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Wanyoike and Minister for Immigration and Citizenship [2009] AATA 909 (26 November 2009)

Last Updated: 7 December 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 909


ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/4337

GENERAL ADMINISTRATIVE DIVISION )

Re ROBERT M WANYOIKE

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

ORDER TO AMEND WRITTEN DECISION


TRIBUNAL: Ms G Ettinger, Senior Member


DATE: 3 December 2009


PLACE: Sydney

WHEREAS:

  1. The Tribunal released a written decision in this matter, which was dated 26 November 2009.
  2. It has come to the Tribunal’s attention that the parties would like to amend the decision.
  3. The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application.

THE TRIBUNAL THEREFORE ORDERS that the decision read as follows:

The decision under review is set aside and the matter is remitted to the Department of Immigration and Citizenship for reconsideration with a direction that the discretion in section 501 of the Migration Act 1958 (Cth) not be exercised to refuse Mr Wanyoike a visa.


................[sgd]...................................................
Ms G Ettinger, Senior Member

DECISION

Tribunal Ms G Ettinger, Senior Member

Date 26 November 2009

Place Sydney

Decision The Tribunal sets aside the decision under review. It substitutes a decision that the discretion in Direction No 41 be exercised in Mr Wanyoike’s favour, and that he be granted a Partner (Residence)(Class BS) visa.


CATCHWORDS

IMMIGRATION – Visa cancellation - character test - substantial criminal record - whether Tribunal should exercise discretion to grant applicant's visa pursuant to s 501 of the Migration Act 1958 - Minister’s Direction No 41 issued under s 499(1) of the Migration Act 1958 - Direction No 41 applied – primary considerations - protection of the Australian community – risk of recidivism - offences committed in context of alcohol abuse and marriage break-up - evidence of rehabilitation - length of time that a person has been ordinarily resident in Australia – best interests of the child - other considerations - family ties and the nature and extent of any relationship with the Australian community - decision under review set aside.


Migration Act 1958 s 501

Direction No 41


Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN No 81

Shi v Migration Agents Registration Authority [2007] FCAFC 59; (2007) 158 FCR 525

Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568; (2001) 107 FCR 133


REASONS FOR DECISION

26 November 2009
Ms G Ettinger, Senior Member


SUMMARY

  1. Mr Robert Wanyoike applied to this Tribunal for review of a decision of a delegate of the Minister for Immigration and Citizenship not to grant him a visa on the ground that he did not pass the “character test”. At the hearing Mr Wanyoike conceded that he did not pass the “character test” because as result of his criminal convictions, he had breached section 501 of the Migration Act 1958. However he argued that in the application of Direction 41, the discretion to grant him a visa should be exercised in his favour. I was satisfied that by the time of my decision, and weighing up the primary considerations, the overall risk of Mr Wanyoike re-offending was low, and that he poses a low risk in terms of compromising the protection of the Australian community. I have taken into account the “primary considerations” as also the “other considerations” in Direction 41, and am satisfied that the discretion to grant Mr Wanyoike a visa should be exercised. My reasons follow.

BACKGROUND

  1. The Applicant, in these proceedings, Mr Wanyoike, was born in Kenya, and is 49 years old. He and Ms Thea Jane Krippner, a solicitor, began a personal relationship in Kenya, in 2000. On the basis of that, Mr Wanyoike applied for, was granted a prospective marriage visa in Nairobi, and arrived in Australia on 10 April 2002. In December 2002, he applied for a Partner (Residence)(Class BS) visa. On or about 23 March 2003 he was granted a Partner (Temporary)(Class UK, Subclass 820) visa. Mr Wanyoike and Ms Krippner married in Sydney on 28 September 2002, and then in November 2002, moved to Newcastle where Ms Krippner had undertaken work. A son, Max James Wanyoike, was born to the couple on 21 October 2004.
  2. The evidence before me was that Mr Wanyoike found the move to Newcastle difficult as he had no social network support, and was financially dependent on his wife. This caused difficulties in the marriage, and Mr Wanyoike was drinking. Mr Wanyoike and Ms Krippner acknowledged the breakdown of their marriage and separated on 8 May 2005, followed by a divorce on 11 November 2006.
  3. The next major event in Mr Wanyoike’s life was that on 15 October 2008 he left Australia to attend his father’s funeral in Kenya, returning on 24 November 2008.
  4. From thence a pathway to refusal of a visa commenced. On 28 October 2008, the Minister sent the Applicant a “Notice of Intention to consider Refusal of visa application under s 501” followed by a further notice dated 25 June 2009 which was a “Consideration of Refusal of Visa Application under s 501”. On 4 September 2009, DIAC refused Mr Wanyoike a Partner (Residence)(Class BS, Subclass 801) visa. The decision was notified on 10 September 2009, and Mr Wanyoike was placed in immigration detention. He appealed the decision of DIAC to this Tribunal.
  5. I know of no criminal history in Kenya in relation to the Applicant, but between 2003 and 2009, Mr Wanyoike committed a number of offences in Australia. Many of the offences were associated with what developed to be a drinking problem, and in connection with, what Mr Wanyoike said, was Ms Krippner’s refusal to let him have access to their son. The list of offences follows.

Police Certificate

Disclosable Court Outcomes

WANYOIKE, Robert Mwangi

Court
Date
Offence
Court Result
Newcastle Local Court
03 Mar 2009
Resist Officer in Execution of Duty
On each charge: Bond to be of good behaviour for 12 months.


Stalk/Intimidate, intend Fear of Physical/Mental Harm


Use Offensive Language in/near Public Place/School
Convicted. No penalty imposed.
Newcastle Local Court
25 Aug 2008
Possess Prohibited Drug
On each charge: Rising of the Court.


Fail to Quit Premises
Newcastle Local Court
25 Aug 2008
Resist Officer in Execution of Duty
On each charge: Convicted. Bond to be of good behaviour for 2 years.


Common Assault


Destroy or Damage Property
Newcastle Local Court
14 Mar 2007
Contravene Apprehended Domestic Violence Order
Community Service Order for 50 hours.
Newcastle Local Court
10 Jul 2006
Contravene Apprehended Domestic Violence Order
Imprisonment 2 months.
Newcastle Local Court
18 Jan 2006
Contravene Apprehended Domestic Violence Order
(2 charges)
Imprisonment 8 months. Non-parole period 1 month.


Assault Officer in Execution of Duty
Imprisonment 8 months. Non-parole period 1 month.
Newcastle Local Court
10 Oct 2005
Contravene Apprehended Domestic Violence Order
Without conviction. Dismissed.
Newcastle Local Court
19 May 2005
Common Assault
On each charge: imprisonment 7 months. Non-parole period 1 month.


Contravene Apprehended Domestic Violence Order
Newcastle Local Court
08 Mar 2004
Common Assault
On each charge: Without conviction. Bond to be of good behaviour for 12 months.


Destroy or Damage Property
In The Records Of The Australian Federal Police Or The Police In Any Australian State Or Territory As At 30 Mar 2009

RELEVANT LAW AND POLICY

  1. The relevant legislation in this matter is the Migration Act 1958 (the Act), and Direction No 41 on Visa Refusal and Cancellation under section 501 of the Act.
  2. Section 501(1) states that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that he or she passes the character test. Section 501(6) 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) 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.
  3. Direction No 41 which is made pursuant to section 499 of the Act must be applied when exercising the discretion where a person has been held to fail the character test in section 501 of the Act. In relation to the character test, events leading up the date of the decision of the Tribunal may be taken into account. (Shi v Migration Agents Registration Authority [2007] FCAFC 59; (2007) 158 FCR 525).
  4. Mr Poynder who represented Mr Wanyoike, initially argued that his client did not fail the character test, but conceded the issue when making his closing submissions, and submitted what remained before the Tribunal was the application of the discretion in Direction 41. Having reviewed the offences with which Mr Wanyoike had been charged, and those of which he was convicted, and the sentences which followed, I accepted that position.
  5. I am mindful that the Objectives of Direction 41 as set out in paragraph 5 are, pursuant to paragraph 5.1(1) to regulate, in the national interest, the coming into, and presence in Australia of non-citizens. Paragraph 5.1(2) states that:
“In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.”

  1. Direction No 41 contains a number of “primary considerations” and “other considerations” to which the Minister, and therefore the Tribunal standing in his shoes, must have regard when considering whether to exercise the discretion to refuse or cancel a visa.
  2. The primary considerations in Direction No 41 are set out in paragraph 10(1):
“...
  1. The primary considerations
...”

  1. There is a further range of factors which must be considered. There are also a number of “other considerations” that, where relevant, must be taken into account, but, generally, in accordance with Direction No 41, paragraph 11(1), they should be given less weight than the “primary considerations”. Both the “primary considerations” and “other considerations” are discussed in the paragraphs below.

PRIMARY CONSIDERATIONS

  1. The relevant “primary considerations” in Mr Wanyoike’s case are the protection of the Australian community, the length of time he has been ordinarily resident in Australia, and the best interests of his child, Max, aged five. The Applicant has an adult son in Kenya with whom he has renewed acquaintance after a period of some years, but he does not qualify for consideration in connection with the best interests of the child.

Protection of the Australian Community

  1. The primary consideration, “protection of the Australian community” (Direction 41), has been broken down into consideration of the seriousness and nature of the relevant conduct, and the risk that the conduct may be repeated.
  2. With regard to the seriousness of Mr Wanyoike’s conduct, I note that paragraph 10.1.1(1) states that “Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community”. A non-exhaustive list of offences and conduct are given in paragraph 10.1.1.(2). I am mindful that Mr Wanyoike has been charged with, and found guilty of assault on more than one occasion, assault being an example of a specifically mentioned offence which is considered to be serious.
  3. I had before me in relation to Mr Wanyoike, the Police Certificate which certifies that it provides “Disclosable Court Outcomes” between March 2004 and 3 March 2009. That document confirms that in March 2004, the first time when Mr Wanyoike was charged with assault, he was not convicted. That charge was “common assault and destroy or damage property”, and he was placed on a good behaviour bond for 12 months.
  4. As can also be seen from the list reproduced above, this was followed on 19 May 2005 by charges of “Common assault and contravention of an Apprehended Domestic Violence Order” (ADVO). Mr Wanyoike received a custodial sentence of seven months on each charge with a non-parole period of one month.
  5. As can also be seen from the list, this was followed by at least four further contraventions of ADVOs, and one assault between 2005 and March 2007, with resulting custodial sentences (eight months on two occasions, two months on one occasion, and Community Service Orders of 50 hours on another). Mr Wanyoike said that the breach which occurred in March 2007 was that he sent a text message to his ex-wife telling her about the time he had with their son on that day. Ms Krippner gave evidence that she complained about the March 2007 breach of the ADVO at the time, explaining however, that it was simply a text message, and not threatening. I noted that the charge of contravention of an ADVO on 10 October 2005 was dismissed.
  6. I am mindful that the above noted offences, particularly those where assault has been involved are serious offences, as noted by the sentencing remarks of Magistrate Wakely on 19 May 2005, which follow as relevant:
“Well, he has to be sentenced now for the offence of contravene the restraining order and assault, and certainly they are serious matters. They are matters of violence and in direct contravention of the court imposed restriction.
... unless the court otherwise orders, if a person is convicted of an offence against this section, the person must be sentenced to a term of imprisonment if the act constituting the offence was an act of violence against a person....”

  1. Mr Wanyoike gave evidence that he started drinking more heavily because of the isolation he felt living in Newcastle, and being financially dependent on his wife. He said it was also because of the problems which arose in their marriage as a result of which they argued a lot, adding however that they did not engage in any physical violence.
  2. I noted that Max their son was born on 21 October 2004. Mr Wanyoike and Ms Krippner acknowledged the breakdown of their marriage, and separated on 8 May 2005, followed by a divorce on 11 November 2006.
  3. Mr Wanyoike also told me that the majority of the offences he committed were associated with his drinking, and as a result of the frustration he felt at not being able to be with his son. He had to seek Ms Krippner’s permission for access which he found difficult to obtain.
  4. Mr Wanyoike also said that a number of other events impacted on his behaviour, including the death of his father in Kenya on 13 October 2008. He travelled to Kenya on 15 October 2008 to attend his father’s funeral, stayed until 24 November 2008, and returned unsettled, having no access to his son, and with nowhere to live. This resulted in the final matter with which Mr Wanyoike has been charged, being “Resist Officer in Execution of Duty – Stalk/intimidate, intend Fear of Physical/Mental Harm – Use Offensive Language in/near Public Place/School” made on 1 December 2008. As a result, on 3 March 2009, he received a good behaviour bond for 12 months. As to the offensive language charge; he was convicted, but no penalty was imposed. Those charges arose in connection with a woman whom he had met only a day or two day before the offences were committed.
  5. I was persuaded by Mr Poynder’s submissions in regard to the severity of the offences, noting that the last of the most serious offences leading to a term of imprisonment was the contravention of an ADVO in July 2006, which is now over three years ago. I noted that the offence following that, and for which Mr Wanyoike was convicted, was in March 2007, and that that was also a breach of an ADVO. He received a Community Service Order of 50 hours for that offence, but no custodial sentence.
  6. According to the material before me, Mr Wanyoike has not offended during 2009, the bond he received in March 2009 being for offences committed on 1 December 2008 which have been referred to above.
  7. Ms Krippner’s Statutory Declaration dated 13 March 2009 was in the G-documents. Her evidence was that Mr Wanyoike having regular contact with Max had been sorted out with the Consent Order given effect under the Family Law Act 1975, in December 2008. Mr Wanyoike also told me that the source of his problems has resolved, he has been able to communicate with Ms Krippner, and has access visits with his son, which have been supervised through Relationships Australia. Mr Wanyoike also gave evidence that on a very few occasions when he did not feel well, he informed Ms Krippner before any access visit took place, and cancelled the visit. This was corroborated by Ms Krippner. I accepted that Mr Wanyoike has, in that regard, been acting responsibly, and with insight into his behaviour.
  8. Ms Krippner also gave oral evidence at the hearing supporting Mr Wanyoike’s application to remain in Australia. She emphasised that her attitude towards Mr Wanyoike had changed from the view she held of him in mid-2006 when she felt harassed and intimidated by him. Ms Krippner acknowledged that Mr Wanyoike had undergone alcohol rehabilitation programs, and stated that she was now confident that he understood his drinking problem, and that she no longer felt any fear that he would physically or emotionally harm her or Max.
  9. Ms Krippner confirmed that Mr Wanyoike having regular contact with Max had been sorted out with the Consent Order given effect under the Family Law Act 1975 in December 2008. She told me that Max and his father had some supervised visits between 2006 and 2008, but that he had unsupervised access in 2009. She said that her relationship with Mr Wanyoike had settled down, with the alcohol rehabilitation, he was stronger, he received more support from her, and from a few friends who understood him. She said that she was contemplating Max and his father having unsupervised overnight visits in the future. She emphasised that it was in Max’s interest to be able to spend time with his father, which he cannot have at the moment because Mr Wanyoike is in detention. She felt that Mr Wanyoike would benefit from the stability of knowing he could remain in Australia, and that this would assist him with his newly developing, and more acceptable behaviours.
  10. Dr C Lennings, a clinical psychologist, interviewed Mr Wanyoike and assessed him on behalf of Hardy Lawyers, and in connection with the visa cancellation. His report dated 29 October 2009 was Exhibit A2, and he gave oral evidence by telephone at the hearing. Dr Lennings remarked that Mr Wanyoike had fought hard in order to have contact, and maintain a relationship with his son. He had undertaken alcohol rehabilitation, an anger management course, and sought other assistance.
  11. Dr Lennings opined that Mr Wanyoike does not profess anti-social attitudes or anti-social behaviours, and that his criminal record was primarily associated with the problems in his relationship and communication with his ex-wife, or associated with aggressive displays of behaviour upon intoxication, and when confronting police. He considered Mr Wanyoike’s offending as situational rather than dispositional in nature.
  12. I am mindful of the evidence that Mr Wanyoike has undertaken a number of courses and activities in order to assist with his problems, and am satisfied from the evidence he gave at the Tribunal that he now has some insight into his problems, which will assist with his full rehabilitation. They included a two week alcohol abstinence program at Kirkwood House in October 2005, a 10 week Anger Management Program, and the Pathways to Education and Employment Program in December 2005, 12 weeks of residential rehabilitation at Kirkwood House in 2006 while under the supervision of the Probation and Parole Service, a Fathering Course in August 2006, Positive Lifestyle Program in August 2008, and Kirkwood House again in 2009. Mr Wanyoike has also worked as a volunteer in various places, (acknowledged in the G-documents).
  13. Mr Wanyoike told me that as a result of the Parenting Orders in relation to Max made in the Federal Magistrates Court of Australia in Newcastle on the basis of Terms of Settlement (18 December 2008), between himself and Ms Krippner, he was much more settled. I do not have a record that Mr Wanyoike has offended since.
  14. In considering the protection of the Australian community per Direction 41, I have dealt with the seriousness and nature of the relevant conduct by Mr Wanyoike. I am persuaded Mr Poynder’s argument as put above, being that the offences were at the lower end of the severity scale, and that they related to alcohol consumption and to the issue of access to Max, all of which Mr Wanyoike has now addressed.
  15. I must also consider the risk that the conduct may be repeated. Previous general conduct and total criminal history are relevant.
  16. The Respondent’s written submissions indicated that the Minister contended pursuant to Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN No 81, that the Tribunal should find that even a reduced risk of re-offending can have serious consequences for the Australian community warranting the refusal of Mr Wanyoike’s visa for its protection. The Respondent cited in particular the breaches of court imposed orders which Mr Wanyoike committed on several occasions. The Respondent also submitted that re-offending after undertaking a number of courses, including anger management, was evidence of a propensity for unacceptable criminal behaviour.
  17. I noted also that Dr Lennings opined that there were several factors in relation to recidivism. He considered Mr Wanyoike’s offending as situational rather than dispositional in nature.
  18. Dr Lennings noted that the difficulties in the relationship between Mr Wanyoike and Ms Krippner had settled down, the Applicant has access to Max, which is what he wants most, and that he appears to have gained some cultural familiarity with Australia. Dr Lennings mentioned the destabilising effect the death of his father had on Mr Wanyoike, and also alcohol consumption as a difficulty in his life. Dr Lennings opined however that Mr Wanyoike had made significant gains in that area, was responding to treatment, and the risk of him offending criminally was moderate. He opined that: “It is likely the father can achieve stability, and it is also likely that it will be of more benefit to Max to be allowed to develop a meaningful relationship with his father than be deprived of him”.
  19. It is clear from his record that Mr Wanyoike has offended several times, and I accept that it has mainly been in connection with family and child access issues. Alcohol has been a serious problem for Mr Wanyoike. He has however undertaken alcohol rehabilitation courses, and I am mindful that the Orders under the Family Law Act in relation to the access to Max have resolved many tensions between the couple. Neither has Mr Wanyoike committed any offences in 2009.
  20. Ms Tibell submitted in relation to previous general conduct that the last offence Mr Wanyoike committed, on 1 December 2008, took place after he had received a Notice of Intention to Refuse his Visa in October 2008. That is so, and I note further that the offences were in relation not to Ms Krippner or Max, but towards a woman Mr Wanyoike had only met a day or two before 1 December 2008. That does not necessarily ameliorate the situation, except that in that regard I have taken into account the evidence before me, including that of Dr Lennings that the Applicant had just returned from Kenya where he had attended his father’s funeral. I accept that the death of Mr Wanyoike’s father had a significant effect on him, and accept from the evidence that he returned unsettled, and somewhat lost.
  21. Whilst I do not wish to trivialise the offences, I am mindful of Mr Poynder’s submissions that the gravity of the offences with which Mr Wanyoike was charged on 1 December 2008, is reflected in the fact he received no custodial sentence, but a good behaviour bond of 12 months when he came before the Local Court on 3 March 2009.
  22. I was persuaded by Mr Poynder’s submissions that the main stressors which caused Mr Wanyoike to criminally offend have been resolved, and that accordingly his risk of recidivism is greatly reduced.
  23. I accepted Ms Krippner’s evidence that she no longer fears that Mr Wanyoike will harm her or Max. She told me that his access to Max has become more flexible, and that it is her intention to give him unsupervised overnight access with his father. She supports Mr Wanyoike’s efforts to remain in Australia.
  24. Taking into account all the evidence and submissions, I am satisfied that the significant risk of Mr Wanyoike again engaging in criminal conduct in Australia, including harassing, stalking intimidating or stalking is low. I am satisfied that paragraph 10.(1)(a), of the “primary considerations”, being the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes of violence has been addressed, and that Mr Wanyoike, if he is to remain in Australia is more likely than not, to not compromise the protection of the Australian community referred to in paragraph 10.(1)(a). On the evidence before me, I find that the overall risk of Mr Wanyoike re-offending is low.

Whether the person was a minor when they began living in Australia

  1. I am satisfied that as Mr Wanyoike was 42 years old when he arrived in Australia, this head does not assist.

The length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct

  1. Mr Wanyoike has been in Australia since 2002. He was first charged with “common assault”, and “destroy or damage property” in 2003. When the matters were heard in March 2004, the Local Court in Newcastle did not convict Mr Wanyoike, but put him on a good behaviour bond for 12 months.
  2. The Respondent referred in its submissions to paragraph 10.(3)(1), noting that more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity.
  3. I am satisfied that Mr Wanyoike offended less than two years after his arrival in Australia, but am satisfied as I have stated above, that his main stressors have now been addressed, and that the considerations in paragraph 10.(3)(1) should therefore be given less weight than they otherwise might in the light of a finding above of a low risk of recidivism.

Relevant international obligations, including but not limited to:

(a) the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
(b) the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
  1. It was agreed by the parties, and I accept that paragraph 10.(1)(d)(b) is not relevant to this case. However paragraph 10.(1)(d)(a), the best interests of the child, are very relevant.
  2. Mr Poynder’s submissions were as follows:
“This factor is again overwhelmingly favourable to the applicant. He has a 5 year old son, Max, with whom he has now established regular contact. There is nothing to displace the presumption - in par 10.4.1(4) - that Max’s best interests will best be served by the applicant remaining in Australia to continue and develop this relationship. This is strongly reinforced by the evidence of Max’s mother, as well as his grandmother, Ms Margot Krippner, (G-documents p109), and other people familiar with the applicant’s relationship with Max (G-documents p125.)
A consideration of the other factors set out in par 10.4.1.5(a)-(o) of Direction 41 also emphasises the importance of Max’s relationship with the applicant:
(a) Under par 10.4.1(5)(a), the applicant has parental rights and regular and meaningful contact with Max.

(b) Under par 10.4.1(5)(b), while there have been “gaps” in the relationship between Max and the applicant, since December 2008 - and particularly since the applicant’s release from remand on 3 March 2009 - the relationship has been unbroken and ongoing, and all the evidence is that this has been greatly to the benefit of Max.

(c) Under par 10.4.1(5)(c), it is now likely that the applicant will continue to play a full parental role up to until Max’s eighteenth birthday.

(d) Under par 10.4.1(5)(d), Max is only 5 years old, which means that he will have a significant and long-standing relationship with the applicant.

(e) Under par 10.4.1(5)(e), Max is an Australian citizen, which suggests that he should not be required to leave Australia to maintain a meaningful relationship with his father.

(f) Under par 10.4.1(5)(f), Ms Krippner’s statement emphasises that Max’s permanent separation from the applicant will likely to be negative, not only emotionally but also in terms of his lost culture.

(g) Under par 10.4.1(5)(g), there is no other person who already fulfils the applicant’s parental role in relation to Max.

(h) Under par 10.4.1(5)(h), there is no evidence that the applicant’s prior conduct has had a negative impact on Max.

(i) Under par 10.4.1(5)(i), Max has spent his entire life in Australia, and he should not therefore be required to leave Australia to maintain a meaningful relationship with his father.

(j) Under par 10.4.1(5)(j), there are Court orders relating to Max’s access to the applicant which would be rendered meaningless if the applicant had to leave Australia.

(k) Under par 10.4.1(5)(k), Max appears to be thriving from his recent contact with the applicant[1] and no doubt would wish to remain in direct contact with his father.

(l) Under par 10.4.1(5)(l), Max is most unlikely to accompany the applicant overseas in the event he is removed from Australia; if the decision to refuse the applicant a visa is affirmed Max may not see him again, or at least for many years.”

  1. The Respondent cited Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568; (2001) 107 FCR 133, submitting that the case made clear the approach to be adopted in cases involving children, which is first, to identify the best interests of the child with regard to the exercise of the discretion not to refuse the visa and secondly, to “to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration”.
  2. Ms Tibell submitted that in considering the best interests of any children the Tribunal should consider the factors listed in paragraph 10.4.1(5) of the Direction. She acknowledged on behalf of the Minister that the best interests of the child will normally lie with having both parents present in the child's life, and further that Mr Wanyoike, as a result of an order of the Federal Magistrates Court of Australia on 18 December 2008, now has unsupervised access to Max one day a week, noting that at the time of writing the submissions, this access did not include overnight access.
  3. Ms Tibell submitted that Mr Wanyoike had had long periods of separation from Max in his earlier years due to the apprehended violence orders taken out against him by Max's mother, acknowledged however that Max may suffer some hardship if Mr Wanyoike's visa is refused, and Mr Wanyoike had to return to Kenya.
  4. Ms Tibell contended that whilst the best interests of the child is a primary consideration and should be given weight accordingly, the Tribunal should place less weight on it in this matter than on the other primary considerations. She contended further that whilst it may be in Max's interests for Mr Wanyoike's visa not to be refused, the Minister contended that the protection of the Australian community consideration outweighed the best interests of the child in this case. I do not agree with that, and have pointed out in the paragraphs above that the protection of the Australian community would not be compromised by Mr Wanyoike remaining in Australia.
  5. Having considered the submissions of both parties, and all the sub-paragraphs of paragraph 10.4.1.(5), I am persuaded that the factors which weigh in favour of Mr Wanyoike obtaining a visa to stay in Australia are the best interests of Max. I have noted that Ms Tibell acknowledged on behalf of the Minister that the best interests of the child will normally lie with having both parents present in the child's life.
  6. Max is a five year old Australian citizen who is born in this country, and has had regular contact with his father since his birth. I am mindful there have been gaps in their contact due to disagreements between his parents, and periods of Mr Wanyoike’s incarceration. This situation is likely to improve as following supervised access which he had between 2006 and 2008, Mr Wanyoike has had more unsupervised access visits with Max. I have noted also Ms Krippner’s evidence that she is anticipating unsupervised overnight access for Mr Wanyoike and Max. It not in dispute that since the Consent Orders made under the Family Law Act in December 2008, the situation between Ms Krippner and Mr Wanyoike has improved. I prefer Mr Poynder’s submissions, and am satisfied that in the best interests of Max, Mr Wanyoike should be granted a visa.

OTHER CONSIDERATIONS

  1. Direction No 41 states that “other considerations”, where relevant, must be taken into account but, generally, should be given less weight than the “primary considerations”. Relevant considerations in Mr Wanyoike’s case are his family ties, and the nature and extent of his relationships with those in the Australian community, his age, his links with Kenya, and whether he has been formally warned in the past that his visa might be cancelled because of his criminal conduct.
  2. I have already noted above that Mr Wanyoike was born in Kenya where he lived until 2002, when he came to Australia, aged 42. He is now 49 years old, and to my knowledge has returned to Kenya only once, for approximately a month in 2008, for his father’s funeral. Mr Wanyoike told me that he has telephone contact with his siblings, and re-established contact with his adult son in Kenya.
  3. Mr Wanyoike’s family and relationships of significance in Australia are his relationships with his ex-wife, and his son Max. I am satisfied that he has great affection for Max, and that the majority of the offences he committed were in connection with obtaining access to Max.
  4. Ms Krippner deposed in her Statutory Declaration, and corroborated in her oral evidence that she supported Mr Wanyoike staying in Australia. She told me that Mr Wanyoike having regular contact with Max had been sorted out with the Consent Order given effect under the Family Law Act 1975 in December 2008, and that Max and his father had some supervised visits between 2006 and 2008, and that he had unsupervised access in 2009. Her relationship with Mr Wanyoike had settled down now, she said, with the alcohol rehabilitation, he was stronger, he received more support from her, and from a few friends who understood him.
  5. Dr Lennings, remarked that Mr Wanyoike has fought hard in order to have contact, and maintain a relationship with his son, and has undertaken alcohol rehabilitation, anger management and other assistance. Dr Lennings opined that Mr Wanyoike does not profess anti-social attitudes or anti-social behaviours, and that his criminal record was primarily associated with the problems in his relationship and communication with his ex-wife, and considered Mr Wanyoike’s offending as situational rather than dispositional in nature.
  6. I am satisfied Max would suffer hardship without the presence of his father in his life in Australia, and I accept that his being sent back to Kenya would cause significant hardship to Mr Wanyoike by separating him from his family in Australia.
  7. In considering the various sub-paragraphs of paragraph 11, I am mindful that Mr Wanyoike’s age, and education are not particularly relevant considerations in this case.
  8. I note without further comment Mr Poynder’s remarks that Mr Wanyoike would find the standard of ongoing assistance with any alcohol related problems in Australia of a higher standard than those in Kenya.
  9. I am mindful of two references Mr Wanyoike has provided from two persons who have known him for a period of years, and who speak well of him, and his relationship with Max.
  10. There was no disagreement between that parties that the Applicant has never been formally advised about the visa refusal and cancellation provisions.
  11. Ms Tibell submitted that these “other considerations” do not outweigh the “primary consideration” of the protection of the Australian community. I am satisfied that the protection of the Australian community would not be compromised by Mr Wanyoike remaining in Australia, and find from the evidence that the risk of recidivism is low. In considering Mr Wanyoike’s situation, I am satisfied, as stated above, that weight should also be given to his relationship with Max.

CONCLUSION

  1. My first duty has to been to weigh up the “primary considerations”, to which I am required to give greater weight. Not surprisingly Mr Poynder argued for Mr Wanyoike to be able to remain in Australia, while Ms Tibell contended that in determining whether to exercise the discretion to refuse Mr Wanyoike's visa in section 501(1) of the Act, the primary consideration of the protection of the Australian community weighed heavily in favour of the refusal of Mr Wanyoike's visa. I have already considered both arguments and the submissions of both parties above.
  2. On the evidence before me, including that of Dr Lennings who opined that Mr Wanyoike had made significant gains in rehabilitation, my conclusion is that the overall risk of Mr Wanyoike re-offending is low. I am satisfied that the protection of the Australian community would not be compromised by the granting of a visa to Mr Wanyoike so that he can remain in Australia.
  3. The best interests of his child, Max, strongly favour Mr Wanyoike remaining in Australia. In terms of the relevant “other considerations”, to which I am required to give less weight, in my view, his family ties, in particular the interests of Ms Krippner, and Max which are the most relevant of the “other considerations”, in this case, also favour Mr Wanyoike remaining in Australia.
  4. Having weighed up these considerations, I am satisfied that the discretion in to grant Mr Wanyoike a visa should be exercised in his favour.

DECISION

  1. The Tribunal sets aside the decision under review. It substitutes a decision that the discretion in Direction No 41 be exercised in Mr Wanyoike’s favour, and that he be granted a Partner (Residence)(Class BS) visa.

I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member

Signed: ..........[sgd]

Associate


Dates of Hearing 9 November 2009

Date of Decision 26 November 2009
Applicant’s counsel Mr N Poynder
Applicant’s solicitor Hardy Lawyers

Respondent’s solicitor Ms A Tibell, Clayton Utz

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