smashing the window. He said he ran to the park and cried. His evidence about his awareness of whether the victim’s child was in the room was contradictory. First he said he did not know she was there. He also said that it was alright to have smashed the window because the victim had hit him and he was really angry. Later he said he realised when he was in the park that the child was in the room and became remorseful. He said he was sorry the whole night had happened and had no intention of endangering the child.

23.     The Police Facts Sheet describes more aggression on Mr Tihema’s part than he stated in his evidence. However, neither the victim nor the other witnesses to the incident gave evidence to the Tribunal.

24.     It was submitted on behalf of the Minister that there is a trend of increasing seriousness in Mr Tihema’s offending. The basis for this submission was that in the period following his first Tribunal application he committed a further two offences involving violence. For Mr Tihema it was submitted that the sentences he received for these later offences were less than the sentence he received for affray. I note the evidence of Dr Ashkar, Forensic Psychologist, that the two later violent offences do not establish a pattern of violent offending.

25.     I was referred to an Apprehended Violence Order against Mr Tihema for the protection of his then minor younger sister in March 2006. Mr Tihema had no memory of this except to say that he had slapped his sister. His mother, Ms Tu, knew of it but was not familiar with the details.

26.     The Direction provides that crimes against vulnerable people, such as minors and people with a disability, are serious. I note that Mr Tihema’s brother has a psychiatric and intellectual disability. I also note that Mr Tihema’s sister was, at the time of the apprehended violence order, a minor.

27.     The cumulative effect of Mr Tihema’s repeated offending is to show a lack of sensitivity to punishment and a failure to consider the consequences of his actions. It also shows a disregard for the law, evidenced also by his repeated failures to abide by supervision orders. I note Dr Ashkar’s evidence that Mr Tihema has, to this point, been relatively unaffected by punishment. He described him as a person who, because of his history of domestic violence as a child and young person at the hands of his father, and because of his mother’s consequent departure from the home, has very little regard for himself. At the age of 26 Mr Tihema has what one magistrate described as a “horrible record”.

28.     Mr Tihema has had multiple warnings. First, he received a formal warning from the Department on 30 November 2007. His visa was subsequently cancelled, he was taken into immigration detention and he underwent the process of review of the cancellation decision in the Tribunal. At that hearing the evidence was ventilated, including Mr Tihema’s own evidence that he wanted to avoid the problems he has had in the past. I take these events as constituting further warnings in that they underlined the likely consequences of further offending. Nonetheless, four months after he was released from immigration detention in 2010 Mr Tihema offended again, albeit in a minor way, and went on to offend a further eight times, including two violent offences, before being incarcerated again.

29.     While I accept that Mr Tihema’s offending and conduct is not at the high end of the scale of seriousness, even with his most recent violent offences, there are considerations which increase the seriousness with which I must view it. First, his assault on his brother was an assault on a person he considered to be “not all there”, regardless of any formal diagnosis that had yet to be made or communicated to him. Second, his own description of his conduct in the incident concerning his cousin’s girlfriend included his having thrown a full bottle of beer at and smashing the window of her room in which her child was sleeping. I note his remorse about this, and I accept that he did not mean to endanger a child, but the fact of his having aimed for the victim’s bedroom window remains as an indication of reckless violence. There is also the apprehended violence order obtained against him for the protection of his younger sister when she was a minor. He said he had “slapped” her and recalled nothing else. His brother, his sister and the sleeping child were all vulnerable people at the time of the actions he took. This adds to the seriousness of the conduct. According to the Direction, his brother’s vulnerability adds to the seriousness of the assault offence.

30.     Mr Tihema’s violent offending (his convictions for affray, assault and intimidation) may not be sufficient to establish a pattern of violence, but they do indicate a trend. Prior to the previous cancellation of Mr Tihema’s visa, he had, in a record of some 40 convictions, just one conviction for a violent offence (affray). Since he was released from immigration detention in 2010, of his further nine convictions, two are for violent offences. He has been convicted of proportionally more violent crimes since he was released from immigration detention. This emerging trend adds to the seriousness of his offending.

31.     Prior to this increase in violent offending, Mr Tihema had the ultimate warning: cancellation of his visa. The real consequences of cancellation were underlined by the Tribunal review process. The warning could not have been louder or clearer. He faced deportation and experienced immigration detention. He was given another chance in part on the basis of the evidence he gave of his intention to engage in rehabilitation. This adds to the seriousness of his offending.

32.     Mr Tihema explained his reoffending after release from immigration detention as the result of having broken up with his then girlfriend and having left his job because he was not being paid enough for very long hours of work. He said “things went downhill from there”. His first offence after release from immigration detention was possession of prohibited drug. He said “I was hanging out. I needed a smoke. I was just trying to get to home to have a smoke.” He said he knew his visa could be cancelled. The assault offence followed soon after.

33.     Mr Tihema has alcohol, cannabis and gambling addictions. He said of alcohol that his practice was to drink until he blacked out. He said he smoked cannabis every day during the period of his offending. He would spend his entire earnings, sometimes as much as $1,000 per week, on poker machines and have no money left to live on.

34.     All of this must be viewed against the background of Mr Tihema’s childhood and young adulthood. This background also informs any assessment of the risk of re-offending.

35.      Mr Tihema described his father as a man who would often be violent and snap over little things. He said “He would start beating us up for no reason sometimes.” He said that up to about one year ago, when his father cut down his drinking, he would still “fly off the handle” and Mr Tihema would have to leave the house and stay wherever he could until things cooled down. He said it would make him very lonely and angry and he would take it out on someone.

36.     Mr Tihema said that when his mother left New Zealand in 2000, when he was 12, he was very sad and hardly spoke to her at all. When his father and other siblings followed her to Australia the next year things were good until his parents started fighting again and finally separated a year later. From then on he bounced between parents. Mr Tihema’s mother now lives in Northern New South Wales.

37.     Dr Ashkar described the effect of this background on Mr Tihema’s personality. He said Mr Tihema’s personality has not developed normally and, although not a particularly violent person himself, he sees violent behaviour as the norm. He said that having been raised in a household where violence was the norm, he does not appreciate that it is abnormal. When referred to the incident with his cousin’s girlfriend and the bottle through the window, Dr Ashkar said that because of Mr Tihema’s developmental experiences, that is “how his world works”. He said there is an instability in Mr Tihema’s personality that explains his unpredictable and occasional violence.

38.     Dr Ashkar said Mr Tihema requires a specialist and targeted treatment approach in order to address his criminogenic needs in the following ways:

(a)His poorly controlled substance use (alcohol and cannabis) requires group based treatment;

(b)His personality issues require one on one treatment by a forensic psychologist or psychiatrist with experience in criminogenic issues;

(c)His gambling addiction requires specific group based treatment.

39.     Dr Ashkar considered that without this targeted treatment there will be a repeat of past offences or offences of a similar nature; with it, the risk of his reoffending will be minimised. He said Mr Tihema lacks insight into his need for treatment, but he does recognise that he has a problem. He said he has not yet reached the stage where he is ready to seek treatment for his own sake, but he is motivated to seek treatment for the sake of his baby daughter. He considered that there has been a shift in Mr Tihema’s thinking following the birth of his daughter six months ago and he is now thinking beyond himself and about the consequences of his actions for others. He said Mr Tihema really wants to be a good father.

40.     Mr Tihema confirmed this in his evidence. Although, like most young people who have not experienced the demands of parenthood, he appeared to have little appreciation of the extent of those demands, he made it clear that he wants to provide for and protect his daughter. He is not an articulate man, but when he spoke of his daughter he became animated and smiled for the only time in the hearing. The question is whether he has the personal resources and motivation to obtain and persevere with the considerable and specific treatment he needs. I am concerned that he does not.

41.     At the last hearing before the Tribunal, Mr Tihema and his mother gave evidence of their plans for his rehabilitation, concerning one rehabilitation program in particular. Mr Tihema said that when he was released from immigration detention he commenced to work such long hours that he did not have time to attend rehabilitation. Mr Tihema’s mother, Ms Tu, said that the difficulty was that because Mr Tihema was not receiving Centrelink payments he was not eligible for the program they had in mind. He attended no groups and had no counselling.

42.     Mr Tihema attended some rehabilitation courses during his last stay in prison, having himself requested assessment for therapeutic programs, including the ‘Getting Smart Program’ and the ‘CALMMAA Program: Controlling Anger and Learning to Manage it, Male Australian Adaptation’. He had previously been noted by Corrective Services officers as having an “improving attitude”. He received positive feedback from Corrective Services officers on 25 February 2013 who recorded that he “is an active participant in this program and appears to be gaining some insight into destructive behaviours”. On 24 April 2013 a Corrective Services officer noted that Mr Tihema “Has successfully completed all sessions of CALM, appears to have gained some insight into his own behaviour as well as gaining knowledge for the tools required to change and maintain his emotions including Anger.”

43.     These are positive developments for Mr Tihema, but, given Dr Ashkar’s evidence about his need for targeted specialised treatment, this is not enough.

44.     I note that Mr Tihema also undertook a residential rehabilitation program from March 2008 to January 2009. Mr Tihema said the program was helpful to him but, after six months in the community he began to drink and use cannabis again.

45.     This time things have advanced somewhat. Mr Tihema has been accepted by the Work and Development Work Order Service to take part in the Work and Development Order Scheme. This Scheme involves Mr Tihema’s participation in workplace training and drug and alcohol counselling. Two sessions of two hours per week which I understand will cover alcohol, substance abuse and gambling and will have the added advantage of allowing him to discharge his debt in fines at the rate of $1,000 per month. Mr Tihema has also expressed a desire to see his old drug and alcohol counsellor at Cumberland Hospital, the one he saw when he was in residential rehabilitation there. I heard no evidence that he has made arrangements to do this. This is a start, but is it enough and is Mr Tihema likely to persevere with rehabilitation?

46.     Mr Tihema also talked about the support he receives from his fiancé, Ms Richardson, the mother of his child. They commenced their close relationship in March of 2012, having first met in 2010. In April 2012 Mr Tihema moved in with Ms Richardson, her mother and her 14 year old sister. He lived there with them until he went to prison in June 2012. Their daughter was born in March 2013. Ms Richardson expressed love for Mr Tihema and stated her willingness to support him in any way she could. She appeared to be unaware of many of the details of Mr Tihema’s offending and stated no knowledge of his gambling addiction. She said she would help him by “being by his side”. She had no knowledge of Mr Tihema’s treatment needs. She volunteered that she and Mr Tihema had each agreed to stop drinking in March 2012. Mr Tihema confirmed that he had not drunk alcohol since that time. They plan to marry on 1 October 2013.

47.     Mr Tihema’s mother also gave evidence of her intention to provide support to Mr Tihema. She has offered him the use of a car. She considered it a breakthrough that he will be eligible for Centrelink benefits. She is optimistic about the programs and job network support that will open up for him. She considers that nothing went right the last time Mr Tihema was released from immigration detention and that now his chances are much better. She considers that now he is eligible for Centrelink benefits he will have no need to steal. She considered the birth of his daughter has had a big effect on him.

48.     I note that at the last hearing before the Tribunal, Mr Tihema’s then girlfriend gave evidence that she too would provide him with support.

49.     I note the statement of Sophie Tihema, Mr Tihema’s aunt, who states that he will have the family’s support if he is released into the community.

50.     I also note the statements of Mr Tihema’s fiancé’s mother and aunt who attest to Mr Tihema’s good character.

51.     Dr Ashkar said that historically, Mr Tihema has offended notwithstanding the supports around him. He stressed again the importance of targeted specialist treatment.

52.     Using the Violence Risk Scale tool to estimate the risk of Mr Tihema’s violent recidivism, Dr Ashkar predicted that the likelihood of Mr Tihema reoffending is moderate. I note that, according to the tool, he was at the high end of the moderate range. Dr Ashkar identified substance abuse, criminal personality, criminal attitudes, poor work ethic, emotional control, insight into violence, impulsivity and compliance with supervision as prominent risk factors for Mr Tihema.

53.     Dr Ashkar reported that in his assessment of Mr Tihema’s personality functioning, using the Million Clinical Multiaxial Inventory – III Clinical Personality Pattern Scales, Mr Tihema’s responses indicated high range elevations on the Antisocial and Sadistic scales and low range elevations on the Depressive, Negativistic and Masochistic scales. He reported that personality styles colour behaviour and are typically expressed during times of stress. He described the relevant styles as follows:

People with Antisocial personality styles have little respect for social norms. Their behaviours are impulsive and hedonistic; their moods are irritable and aggressive; and they have a reckless disregard for the safety of themselves and others. They are unlikely to sustain long term employment and frequently have legal and substance related difficulties.

People with Sadistic personality styles are callous and aggressive. They exert power and control to achieve their goals. They are relatively unaffected by pain and punishment and act in a manner that is reckless and daring. In the extreme, they are vicious, explosive, violent, and brutal in their behaviour. Noticeably absent will be a sense of shame, guilt, sentimentality, remorse and internal conflict.

People with Depressive personality styles think themselves into depression. They view themselves, their experiences, and their future in negative terms (depressive cognitive triad). They consider themselves inadequate, undesirable, and worthless; they interpret their experiences in negative ways (e.g., the glass is half empty rather than half full); they blame themselves for negative life events; and they have a pessimistic view of their future.

People with Negativistic (i.e., passive-aggressive) personality styles are highly compliant. They consistently demonstrate social propriety and interpersonal respect. However, beneath their compliant veneers are intense desires to rebel and to assert their own self-oriented feelings and impulses. This incongruity of behaviour and thought gives rise to internal conflict, negative mood states, and erratic behaviours (e.g., moodiness, anger, resentment, stubbornness, and hostility).

People with Masochistic (i.e., self-defeating) personality styles do not feel deserving of happiness or pleasure. They respond to life with little enthusiasm. Their interpersonal relationships are self-sacrificing and they allow others to exploit them. They focus and ruminate on past failed relationships and disparage personal achievements. They are often anxious, mournful, and tormented. They are generally so absorbed in their own suffering and misery that they lack empathy for others.

54.     Mr Tihema’s high range elevations in the Antisocial and Sadistic personality scales underline the need for specialist forensic psychiatric or psychological counselling.

55.     The combination of Mr Tihema’s personality instability, his need for an elaborate targeted and specialised treatment regime for his personality and addiction problems, the minimal impact on him of previous warnings, including a previous cancellation, and his reoffending in spite of the support that was available to him last time he was considered by the Tribunal, makes Mr Tihema a real risk to the Australian community.

56.     However, it must be remembered that his offences to date have been largely minor ones and Dr Ashkar’s evidence was that any further offending would be in the same vein and at the same level of seriousness. I also note the evidence of Dr Ashkar that, statistically, Mr Tihema has reached the peak age for offending. I note Dr Ashkar’s opinion that these offences do not establish a pattern of violent offending, but in my view they sound an alarm. His violent offences, committed after his last application to the Tribunal, are disturbing. The fact that Mr Tihema’s most recent violent offending has been directed at his family or those in his family’s circle and not at the general community provides no comfort. Family violence is no more acceptable in the Australian community than is violence outside the family.

57.     The protection of the Australian community weighs heavily in favour of cancellation.

Strength, Duration and Nature of the Ties to Australia

58.     Mr Tihema has resided in Australia for 13 years since the age of 13 – half his life. He commenced to offend in July 2005 at the age of 18 years.

59.     Mr Tihema’s parents, siblings, many cousins and other relatives live in Australia. His fiancé, an Australian indigenous citizen, and her family is here. Most importantly, his six month old daughter is here.

60.     I note Dr Ashkar’s assessment of Mr Tihema’s ties to Australia:

Mr Tihema has historically had poor attachments to and relationships with his parents although he described good relationships with them today. His mother is working to rebuild their relationship. Mr Tihema has little or no contact with his older sister. He is attached to his younger sister. He is working to improve his relationship with his younger brother although this relationship is complicated by his brother’s mental illness. He did not report any attachments to his extended family in Australia. He entered a relationship with his current partner Jamie-Lee Richardson in May 2012 approximately three months before returning to goal in June 2012. Ms Richardson and his daughter visit him weekly and they have daily telephone contact. They plan to marry later this month. He has no social or employment ties of significance in Australia.

61.     Mr Tihema has worked in Australia, but I have no evidence before me of continuing employment ties. He appears to have worked long hours in hard physical labouring jobs, including building work in NSW and Rockhampton and in manufacturing on the Gold Coast. He said he eventually wants to get into building in either bricklaying or scaffolding and had hopes of running his own company in site managing. He was thinking about going to TAFE to do courses in engineering, bricklaying and scaffolding.

62.     He said he enjoyed his job at ‘HDSC’ with his old boss ‘Steve’. He said he would be able to go back to working with him, but I have no evidence before me of the likelihood of this.

63.     Mr Tihema’s ties to Australia are strong. This weighs against cancellation.

Best Interests of Minor Children

64.     I must make a determination about whether cancellation is or is not in Mr Tihema’s daughter’s best interests.

65.     The child is just six months old. For all of her short life her father has been incarcerated or in immigration detention. She has seen him once every week for several hours. Ms Richardson’s evidence and that of Ms Tu is that when his daughter visits him he cares for her by holding her, giving her a bottle, changing her nappy and settling her when she cries. By all accounts he is a gentle, affectionate and proud father.

66.     However, it could not be said that the child has developed, at this young age, a close bond with the father she has only ever seen for a few hours at a time on a weekly basis.

67.     The extent to which Mr Tihema is likely to play a positive role in the child’s life will depend largely on whether he reoffends. He appears to be very attached to his child and to have a genuine desire to father her well. However, I note Dr Ashkar’s evidence that her development would be adversely affected if she was raised with criminality. He said it is toxic to a child’s social and moral development to be raised in a criminal environment.

68.     On the other hand, separation from her father is, according to Dr Ashkar, likely to affect her adversely. He said that children who are separated from a parent grow up with an elevated risk of social problems. He said her relationship with her father, even with the aid of electronic communication, would be seriously affected and she would be less able to obtain financial support from him which would, in turn, have serious repercussions for her opportunities. Apart from electronic communication when she is older and able to access it, she will not, as a minor, be able to physically be with her father in New Zealand, given her mother’s intention to remain in Australia and her limited financial means.

69.     Mr Tihema’s daughter will have her mother’s care and that of her mother’s family. She will have a family around her, albeit one that appears to comprise mainly women.

70.     In the hearing I raised a concern that, given Mr Tihema’s instances of violence towards his siblings and his cousin’s girlfriend, there may be some risk to his daughter’s safety. He assured me that he does not want his child to regard him as he did his father. He was convincing in this statement. Ms Tu said that Mr Tihema, out of character, recently raised with her the question of his father’s violence and wished to discuss it. She considered this a sign of his understanding. Ms Richardson described Mr Tihema as a completely doting father. On this point Dr Ashkar said it is a complicated question but he considers that Mr Tihema would not be a risk to his child. He considered that, overall, there is little evidence of Mr Tihema being violent and no evidence of violence towards a child. He said it should not be assumed that because he has been violent towards adults that he would be violent towards a child. When I raised with Dr Ashkar the “cycle of violence” he said that people who have been physically abused are at elevated risk of abusing in turn, but most people who have been physically abused do not go on to abuse their children. I am persuaded by Dr Ashkar’s evidence in this regard.

71.     I also note the Department of Corrective Services Case Note Report of 30 May 2013 to the effect that Ms Richardson and her mother have no concerns about Mr Tihema residing at their house on his release, their advice that he had exhibited no violence or aggression and the assessment of their house as suitable for Mr Tihema to reside in on release.

72.     The question of whether it will be in the best interests of Mr Tihema’s daughter for him to remain in Australia, depends on the likelihood of his reoffending and her thereby being subjected to a criminal environment. This in turn depends on whether he will obtain and persevere with the targeted specialist treatment he requires. He is motivated, as Dr Ashkar said, by his interest in his daughter. I am concerned that, in view of his past attempts and assurances of rehabilitation, his failures to comply with supervision and his failure to heed the most serious of warnings, he may not be sufficiently motivated to commence and persevere with the targeted treatment he needs, in spite of his interest in his child.

73.     These concerns lead me to conclude that it is moderately in the child’s best interests that Mr Tihema’s visa not be cancelled.

Australia’s Non-Refoulement Obligations

74.     Mr Tihema did not contend that this consideration arises and I see no basis for concluding that it does.

OTHER CONSIDERATIONS

Effect on Immediate Family

75.     I am satisfied that the effect on Mr Tihema’s immediate family, were he to be deported, would be significant and immediate. His daughter, fiancé, mother, father, younger sister and brother would all be affected.

76.     Dr Ashkar described the likely negative effect on Mr Tihema’s daughter’s social development if she were to be separated from her father. Mr Tihema’s daughter cannot, for many years yet, communicate with her father electronically. Nor will she be able to, without her mother, visit her father in New Zealand, even if the funds were available to her to do so. The separation will be complete and long lasting.

77.     Ms Richardson made it clear that she would not follow Mr Tihema to New Zealand because of her ties to her own family here, including to her mother who is unwell, and because she does not want her daughter to be raised New Zealand. She said she has recently commenced to take anti-depressant medication as a result of Mr Tihema’s current circumstances. No medical evidence of this was provided. I note Dr Ashkar’s opinion that the relationship between Ms Richardson and Mr Tihema would break down if he were returned to New Zealand. Ms Richardson would be left to raise their daughter alone. It may be that Mr Tihema could provide financial support for his daughter from New Zealand but this is mere speculation and I have no evidence of this. I note Ms Richardson’s evidence that she left school in Year 9 and that in the 4 or 5 years that have followed she has had employment for only a few months.

78.     I note the statements of Ms Shiraalee Gainsford, Ms Richardson’s mother, and Ms Jacqueline Gainsford, Ms Richardson’s aunt, to the effect that Mr Tihema is a person of good character and that his deportation will have a serious and negative effect on Ms Richardson.

79.     I accept Ms Tu’s evidence that she would be heart broken and guilt stricken if her son were to be deported. This is particularly so given their recent movement towards a closer relationship.

80.     I have no evidence from Mr Tihema’s father, but, it is likely that, as a father, he will be negatively affected if his son is deported.

81.     I have no evidence from Mr Tihema’s younger sister, but I note the evidence of Dr Ashkar that Mr Tihema is attached to her. If this attachment is mutual then she will be adversely affected if he leaves Australia.

82.     As to Mr Tihema’s brother, I note Ms Tu’s evidence that he holds himself responsible for his brother’s predicament and would be severely affected if his brother were to be deported. I have no other evidence in this regard. I accept that he would be adversely affected if his brother were to be deported.

83.     This consideration weighs against cancellation.

Australian Business Interests

84.     There is no evidence before me of any impact on Australian business interests.

Impact of Non-cancellation on Members of the Australian Community

85.     The only evidence available in relation to Mr Tihema’s brother is that of Ms Tu who considers that his brother would be adversely affected and would consider it his fault if Mr Tihema were to be deported. Ms Tu referred to her son’s psychiatric condition, his mild intellectual disability, his particular vulnerability and the likely traumatic effect on him should Mr Tihema, be deported. No medical evidence of this was produced. Both Mr Tihema and Ms Tu gave evidence that the brothers’ relationship is improving.

86. It was submitted on behalf of the Minister that, given that an Apprehended Violence Order had been obtained against Mr Tihema for the protection of his brother, then it would not be in his brother’s interests for Mr Tihema to be in the Australian community. I have already noted the provisions of section 27 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

87.     No evidence has been provided in relation to the victim of the intimidation offence. Mr Tihema’s evidence in this respect was contradictory, saying at one point that he had not spoken to her since the incident, and saying at another time that he had spoken to her a couple of months ago. I note his evidence that he arranged for his fiancé to repay her for the broken window.

88.     This consideration weighs moderately against cancellation.

Impediments to be Faced on Removal from Australia

89.     I accept the evidence of Dr Ashkar that Mr Tihema would suffer severe psychological difficulties if he is separated from his fiancé and his daughter and, as is likely, his relationships with them are destroyed. Dr Ashkar said:

He has undergone a process of acculturation since his migration and he has no familial, social, or emotional ties to New Zealand. Displacement in an unfamiliar country without important family supports will be stressful for him and detrimental to his psychological health. His mother believes he will be vulnerable to the criminal influences of her extended family in New Zealand and his involvement with these people would effectively destroy his prospects for rehabilitation.

90.     Ms Tu gave evidence that her family members in New Zealand on her father’s side are variously Presidents and Sergeants at Arms of gangs there. She said that, although she was last in New Zealand 14 years ago, she keeps up with the news there and the gang situation has become worse.

91.     I also note the ‘Country Advice’ from the Refugee Review Tribunal dated 14 December 2009, concerning the prevalence of gangs in New Zealand. I accept that if Mr Tihema were to make contact with his mother’s relatives in New Zealand he may choose to become involved in criminal gang activity. This would necessarily stand in the way of any rehabilitation.

92.     This consideration weighs against cancellation.

THE BALANCE OF CONSIDERATIONS

93.     I must attempt to balance the Primary and Other Considerations in the Direction in accordance with the Principles set out there.

94.     Of particular relevance to this application are the Principles that:

·The Government is committed to protecting the Australian community from harm;

·A person who has committed a violent crime against a vulnerable member of the community should generally expect to forfeit the privilege of staying in Australia;

·Australia may afford a higher level of tolerance of criminal or other serious conduct to a person who has lived in the Australian community from a very young age;

·The consequences of visa cancellation for minor children and other immediate family members in Australia are considerations in the context of determining whether a person’s visa should be cancelled.

95.     Mr Tihema’s relatively minor violent offences are rendered more serious because one of those was against a vulnerable person, he has been undeterred by past warnings, and subsequent to those warnings he has increased his violent offending. Without rehabilitation the risk of his reoffending is substantial. There remains a significant risk, given his lack of insight into his problems and his failure to take steps to obtain rehabilitation last time the Tribunal set aside a cancellation decision, that he will not undertake the substantial rehabilitation he requires and will offend again.

96.     According to Dr Ashkar, Mr Tihema does not yet have insight into his need for treatment, although he recognises that he has a problem; he has not yet reached the stage where he is ready to seek treatment for his own sake, but he is motivated to seek treatment for the sake of his daughter. The only arrangement in place for rehabilitation for Mr Tihema on release from detention is his acceptance into the Work and Development Order Scheme, which will provide twice weekly group sessions on alcohol and drug abuse and gambling. There is no evidence of arrangements having been made for the one on one counselling with a forensic psychiatrist or psychologist that Dr Ashkar says is so necessary to address the personality instability that Mr Tihema suffers because of his violent upbringing. Mr Tihema’s stated desire to consult his former drug and alcohol counsellor at Cumberland Hospital is, at this stage, merely a statement of intent. When Mr Tihema was last given an opportunity to address his rehabilitation needs, when the Tribunal set aside the decision to cancel his visa on the last occasion, he undertook no rehabilitation. Since then, he has fathered a child. This may provide sufficient motivation for him to arrange and persevere with the rehabilitation he requires to cease offending, but I am not confident that it will. I consider that the risk of his reoffending remains substantial. The protection of the Australian community must weigh heavily in favour of cancellation.

97.     The strength of Mr Tihema’s ties to the Australian community is most underlined by his ties to his daughter and to his fiancé. These ties are strong. He has lived here since the young age of 13 and is acculturated to Australian life. In accordance with the Principles, this raises the level of tolerance Australia may afford to Mr Tihema. These matters weigh against cancellation.

98.     Mr Tihema’s daughter’s best interests would, on balance, be best served by his remaining in Australia. However, there is a substantial risk that he will reoffend, notwithstanding his new found motivation as a father. This risk leaves his daughter open to the damaging effects of growing up with criminality. This affects the extent to which it is in her best interests to have her father remain here and, it follows, affects the weight to be given to this consideration.

99.     The relevant “Other” considerations all weigh against cancellation to varying degrees. Most weighty is the effect of deportation on Mr Tihema’s fiancé and child. Ms Richardson would be emotionally affected by the inevitable breakdown of their relationship and she would be left to raise their child alone. However, if Mr Tihema were to reoffend she would also find herself as the sole supporter of her daughter. In both instances she and her child would suffer. Again, the outcome would depend on Mr Tihema undertaking the rehabilitation that will minimise the risk of his reoffending.

100.    Deportation to New Zealand would cause Mr Tihema psychological difficulties. This may constitute an impediment to his establishing himself in New Zealand. There is no evidence that Mr Tihema’s age, health or language would present any impediment. The gang connections of his mother’s family may present a difficult and complicated choice for him. There is no evidence that he will be unable to access the range of social services available to other New Zealand citizens.

101.    The effect of cancellation of Mr Tihema’s visa on his brother will be adverse, according to Ms Tu’s evidence. However, there is no independent expert evidence of this or of the extent to which it is likely to affect him.

102.    On balance, I find that the weight of the considerations favours cancellation of Mr Tihema’s visa. The substantial risk of Mr Tihema’s reoffending and the consequent risk of harm to the Australian community is not outweighed by the accumulation of the remaining primary and other considerations that fall against cancellation.

DECISION

103.    The Tribunal affirms the decision under review.

I certify that the preceding 103 (one hundred and three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bell.

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

Associate

Dated 4 October 2013 

Dates of hearing	16 and 17 September 2013
Date final submissions received	2 October 2013
Solicitors for the Applicant	G Tremelling, Legal Aid NSW
Solicitors for the Respondent	A Carr, DLA Piper

Appendix A

Court	Offence	Charge Date	Date of Conviction	Sentence
Penrith Local Court	Assault Occasioning Actual Bodily Harm	21 April 2011	16 July 2012	8 months imprisonment (suspended on entering into a good behaviour bond) This is the same conviction as 11 January 2012. Suspended sentence revoked due to breach of good behaviour bond
Penrith Local Court	Intimidate Intend Fear of Physical/Mental Harm	7 December 2011	16 July 2012	8 months imprisonment (commencing 16 March 2013) non parole period 4 months
Penrith Local Court	Larceny	7 July 2012	16 July 2012	4 months imprisonment (commencing 16 March 2013)
Penrith Local Court	Destroy or Damage Property	7 December 2011	16 July 2012	2 months imprisonment (commencing 16 March 2013)
Penrith Local Court	Assault Occasioning Actual Bodily Harm	22 April 2011	11 January 2012	8 months imprisonment suspended on entering bond to be of good behaviour for 8 months
Penrith Local Court	Shoplifting	28 March 2011	11 January 2012	2 months imprisonment (commencing on 7 March 2011)
Penrith Local Court	Fail to Appear in Accordance with Bail Granted Undertaking	22 April 2011	11 January 2012	Fined $300
Penrith Local Court	Wilfully Use Offensive Language on Train or Public Area	5 April 2011	22 June 2011	Fined $200
Parramatta Local Court	Enter Inclosed Land Not Prescribed Premises Without Lawful Excuse	30 April 2011	8 June 2011	Fined $100
Blacktown Local Court	Possesses Prohibited Drug	11 March 2011	14 April	Fined $500

Appendix B

Court	Offence	Charge Date	Date of Conviction	Sentence
Parramatta Local Court	Possesses Prohibited Drug	12 September 2010	27 October 2010	Fined $500
Blacktown Local Court	Affray	16 April 2009	2 February 2010	(Call up) 12 months imprisonment (commencing 29 January 2010) no parole period 5 months
Blacktown Local Court	Shoplifting (3 charges)	11 November 2009	2 February 2010	Imprisonment 1 month (commencing 29 January 2010) on each charge
Blacktown Local Court	Possesses Prohibited Drug	29 January 2010	2 February 2010	Convicted no penalty
Blacktown Local Court	Not Pay Train Fare and Hold Valid Ticket	12 December 2009	2 February 2010	Convicted no penalty
Blacktown Local Court	Give a False Name	29 January 2010	2 February 2010	Convicted no penalty
Blacktown Local Court	Unlawfully Enter Restricted Area of Station	10 November 2009	2 February 2010	Convicted no penalty
Blacktown Local Court	Affray	16 April 2009	31 August 2009	12 months imprisonment sentence suspended on entering good behaviour bond for 12 months
Blacktown Local Court	Possess Prohibited Drug	24 August 2009	25 August 2009	Fined $250
Parramatta Drug Court	Shoplifting	20 August 2007	20 March 2009	6 months imprisonment (commencing 8 October 2008)
Parramatta Drug Court	Possess Implements to Enter/Drive Conveyance	20 August 2005	20 March 2009	(Call up) 4 months imprisonment
Parramatta Drug Court	Goods in Personal Custody Suspected Being Stolen	12 August 2005	20 March 2009	(Call up) 2 months imprisonment (commencing 8 October 2008)
Parramatta Childrens Court	Break and Enter Building – Steal	4 June 2007	6 May 2008	Convicted good behaviour bond for 12 months
Parramatta Childrens Court	Fail to Appear in Accordance with Bail Granted Undertaking (2 charges)	4 June 2007	6 May 2008	Convicted good behaviour bond for 12 months (on each charge)
Parramatta Childrens Court	Be carried in Conveyance Taken Without Consent of Owner	4 June 2007	6 May 2008	Convicted good behaviour bond for 12 months
Parramatta Drug Court	Fail to Hold Valid Ticket for Train Travel	23 February 2008	20 March 2008	Convicted no penalty
Blacktown Local Court	Shoplifting	20 August 2007	24 September 2007	6 months imprisonment (commencing 20 August 2007)
Rockhampton Magistrates Court	Unauthorised Dealing with Shop Goods	18 April 2007	21 May 2007	Convicted Fined $150
Blacktown Local Court	Destroy or Damage Property (18 charges)	28 April 2006	5 June 2006	6 months imprisonment (on each charge)
Blacktown Local Court	Be Carried in Conveyance Taken Without Consent of Owner	9 February 2006	5 June 2006	6 months imprisonment
Blacktown Local Court	Destroy or Damage Property (2 charges)	28 October 2005	5 June 2006	5 months imprisonment (on each charge)
Blacktown Local Court	Goods in Personal Custody Suspected Being Stolen	28 October 2005	5 June 2006	(Call up) 3 months imprisonment
Blacktown Local Court	Shoplifting	9 February 2006	5 June 2006	(Call up) 3 months imprisonment
Blacktown Local Court	Possess Prohibited Drug	9 February 2006	5 June 2006	Fined $300
Blacktown Local Court	Use Offensive Language in Public Place (2 charges)	9 February 2006/28 April 2006	5 June 2006	Fined $100 (on each charge)
Blacktown Local Court	Fail to Hold Valid Ticket For Train Travel	1 March 2006	3 April 2006	Fined $150
Blacktown Local Court	Be Carried in Conveyance Taken Without Consent of Owner	17 August 2005	20 December 2005	3 months periodic detention (commencing 31 December 2005)
Blacktown Local Court	Goods in Personal Custody Suspected Being Stolen	21 October 2005	20 December 2005	Community services order for 100 hours
Blacktown Local Court	Shoplifting	28 October 2005	20 December 2005	Community services order for 100 hours
Blacktown Local Court	Possess Thing Intended for Use in Damaging Property	21 October 2005	16 December 2005	Fined $100
Blacktown Local Court	Custody of Knife in Public Place	21 October 2005	16 December 2005	Fined $100
Blacktown Local Court	State False Name/Address to Police Authorised Officer (2 charges)	24 October 2005	16 December 2005	Fined $50
Blacktown Local Court	Fail to Hold Valid Ticket for Train Travel	24 October 2005	16 December 2005	Fined $50
Blacktown Local Court	Be Carried in Conveyance Taken Without Consent of Owner	17 August 2005	23 September 2005	3 months imprisonment sentence suspended on entering bond to be of good behaviour for 3 months
Blacktown Local Court	Possess Implements to Enter/Drive Conveyance	17 August 2005	23 September 2005	Convicted. Bond to be of good behaviour for 2 years
Blacktown Local Court	Destroy or Damage Property (2 charges)	29 August 2005	23 September 2005	Convicted. Bond to be of good behaviour for 2 years
Blacktown Local Court	Goods in Personal Custody Suspected Being Stolen	12 August 2005	23 September 2005	Convicted. Bond to be of good behaviour for 2 years
Blacktown Local Court	Fail to Appear in Accordance with Bail Granted Undertaking (2 charges)	29 August 2005	23 September 2005	Sentenced to rising of the court
Blacktown Local Court	Destroy or Damage property	30 August 2005	19 September 2005	Fined $650
Blacktown Local Court	Shoplifting	20 August 2005	29 August 2005	Fined $600
Blacktown Local Court	Goods in Personal Custody Suspected Being Stolen	28 July 2005	29 August 2005	Fined $400
Blacktown Local Court	Fail to Hold Valid Ticket for Train Travel	28 July 2005	29 August 2005	Fined $100