Tokorua Pareina and Minister for Immigration and Citizenship
[2013] AATA 115
•5 March 2013
[2013] AATA 115
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/5873
Re
Whitter Tokorua Pareina
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Deputy President RP Handley
Date 5 March 2013 Place Sydney Decision Summary
The decision under review is set aside and a decision substituted that the Minister’s discretion under s 501(2) of the Migration Act 1958 should not be exercised to cancel Mr Tokorua Pareina’s visa.
.......[sgd].....................................
Deputy President RP Handley
CATCHWORDS
IMMIGRATION – Visa cancellation – Direction No 55 – Character test – Substantial criminal record – Primary considerations – Other considerations – Decision under review set aside and substituted
LEGISLATION
Migration Act 1958 (Cth)
SECONDARY MATERIALS
Direction [no. 55] - Visa refusal and cancellation under s 501
REASONS FOR DECISION
Deputy President RP Handley
Mr Tokorua Pareina has applied to the Tribunal for the review of a decision of a delegate of the Minister for Immigration and Citizenship (the Minister) to cancel his visa on the ground that he does not pass the character test because of his substantial criminal record.
BACKGROUND
Mr Tokorua Pareina was born in the Cook Islands in May 1974, the first of four siblings, and is now aged 38. He is a New Zealand citizen. Mr Tokorua Pareina states that after suffering abuse as a young child, he was adopted by his uncle and aunt at the age of seven and moved with them to New Zealand.
Mr Tokorua Pareina first arrived in Australia on 29 September 1995 when he was 21. He said he departed Australia on 8 February 2000 to travel to New Zealand because his adoptive mother was sick and was absent for a period of three and a half years until 18 August 2003. During this period, Mr Tokorua Pareina spent most of the time in New Zealand and about eight months in the Cook Islands. He also departed Australia on 11 September 2009 returning on 3 October 2009, spending two days in New Zealand and about two weeks in the Cook Islands. On each entry into Australia, Mr Tokorua Pareina was granted a Class TY Subclass 444 Special Category (Temporary) visa which was the category of visa he held at the time his visa was cancelled.
Mr Tokorua Pareina has two children, aged seven and four, who live with their mother, Ms C, and are and in whose care he has been involved since they were born. He also has another child aged 13 from an earlier relationship with whom he has had no contact since she was aged four months although he said he has paid child support for her. All three children were born in Australia and are Australian citizens.
On 22 February 2012, Mr Tokorua Pareina was convicted of a significant number of offences for which warrants had been issued, some dating back to 1998, and the sentences detailed below were imposed.
(a)Incident dated 27 September 1998, involving an assault on Mr Tokorua Pareina’s former partner, an assault on police who attended the incident, resisting arrest by the police on that occasion and, subsequently, failure to appear on two occasions in answer to bail in relation to the charges:
·assault occasioning actual bodily harm (charge dated 27 September 1998) – 10 months imprisonment
·assault officer in the execution of duty (2 charges dated 27 September 1998) – 6 months imprisonment in respect of each charge
·resist officer in the execution of duty (charge dated 27 September 1998) - 3 months imprisonment
·failure to appear in accordance with bail granted undertaking (2 charges dated 27 September 1998) - 6 months imprisonment
(b)Incident dated 1 February 2000, involving an assault on Mr Tokorua Pareina’s former partner and also breach of a two year apprehended violence order made on 29 September 1998:
·contravene apprehended violence order (charge dated 9 February 2007) - 6 months imprisonment
·common assault (charge dated 9 February 2007) - 6 months imprisonment
(c)Incident dated 9 February 2007, which involved Mr Tokorua Pareina attending his partner’s workplace, assaulting her colleague and punching a hole in a door:
·common assault (charge dated 9 February 2007) - 4 months imprisonment
·destroy or damage property (charge dated 9 February 2007) – fined $700
(d)Incident dated 28-9 May 2011, involving an assault on a taxi driver:
·assault occasioning actual bodily harm (charge dated 1 June 2011) - 16 months imprisonment with a non-parole period of 11 months.
Mr Tokorua Pareina pleaded guilty to the above offences and was sentenced in the Goulburn Local Court on 22 February 2012 by Magistrate Beattie, who noted both Mr Tokorua Pareina’s background of abuse and his problem with alcohol. On appeal against sentence to the District Court of NSW on 24 May 2012, Judge Bennett dismissed the appeals in respect of all but the last offence (involving the taxi driver) in respect of which she amended the sentence to one of 20 months imprisonment (with a non-parole period of six months) commencing on 22 June 2012 and expiring on 21 February 2014. Judge Bennett commented:
The pattern in each event is comparable. He was intoxicated at the time. He spontaneously erupted into violence, assaulting, and resisting arrest, and along the way failing to appear when required to attend court.
She also noted that:
… since May of 2011, he is said to have abstained from alcohol. He has been at large from that time until his appearance in the Local Court in February and there is no indication of any other offending during that period.
Judge Bennett said Mr Tokorua Pareina’s parole “is to be supervised and those responsible should focus upon his alcohol use and anger management”.
Mr Tokorua Pareina also has a conviction dated 15 March 2000 (charge dated 9 December 1999) for common assault for which he was fined $500. He said this offence was in relation to an incident with his former partner.
On 31 August 2012, the Department sent Mr Tokorua Pareina a ‘Notice of Intention to Consider Cancellation’ of his visa, inviting him to respond. Mr Tokorua Pareina acknowledged receipt of this notice on 10 September 2012 and completed a ‘Personal Details Form’ with an attached letter dated 30 August 2012. On 22 October 2012 and 27 November 2012, the Department subsequently sent him other documents inviting a further response. Mr Tokorua Pareina sent a further letter in response, which was received by the Department on 6 December 2012.
By letter dated 10 December 2012, a delegate of the Minister advised Mr Tokorua Pareina that his visa had been cancelled and provided him with a Statement of Reasons for the cancellation of his visa under s 501(2) of the Migration Act together with a Departmental Submission relating to his visa cancellation. Mr Tokorua Pareina received this on 17 December 2012. On 21 December 2012, Mr Tokorua Pareina was released on parole but immediately taken into immigration detention at Villawood. On 24 December 2012, he applied to the Tribunal for a review of the decision to cancel his visa.
In these proceedings, the Minister provided the Tribunal with evidence in respect of which I made a confidentiality order pursuant to s 35(2) of the Administrative Appeals Tribunal Act 1975. This order permitted access to the evidence by the Respondent and the Respondent’s legal representatives, the Applicant’s legal representative (but not the Applicant), and the members of the Tribunal and its staff for the purpose of the performance of their duties. At the hearing, I heard submissions from the parties as to whether I should admit this evidence and if, I decided to admit it, what weight I should accord to it. I decided to admit the evidence, noting that the Applicant’s legal representative had the benefit of access to it in preparing the Applicant’s case. However, given that the Applicant’s legal representative could not otherwise directly address the evidence I have decided to afford the evidence little weight.
RELEVANT LAW AND POLICY
Section 501(2) of the Migration Act provides that the Minister may cancel a visa if “the Minister reasonably suspects that the person does not pass the character test” and “the person does not satisfy the Minister that the person passes the character test”. Section 501(6)(a) provides that a person does not pass the character test if the person has a substantial criminal record. ‘Substantial criminal record’ is defined in s 501(7) as, among other things, having been sentenced to a term of imprisonment of 12 months or more, or to two or more terms of imprisonment where the total of those terms is two years or more.
Mr Tokorua Pareina has been sentenced to a term of imprisonment of 12 months or more on one occasion. This was for the offence of ‘assault occasioning actual bodily harm’, in respect of which he was sentenced to 20 months imprisonment with a non-parole period of six months as part of an aggregate sentence, taking into account his other convictions, of two years imprisonment (from 22 February 2012) with a non-parole period of 10 months. Thus, he does not pass the character test. It was therefore open to the Minister to cancel Mr Tokorua Pareina’s visa. In exercising this discretion, the decision-maker must apply Direction [no. 55] - Visa refusal and cancellation under s 501 (Direction 55). Direction 55 requires the Tribunal to take into account primary considerations and other considerations relevant to the individual case. The Preamble sets out the Objectives of the Direction, General Guidance for decision-makers and the Principles that provide a framework within which decision-makers should approach their task. In the case of serious criminal or other misconduct, when determining the risk of future harm, the decision-maker should balance the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community (Section 2, paragraph 7(1)(b)).
Paragraphs 9 and 10 of Direction 55 set out a number of ‘primary’ and ‘other’ considerations to which the decision-maker must have regard when considering whether to exercise the discretion to refuse or cancel a visa. The ‘primary considerations are set out in paragraph 9(1):
9. Primary considerations – visa holders
(1) In deciding whether to cancel a person’s visa, the following are primary considerations:
(a) Protection of the Australian community from criminal or other serious conduct;
(b) The strength, duration and nature of the person’s ties to Australia;
(c) The best interests of minor children in Australia;
(d) Whether Australia has international non-refoulement obligations to the person.
The ‘other considerations’, set out in paragraph 10(1) (see below), must be taken into account where relevant. Subparagraphs 8(4) and (5) state:
(4) Primary considerations should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.
PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
Under this heading, the Tribunal is required to give due consideration to the Government’s “Objectives”, “General Guidance”, and “Principles” set out in section 1, paragraph 6 of Direction 55 under the heading ‘Preamble’. The ‘Principles’ referred to in paragraph 6.3 that provide a framework for decision-makers in approaching their task, include the following:
6.3(1) … 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) …
(4) … Australia may afford a higher level of tolerance of criminal or other serious misconduct 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) …
(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.
Paragraph 7(1) of Direction 55 states that, informed by the principles in paragraph 6.3, a decision-maker:
(a) …
(b) is required to determine whether the risk of future harm by a non-citizen is unacceptable. This requires a balancing exercise, involving a consideration of the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community.
Paragraph 9.1 of Direction 55 states:
(1) When considering the protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
(a) The nature and seriousness of the person’s conduct to date; and
(b) The risk to the Australian community should the person commit further offences or engage in other serious conduct.
The nature and seriousness of the conduct
Paragraph 9.1.1(1) of Direction 55 states:
(1) In considering the nature and seriousness of the person’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
c)Where the person is in Australia, that a crime committed while the person was in immigration detention; during an escape from immigration detention; or after the person escaped from immigration detention, but before the person was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
d)The principle that any conduct that forms the basis for a finding that a person does not pass the character test under s 501(6)(b) or (d), or is not of good character under s 501(6)(c), is considered to be serious;
e)The sentence imposed by the courts for a crime or crimes;
f)The frequency of the person’s offending and whether there is any trend of increasing seriousness;
g)The cumulative effect of repeated offending;
h)Whether the person has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
i)Whether the person has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the person’s migration status (noting that the absence of a warning should not be considered to be in the person’s favour);
j)Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
As is evident from Mr Tokorua Pareina’s criminal history, he has committed and been convicted of a number of offences involving violence, including two counts of the serious offence of assault occasioning actual bodily harm, one of which, his most recent offence, involved an assault on a taxi driver when he was under the influence of alcohol. Mr Tokorua Pareina also admitted that he had been convicted of the offences of assault and assault occasioning actual bodily harm in the Cook Islands when he was about 17. He was visiting there from New Zealand and got involved in a fight. He was sentenced to four years’ probation in respect of one of the offences, part of which he served in New Zealand. There is no other evidence available to the Tribunal about these convictions. In accordance with paragraph 9.1.1(1) above, such crimes involving violence are viewed very seriously. I note also that some of the offences involved vulnerable members of the community, albeit that their vulnerability was incidental to the situation: the 1 February 2000 incident involved Mr Tokorua Pareina having punched his former partner, who was pregnant at the time, on the left chest; the 9 February 2007 incident involved Mr Tokorua Pareina pushing an older man; and the incident on 28-9 May 2011 involved Mr Tokorua Pareina punching a taxi driver. In each case, Mr Tokorua Pareina was either intoxicated or, in the case of the 2007 incident, hung over, and appears to have lost his temper and reacted spontaneously.
In her sentencing remarks on 24 May 2012, Judge Bennett commented that the May 2011 incident “was a serious example of assault occasioning actual bodily harm upon a taxi driver in circumstances where he was particularly vulnerable” and said she had “no difficulty increasing the length of that sentence”, referring to the 16 months imprisonment (with a non-parole period of 11 months) to which Mr Tokorua Pareina was sentenced by Magistrate Beattie, which Judge Bennett increased to 20 months with a non-parole period of 6 months.
I note that Mr Tokorua Pareina’s convictions relate to five incidents - in 1998, 1999, 2000, 2007 and 2011 – and he has no convictions in respect of the period 2000 to 2007. While the last incident may be the most serious, all the incidents appear to reflect intoxication and anger management problems and the first four arose out domestic disputes. Mr Tokorua Pareina said his failure to appear in relation to the earlier offences in 1998 and 2000 charges was because he thought he could “get away with it”.
There are two disciplinary offences recorded against Mr Tokorua Pareina during his 10 months in prison. On 29 July 2012, he was found to have committed a disciplinary offence involving his having stolen an onion from the prison kitchen where he was working. Mr Tokorua Pareina said when he asked if he could take an onion, “a screw” indicated that he could if he hid it. But he took one openly and was caught. The second offence, in September 2012, was when he failed a urine test having smoked marijuana. Mr Tokorua Pareina said that he only smoked marijuana on the one occasion, and for the purpose of trying to treat his depression, having never smoked marijuana previously except once when he tried it at the age of 16. His punishment in respect of each disciplinary offence was 28 days off amenities.
The Respondent contends that Mr Tokorua Pareina provided false and misleading information to the Department by not disclosing his criminal convictions on incoming passenger cards completed when he re-entered Australia on 18 August 2003 and 3 October 2009. When asked about this in cross-examination, Mr Tokorua Pareina said he ticked ‘No’ in answer to the question “Do you have any criminal convictions?” under the heading “If you NOT an Australian citizen”, because he understood this question as meaning that because he is not an Australian citizen, the answer to the question posed was “No”. While this might sound improbable, Mr Tokorua Pareina was cross-examined at some length about this and I am satisfied that he genuinely misunderstood the question and did not deliberately mislead the Department.
Finally, in relation to the factors referred to in paragraph 9.1.1(1), I note that Mr Tokorua Pareina has not received a formal warning about the consequences of further offending for his visa status.
The risk to the Australian community should the person commit further offences or engage in other serious conduct
Paragraph 9.1.2(1) states that, in considering whether a person represents an unacceptable risk of harm:
… decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. In making this assessment, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and
b)The likelihood of the person engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the person re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Mr Tokorua Pareina gave evidence that he has completed two courses while in prison: a one day workplace safety in the construction industry course for a ‘White Card’ and a one day ‘Health Survival Tips Program’ about preventing the spread of disease. I note the ‘Immigration Report’ dated 27 August 2012, prepared by the Probation and Parole Service, states that Mr Tokorua Pareina was offered the opportunity of participating in the ‘Managing Emotions’ program but declined to participate. Mr Tokorua Pareina said that because he was working full-time in the prison kitchen, he could not do this course. Working in the kitchen earned him $38 per week with which he could buy cigarettes and other things. The Immigration Report said that Mr Tokorua Pareina had been referred for the Getting SMART program, which is aimed at addressing alcohol and other drug use, but the program had not yet commenced. Mr Tokorua Pareina said that for the program to run there had to be a minimum of five or six inmates referred for the program and this had not occurred. He said that if he is released into the community, he will undertake rehabilitation courses and will seek assistance from the Probation and Parole Service in organising this.
The Immigration Report states that Mr Tokorua needs to address “his alcohol, emotional and violence issues” and concludes:
Mr Tokorua has been assessed as being at a medium risk of re-offence. He is currently classified C1 minimum security. It would appear that should Mr Tokorua cease alcohol use and participate in interventions to reduce his offending behaviour he would lower his risk of re-offence.
Mr Tokorua Pareina expressed his remorse for his past misconduct and is sorry for all his victims. He said he has learned from his mistakes and, having been in prison for the first time, he never wants to be there again. He said he was physically abused by his biological father in the Cook Islands as a young child and was sexually abused by an uncle. He was petrified of his father and was lucky to be adopted. He started drinking at a young age and was often drunk every day. However, by the time of the incident in May 2011, he was only drinking about once a week at weekends. The only time he gets into trouble is when he is drunk. He gets angry very quickly. Mr Tokorua Pareina said he has not drunk alcohol for about two years since he was arrested (in June 2011). When he was on bail, it was a condition of his bail not to drink alcohol and he stuck to this. He stated: “I am not going to drink alcohol again”. He reiterated this at the hearing and said he will not socialise with his former friends with whom he used to drink. Assuming this is correct, this is a step forward given his previous record of breaching judicial orders, namely breach of apprehended violence orders and failure to appear at court in answer to charges laid.
Mr Tokorua Pareina acknowledges he needs help. He said he gets depressed. Ms C’s sister and her daughter (who is aged 20), who both gave evidence by telephone, spoke of him having episodes of depression. Ms C’s sister said that at such times, “he is real quiet, he clams up and goes to his room”. Mr Tokorua Pareina said he was very depressed after his adoptive parents died. He needs medication for his depression. He has only been allowed Seroquel to help him sleep. He has seen a psychiatrist at Villawood on three occasions but was told that he had to go through his lawyer and the court to get medication.
At the request of his solicitor, Mr Tokorua Pareina was examined by Dr Bruce Westmore, Forensic Psychiatrist, for the purpose of preparing a report for these proceedings. In his report dated 31 January 2013, Dr Westmore said Mr Tokorua Pareina told him that he had been involved in fights when he was not intoxicated but only if he was in the wrong place at the wrong time, someone else had started the fight, and Mr Tokorua Pareina knew he was in the right. Dr Westmore said Mr Tokorua Pareina told him he has some friends: “a few are drinkers, a few of them are alcoholics”.
Dr Westmore stated that Mr Tokorua Pareina “is probably of dull average intelligence. He appears to be quite motivated to change his behaviour”. Dr Westmore said: “[i]t is probable that this man has experienced periods of depression in the past and these depressive episodes are likely to have commenced in his childhood”. He noted that until Mr Tokorua Pareina “completes an appropriate alcohol rehabilitation programme, the likelihood of his re-offending is unclear”. The risk “will certainly increase if he abuses alcohol again”. Dr Westmore concluded: “[u]ntil treatment occurs, his risks of abusing alcohol again should be considered to be at least in the moderate range”.
In oral evidence at the hearing, Dr Westmore said that a childhood history of violence and the alleged sexual abuse would have impacted on Mr Tokorua Pareina as a boy and could have led to feelings of depression and anger as an adult. This could also have impacted on his personality. Dr Westmore said that adults often experience feelings of guilt and shame about such abuse and find it difficult to discuss this with others. Mr Tokorua Pareina needs to address his anger and depression and would require an extensive program with a provider such as the Salvation Army, if he is released into the community, to assist him.
Dr Westmore noted that in the course of his interview with Mr Tokorua Pareina there was not a lot of direct eye contact and his affected mood was very restricted. Dr Westmore said he did not think Mr Tokorua Pareina was “overtly depressed – more sad and despondent”.
More generally, in terms of what might happen if Mr Tokorua Pareina is released into the Australian community, while Mr Tokorua Pareina states that his former partner Ms C will take him back if he gets help for his depression, Ms C did not give evidence in these proceedings and it is unclear whether she would be prepared to resume cohabitation. I note Mr Tokorua Pareina’s evidence that he broke up with Ms C for about a year before he went to prison, during which time he lived with his cousin, although he continued to help look after the two children. He also acknowledged that his relationship with Ms C has had its ups and downs.
With regard to possible employment, Mr Tokorua Pareina’s evidence was that he injured his lower back while working as a steel fixer in about 2008. He has not worked since then. Mr Tokorua Pareina said that while he was living with Ms C, she supported him and then, in 2011/2012, he received Centrelink benefits. At the hearing, Mr Tokorua Pareina said that if he is released into the community, he will probably go back to work as a steel fixer for a year and then work as a truck driver. However, in my view, if he has a lower back problem this may prove difficult and his evidence in relation to truck driving, given a 2011 conviction for negligent driving, appears not to have been fully thought through. While Mr Tokorua Pareina said his former boss at City Steel will have him back, there is no other evidence of this and the Immigration Report dated 27 August 2012 states that the Probation and Parole Service “contacted that employer and the offender will not be offered a position with that company due to his unreliability”.
Mr Tokorua Pareina acknowledged that in the past he has turned jobs down because of his depression and, for the same reason, has also not stuck with jobs. He said he gets paranoid and petrified by people around him.
In conclusion with regard to this first primary consideration, it is clear that Mr Tokorua Pareina has committed a number of offences involving violence, principally while intoxicated and as a result of his being unable to control his anger. Some of his victims have been vulnerable persons. Given that Mr Tokorua Pareina has not yet received appropriate treatment in relation to alcohol abuse and anger management, and while I accept that he is motivated not to reoffend, I am satisfied that at this stage there is still a moderate risk of his reoffending if he is released into the community. This consideration therefore supports the cancellation of his visa.
STRENGTH, DURATION AND NATURE OF THE PERSON’S TIES TO AUSTRALIA
The second primary consideration that paragraph 9(1) of Direction 55 requires the Tribunal to consider is the strength, duration, and nature of Mr Tokorua Pareina’s ties to Australia. Paragraph 9.2(1) states that decision-makers must have regard to:
a)How long the person has resided in Australia, including whether the person arrived as a young child, noting that:
i.Less weight should be given where the person began offending soon after arriving in Australia; and
ii.More weight should be given to time the person has spent contributing positively to the Australian community.
b)The strength, duration and nature of any family, social and/or employment links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
Mr Tokorua Pareina first arrived in Australia on 29 September 1995 at the age of 21. He is now aged 38. As noted above, he departed Australia on 8 February 2000 and was absent for a period of three and a half years until 18 August 2003. (His evidence is that he spent most of this time in New Zealand but also spent eight months in the Cook Islands.) Mr Tokorua Pareina has, therefore, been resident in Australia for nearly 14 years. The first offences for which he was charged (and ultimately convicted) on 27 September 1998 were as follows: assault occasioning actual bodily harm, assault officer in the execution of duty (two counts), failure to appear in accordance with bail undertaking, resist officer in execution of duty, and failure to appear in accordance with bail granted undertaking. At that time, he was aged 24 and had been in Australia for 3 years.
Mr Tokorua Pareina’s former partner, Ms C, and their two children are Australian citizens and resident in Australia. His natural parents (with whom he has had no contact since he was a child) and three siblings live in the Cook Islands. His adoptive parents are deceased. He also has family members who live in New Zealand. As noted above, while Mr Tokorua Pareina expressed his desire to resume his relationship with Ms C, and while I am satisfied from his evidence that he has a close and loving relationship with his children, it is unclear whether Ms C would be prepared to resume cohabitation with Mr Tokorua Pareina. Ms C’s sister and her daughter provided statements and gave evidence by telephone indicating that they have a close relationship with Mr Tokorua Pareina and that he has a loving and caring relationship with his two children. Ms C’s sister said that over the past few years before his incarceration, Mr Tokorua Pareina played an important role in caring for the children while Ms C went to work. He was not working at the time and appears to have acted as a ‘stay-at-home Dad’. Since his incarceration, Ms C’s parents and Ms C’s sister have needed to take over these caring duties to enable Ms C to continue working.
Mr Tokorua Pareina’s evidence is that he worked until about three years ago, mainly as a steel fixer. He appears not to have worked since he injured his lower back, and his evidence and Ms C’s indicates that he has lacked the motivation to do so. While Mr Tokorua Pareina said his old boss would take him back, Probation and Parole’s enquiries of his former employer, referred to above, suggest that this employer would not do so because of his unreliability.
In my view, Mr Tokorua Pareina’s ties to the Australian community should be considered a neutral consideration in terms of whether or not his visa should be cancelled.
BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
The third primary consideration that paragraph 9(1) of Direction 55 requires the Tribunal to consider is the best interests of minor children in Australia affected by the decision. This consideration only applies where the child is, or will be, under 18 years old at the time the decision to cancel Mr Tokorua Pareina’s visa is expected to be made. Where there is more than one child under 18 years old, paragraph 9.3(3) states, “[i]f there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ”.
Paragraph 9.3(4) sets out a number of factors that must be considered (where relevant) in ascertaining the best interests of the child. These include: the nature and duration of the relationship between the child and the person; the extent to which the person is likely to play a positive parental role in the future, taking into account the length of time remaining until the child turns 18, and any Court orders relating to parental access and care arrangements; the impact of the person’s prior conduct and any likely future conduct, and whether that has, or will have, a negative impact on the child; the likely effect that any separation from the person would have on the child; whether there are other persons who already fulfil a parental role in relation to the child; any known views of the child; evidence that the person has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and evidence that the child has suffered or experienced any physical or emotional trauma arising from the person’s conduct.
Mr Tokorua Pareina has three children under 18: a daughter aged 13 whom he has not seen since she was four months old when Mr Tokorua Pareina’s relationship with her mother ended and with whom, currently, he has no contact, and seven and four year old daughters who live with his former partner, Ms C. Mr Tokorua Pareina said he has always paid child support for his oldest daughter – he could not remember how much – but he does not know where she and her mother are now living. They used to live in the Campbelltown area. Mr Tokorua Pareina appears not to have made any attempt to contact or locate this daughter and apart from expressing the wish that “[o]ne day I hope to see her”, and his preparedness to pay child support for her, he has no plans to be otherwise involved in her care or upbringing. In my view, whether or not Mr Tokorua Pareina’s visa is cancelled will have little or no effect on this child’s future. Mr Tokorua Pareina can, of course, continue to contribute financial support from outside Australia.
With regard to Mr Tokorua Pareina’s two younger daughters who are aged four and seven, as stated above, his evidence and that of Ms C’s sister and her daughter indicates that he has a close and loving relationship with them. After Mr Tokorua Pareina ceased work following his back injury, the evidence available to me suggests that he was a ‘stay-at-home Dad’ in terms of looking after the household and, in particular, caring for the two children while their mother was at work. However, Mr Tokorua Pareina and Ms C separated following his arrest in June 2011 and he went to live with his cousin about 20 minutes’ drive away from where Ms C lives. Mr Tokorua Pareina said he would see the children every weekend for about half a day when they would do things together. This continued until Mr Tokorua Pareina was sentenced and incarcerated on 22 February 2012. Since then, Mr Tokorua Pareina has not seen his children, although he said he speaks to them on the phone, usually at least twice a day. He did not want the children to see him in prison and they have been told he is away on holiday in the Cook Islands. Mr Tokorua Pareina said the two children mean everything to him and being separated from them is very hard.
Ms C’s sister said Mr Tokorua Pareina loves his children and looks after them very well. Even when he is having one of his episodes of depression, he still looks after them. The children love and miss their father – she has heard them speaking to him on the phone – and it would be very hard for them if he is sent back to New Zealand. Ms C’s sister’s daughter, who is aged 20, said she lived in the same house as Ms C and Mr Tokorua Pareina for about 18 months around 2007, and otherwise, when he was in the community, she would see him three to five times a week. She said she thought of Mr Tokorua Pareina as her uncle and had a good relationship with him. She said he is a good father to his children and would do everything for them when he was not working – including bathing them, cooking them dinner, and getting them ready for school. If Mr Tokorua Pareina is removed to New Zealand, this would have a bad effect on the children who already miss him too much.
Mr Tremelling, for Mr Tokorua Pareina, said his client was the principal care giver for the two children for several years and is a committed father who is strongly motivated to play a positive role in their upbringing. He said it is clearly in the children’s best interests for Mr Tokorua Pareina to remain in Australia. Ms Hooper, for the Minister, acknowledged that it is in the two children’s best interests for Mr Tokorua Pareina’s visa not to be cancelled. However, she contended that it is unclear what his role would be in the future given the lack of evidence about the nature of his ongoing relationship with Ms C.
I am satisfied from the above evidence that this consideration strongly favours Mr Tokorua Pareina’s visa not being cancelled.
INTERNATIONAL NON-REFOULEMENT OBLIGATIONS
The fourth primary consideration is whether Australia has any international non-refoulement obligations to the person. There is no evidence of any non-refoulement obligations in Mr Tokorua Pareina’s case.
OTHER CONSIDERATIONS
As noted above, paragraph 10 of Direction 55 states that ‘other’ considerations, where relevant, must be taken into account. However, subparagraph 8(4) states that primary considerations should generally be given greater weight. Relevant ‘other’ considerations in Mr Tokorua Pareina’s case specifically referred to in the Direction are the effect on his immediate family in Australia, if those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely; any impact on business interests he may have in Australia; the impact of a decision not to cancel a visa on the Australian community, including victims of the person’s criminal behaviour and their family, where that information is available and the person has been afforded procedural fairness; and the extent of any impediments he may face if removed from Australia to their home country in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account his age and health, any substantial language or cultural barriers, and any social, medical and/or economic support available to them in that country.
Mr Tokorua Pareina most recently visited New Zealand and the Cook Islands in September/October 2009. He said he went to see his land in the Cook Islands and, on that occasion, he saw his two biological sisters but not his biological brother. Between 2000 and 2003, Mr Tokorua Pareina spent over two and a half years in New Zealand and approximately eight months in the Cook Islands. During those visits to the Cook Islands, he stayed with adoptive mother’s sister. He has had no contact with his biological parents and said while his father has tried to get in touch with him, he does not want to have anything to do with him. Mr Tokorua Pareina’s adoptive parents in New Zealand have now both died. They had no other children. However, he has other aunts, uncles and cousins and, he said, some friends in New Zealand.
The evidence does not suggest there would be any barriers to Mr Tokorua Pareina re-establishing himself in New Zealand given his age – 38 – and the many similarities between the two countries. He would need to find employment there in the same way that he would need to do so if he is released into the Australian community. While Mr Tokorua Pareina said he has not remained in touch with his family and friends in New Zealand, it appears he would have some support. However, I have no doubt that he would suffer emotionally because of the separation from his children who are very important to him. While he would be able to maintain contact by telephone and possibly by electronic means, this does not equate with the immediacy of being physically present with them.
The evidence suggests emotional suffering may have been a factor in episodes of depression that Dr Westmore recognised Mr Tokorua Pareina has suffered in the past. Mr Tokorua Pareina’s evidence and that of Ms C’s sister and her daughter indicates that he suffers episodes of depression from time to time for which he has not yet received treatment. While Mr Tokorua Pareina said he has seen a psychiatrist at Villawood on three occasions who has prescribed Seroquel to assist him in sleeping, there is no other evidence of his having been assessed for the purpose of treatment. The evidence provided to the Tribunal suggests that such an assessment is necessary.
Mr Tokorua Pareina has no business interests in Australia. His immediate family here comprise his former partner, Ms C and their two children. As stated above, it is unclear what form any ongoing relationship between Ms C and Mr Tokorua Pareina might take. However, Ms C’s sister’s evidence indicates that the care formerly provided by Mr Tokorua Pareina to his children as a result of Ms C’s need to work, now falls in large part to the children’s grandparents, who are ageing (aged 70 and 74) and suffering some of the disabilities associated with ageing. Ms C’s sister also assists currently by collecting the older child from school. Whether or not Ms C and Mr Tokorua Pareina would resume cohabitation, the evidence indicates that Mr Tokorua Pareina would be supportive of her and the children and his being in New Zealand would be likely to make parenting more difficult for her. Ms Hooper said the Minister also acknowledges that Ms C may suffer some emotional upset by reason of Mr Tokorua Pareina being returned to New Zealand.
In summary, these ‘other’ considerations suggest that Mr Tokorua Pareina could re-establish himself in New Zealand, but that this would cause him emotional hardship and also some emotional upset for Ms C whose parenting arrangements may thereby be more difficult.
CONCLUSION
Paragraph 7(1) of Direction 55 requires the Tribunal, informed by the principles set out in paragraph 6.3, to determine whether the risk of future harm is unacceptable, balancing the likelihood of future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community. The principles in paragraph 6.3 include, relevantly, affording a greater degree of tolerance to a non-citizen who has lived in the Australian community for most of their life or from a very young age, and taking into consideration the length of time the person has made a positive contribution to the community and the consequences of a visa cancellation for minor children and other immediate family members in Australia.
I have had regard to the primary considerations, discussed above, as required by paragraph 9(1). First, Mr Tokorua Pareina has committed a number of offences involving violence, some in respect of vulnerable members of the community. While I accept that he is motivated not to reoffend, his rehabilitation to date is unproven: he has not engaged in programs that may assist him in abstaining from the use of alcohol and in controlling his anger, and I assess the risk of his reoffending as being moderate. The protection of the Australian community therefore favours the cancellation of Mr Tokorua Pareina’s visa. Second, as explained above, I consider his ties to the Australian community a neutral consideration in relation to whether Mr Tokorua Pareina’s visa should be cancelled. Third, aside from the protection of the Australian community, the other primary consideration of significance in Mr Tokorua Pareina’s case is the best interests of his two children. Their interests strongly favour his visa not being cancelled. The other considerations, discussed above, are less weighty by comparison.
I have found the balancing exercise I am required to undertake extraordinarily difficult in this case. In my view, the nub of the issue is whether, with reference to paragraphs 6.3(6) and 7(1)(b) of Direction 55, the risk of future harm should be tolerated by the Australian community for the sake of the best interests of his children. Given that the 10 months’ imprisonment that Mr Tokorua Pareina has recently completed is his first time in prison and his evidence that he is determined never to repeat this experience, including because of the consequent separation from his children, I am inclined to think his motivation not to reoffend is of particular significance.
If released into the Australian community, Mr Tokorua Pareina will be on parole until 21 February 2014, requiring that he comply with the directions of the Probation and Parole Service. In relation to this, I note his evidence that he abstained from alcohol while in the community between the time of his arrest in June 2011 and the Local Court hearing in February 2012 (referred to by Judge Bennett in her sentencing remarks), this being one of the conditions of his bail. He also says he has not drunk alcohol since he has been in custody. According to his evidence, he has therefore abstained from alcohol for a period of two years, which gives cause for some optimism.
Mr Tokorua Pareina’s motivation will, hopefully, ensure that he undertakes the appropriate rehabilitation programs to address his offending behaviour. This should reduce the risk of his reoffending. Mr Tokorua Pareina will, moreover, be on notice that he must address his offending behaviour and that any further misconduct is likely to lead to the cancellation of his visa and his being returned to New Zealand. He has not been warned of this possibility in the past.
For the above reasons, I have therefore decided that the balance weighs marginally in favour of the discretion in s 501(2) of the Migration Act1958 not being exercised to cancel Mr Tokorua Pareina’s visa.
DECISION
The decision under review is set aside and a decision substituted that the Minister’s discretion under s 501(2) of the Migration Act 1958 should not be exercised to cancel Mr Tokorua Pareina’s visa.
I certify that the preceding 63 (sixty three) paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley.
.......[sgd].................................................................
Associate
Dated 5 March 2013
Dates of hearing 26-27 February 2013 Date final submissions received 27 February 2013 Advocate for the Applicant G Tremelling Solicitors for the Applicant Legal Aid NSW Advocate for the Respondent K Hooper Solicitors for the Respondent DLA Piper Australia
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