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Tewao and Minister for Immigration and Citizenship [2011] AATA 329 (18 May 2011)

Last Updated: 23 May 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 329

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2011/792

GENERAL ADMINISTRATIVE DIVISION
)

Re
HEYDON TEWAO

Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal
Ms N Bell, Senior Member

Date 18 May 2011

Place Sydney

Decision
The Tribunal sets aside the decision under review and decides instead that Mr Tewao’s visa should not be cancelled.

..................[sgd]............................
Ms N Bell, Senior Member

CATCHWORDS – Citizenship – cancellation of visa – not of good character - substantial criminal record - protection of the Australian community – family ties and relationships


Migration Act 1958

Ministerial Direction No. 41 on Visa Refusal and Cancellation under section 501 of the Act


REASONS FOR DECISION
Ms N Bell, Senior Member


  1. Heydon Harlem Tewao left New Zealand at his mother’s urging and of his own volition, in part to seize Australia’s economic opportunities and in part to escape the life and family ties that seemed to lead to crime and violence. But he took with him a custom of substance and alcohol abuse and on a drunken and drugged night after just 17 months in Australia, in the company of his cousin William, he committed a crime that sent him to goal for three years and three months with a non-parole period of 16 months, grounded the cancellation of his visa and consequent proposed deportation, and left the victim of his powerful fists with horrible injuries to his face.
  2. It is agreed he does not pass the “character test” in the Migration Act 1958 and the Minister may cancel his visa. (See sections 501(2), (6) and (7) of the Act).
  3. Ministerial Direction No. 41 on Visa Refusal and Cancellation under section 501 of the Act is a set of primary and “other” considerations that I must take into account in the exercise of the discretion whether to cancel Mr Tewao’s visa and effectively send him back to NZ.
  4. The primary considerations in the Direction are:
  5. These considerations are expanded by a range of factors to which I must have regard. The additional “other” considerations contained in the Direction and relevant to Mr Tewao’s circumstances are indicated by the headings that appear below.

BACKGROUND

  1. Mr Tewao stands at seven feet tall. He is a huge man, 26 years old, with shoulders like buttresses and legs like pylons. His hands, as fists, resemble demolition balls. He was born into a family governed by one of the gangs that trouble some parts of New Zealand. His grandfather was and still is enmeshed in gang culture and criminal gang activity. His mother did her best to keep her three children from it but Mr Tewao was the favourite grandchild, worked with his grandfather in his roadwork business and enjoyed his patronage. His size made him valuable to the gang but he refused initiation despite not wanting to disappoint his grandfather. He was, however, enveloped by gang life by the time he left NZ in 2007.
  2. Yet Mr Tewao, or “Tiny” as he is known, seems for all his mountainous bulk a gentle man. He stands as if in apology for the space he takes up. His head is often bowed as he holds his massive hands clasped loosely in front of him. His speech is tentative and his voice soft. He is said to be mildly intellectually disabled, but his words occasionally catch his thoughts and form a comment so insightful or a connection so nimble that one must play the words over to be sure they were his. When he recedes into the chasm between thought and vocabulary, the poor verbal ability mentioned by the psychologist who reported on him, he grinds to a frustrated and resigned halt. One wonders what it must be like to continually face the fearful response of those he meets and to keep that massive piece of human machinery running every day. It is sometimes hard to see the person inhabiting it and one imagines a smaller, more articulate man struggling to break out from inside the bulk, throwing bright glimpses of himself out to the world.
  3. After watching him and hearing him speak, it is difficult to imagine him attacking anyone, but the convictions for aggravated robbery, a serious and violent crime, and two subsequent lesser convictions for resist arrest and common assault and damage to property are firmly embedded in the record.
  4. He says he has no recollection of the night of his most serious crime and knows only what he has read and what his cousin told him, but he cringed when asked about it and hung his head in shame. He ventured that his amnesia might be alcohol induced or it might be he is saving himself from the pain of the memory
    (“I don’t want to remember what had happened that night”). He has thought to try to find the man he bashed so he can say he's sorry.
  5. Mr Tewao has another dimension. When he can, he paints on canvass. He likened it to other people having a diary, he having a painting, and described it as “personal”. He paints only for himself. And there is his love of opera. He first saw it on YouTube and though he doesn’t understand the words he feels it deeply. Talking about it brought a luminous smile to his face, but embarrassed him profoundly. He said “But I’m like – like, I’m an Islander, you know. An Islander listening to opera, you know, that’s not – it’s like one out of a million.”
  6. “Unusually sensitive” were the words the reporting psychologist used to describe him.

PRIMARY CONSIDERATIONS

  1. The primary consideration of most importance in relation to Mr Tewao is the protection of the Australian community. Given his recent appointment as godfather to his 14 month old niece, Australia’s international obligations under the Convention on the Rights of the Child are also relevant and require me to consider that child’s best interests.
  2. Also relevant is the length of time Mr Tewao was resident in Australia before he committed the offences. He was 20 when he came to Australia and so no consideration of minority age applies.

PROTECTION OF THE AUSTRALIAN COMMUNITY

  1. The Direction requires me to consider, in the context of protection of the community, the seriousness and nature of the criminal conduct and the risk that it may be repeated.
  2. Mr Tewao has the following three convictions:
Conviction date
Charge
Sentence
25 June 2010
Resist Officer in Execution of Duty
Imprisonment: 6 months commencing 09/10/2009

Common Assault
Imprisonment: 6 months commencing 09/10/2009
13 May 2010
Aggravated Robbery
Imprisonment: 3 Years – 3 months commencing 05/11/09 concluding 04/02/13. Non-parole period with conditions: 1 Year – 4 months commencing 05/11/09
18 September 2009
Destroy or Damage Property (less than $2000)
Conviction proved. Monetary fine: $500. Court costs: $76.

  1. His first offence, aggravated robbery, is the most troubling and is the offence that places him foul of the character test. On sentencing, Acting Judge Madgewick summarised the circumstances of the crime. Mr Tewao had been at the pub, drinking all day with his cousin, William. He had also been smoking cannabis and had taken ecstasy. His cousin had the idea of “rolling” the victim, who had just sold him some cannabis. It appears Mr Tewao was used as enforcer, having been asked by William for his help. That is when Mr Tewao battered the victim’s face. Acting Judge Madgewick considered Mr Tewao reacted blindly and drunkenly without any planning and that it was an entirely opportunistic crime. His Honour described it as the “brutal bashing and robbery of a peaceful young man who had offered no provocation at all” but noted Mr Tewao’s remorse, his prompt plea of guilty and the fact that, referring to both Mr Tewao and William, “as young children effective intervention was not undertaken to get them out of the drug and alcohol ridden mess into which their situation had landed them”. His Honour held hope for rehabilitation, provided a formal program was to be undertaken.
  2. Mr Tewao was reluctant to “point the finger” at his cousin, even when encouraged to do so on questioning by the Tribunal and by Counsel. He took responsibility for his own actions, rather than blaming another.
  3. The Probation and Parole Service Pre-Sentence Report said Mr Tewao expressed regret for his actions and described him as heavily dependent on his cousin for social, emotional and financial support. They were very close, having been raised together like brothers.
  4. Mr Tewao told the Tribunal, as he had the Probation and Parole Service, that he had wondered how his actions affected the victim. He knew something of the notion of victim empathy and thought it would be better to apologise to the victim face to face, rather than by writing him a letter.
  5. Mr Tewao’s second offence, resist arrest and common assault, occurred two weeks after the aggravated robbery. He was again at the pub, drinking with William, when two policemen approached and arrested him for the aggravated robbery. He went with them peacefully, not handcuffed, and entered the paddy wagon with no resistance. As he travelled in the wagon he could see William being chased down the street by police. When he reached the police station and got out of the paddy wagon he saw some 20 policemen in a circle, awaiting his arrival. He said he was given a “wristlock” and demonstrated a bending back of his wrist that looked painful and, he said, unnecessary, given his willingness to submit to what he saw as his inevitable punishment. He was taken into the building and three policemen directed him into a lift. He said he baulked at this, being claustrophobic and unable to explain himself, and was pushed inside. He said that in the lift he swayed from side to side, pushing officers into the walls. At first he said he never threw a punch but later could not definitely recall. He did say he was “agitated” and seemed to understand that his behaviour could be interpreted as resistant. He said that at some point the lift got stuck. It is not hard to imagine the mood of the officers, trapped in that small space with an intoxicated, agitated seven foot tall arrestee. He received a sentence of six months imprisonment, served concurrently with his primary sentence.
  6. Mr Tewao’s third offence was malicious damage to property, committed while he was on bail. He was at a nightclub, again with William who was “wasted” and who began an argument with the club’s bouncers. As William was being pushed out of the club, Mr Tewao came to the rescue of his cousin (“Because I’ve always been the bodyguard type of person, protection, like ...”) and was pushing back against the bouncers. As he did so and grabbed onto a stair railing to anchor himself the steel pole broke away from the wall. Surprised and apologetic, he politely handed it back to the bouncers. For that he was fined $500.
  7. I note that no evidence was introduced about the circumstances of the second and third offences; the Tribunal had only Mr Tewao’s evidence about this. The first of his offences is the most serious, although his later offences also show that he had yet to grasp the dangers of drinking to excess and being in the company of his cousin.
  8. Mr Tewao has no prior record of convictions. I believed him when he said he had never been involved in fistfights in NZ or elsewhere in Australia. I accept as truthful his advice to the Parole Service that he had never before harmed another person. He told the Tribunal about frequent provocation in prison, the inmates’ need to make a name for themselves by challenging him, and his ability to walk away. I also note Dr Lennings assessment of his serious offence as out of character.
  9. Alcohol was a common factor on all occasions of offence, as was the presence of his cousin. Mr Tewao’s risk of recidivism seems to be linked to alcohol abuse and troublesome company. Dr Lennings identified alcohol as the highest risk factor for Mr Tewao’s recidivism.
  10. Mr Tewao was a chronic binge drinker as a teenager but gradually his preference moved to cannabis. He maintained that as a daily habit until his incarceration. Prior to leaving NZ, he used crystal methylamphetamine on a regular basis. He says he did not use that drug once in Australia, his brother Sunny helping him to stop cold turkey. He had an unusually close relationship with his cousin William, who followed him to Australia. William now lives in Melbourne and although they may cross paths at infrequent family gatherings, Mr Tewao knows that their relationship must be at arm’s length.
  11. In prison Mr Tewao completed the Drug and Alcohol Addiction Program and the Gurnang Life Challenge program to satisfactory levels. There was a notation in the Probation and Parole Service pre-release report of Mr Tewao appearing not to have taken the Drug and Alcohol Addiction Program very seriously. Mr Tewao said in his statement that later on he had time to think about it and realised it was valuable. When I asked him what he had learned from the program he completed he said he learned that it is important to have something of interest to occupy one’s time, hobbies and the like, because drug and alcohol use is often a function of having nothing else to do. With his interests in painting and opera, and his new role as a godfather, Mr Tewao is better placed than many to put this lesson into practice.
  12. Mr Tewao said that many substances were available in prison but he avoided them. He said he wanted to change and to stay out of trouble. He has not taken any drug since he entered prison. Mr Tewao’s stepfather, Mr Leo, is a drug and alcohol counsellor and has left NZ to live permanently in Perth along with Mr Tewao’s mother, sister and brother in law. He gave evidence of his intention to begin a “Stages of Change“ program with him with a view to helping Mr Tewao to complete his rehabilitation. Mr Leo described a good relationship with his stepson, one of mutual respect arrived at after the initial awkwardness of being the new man in his mother’s life some nine years ago. Mr Leo also agreed that if it appeared that
    Mr Tewao would benefit from undertaking some other program then he would enthusiastically support that, financially and otherwise. Mrs Tewao, Mr Tewao’s mother works as a social worker in prisoner rehabilitation. She gave evidence of her preparedness to support her son, primarily as his mother, but drawing on her professional experience in doing so. I note that it is a condition of Mr Tewao’s parole that he undertake drug and alcohol rehabilitation if directed by his parole officer to do so. Mr Tewao’s parole period ends in February 2013.
  13. Almost all of Mr Tewao’s immediate family have relocated permanently to Perth. Mr Tewao’s parents currently live with his sister and her husband but will soon move to another house nearby. The Probation and Parole Service has agreed for Mr Tewao’s parole to be supervised in Perth and for him to relocate there, if he remains in Australia. The Service has assessed Mr Tewao’s sister’s home, where Mr Tewao will live if allowed to remain in Australia, and has found it suitable.
  14. Mr Tewao’s sister, Ms Baker, is married with a 14 month old daughter. Both she and her husband are employed. Mr Tewao has a good relationship with both of them. She is a powerful person, focused and goal oriented, and known affectionately by her family as the “Sergeant Major”. Mr Tewao said, with a smile on his face, that she is “pretty stubborn”. Ms Baker said she places the welfare of her baby daughter above all other things in her life and expressed confidence in her brother’s ability to care for the child as a loving and responsible godfather. She was very clear about her expectations of Mr Tewao and her requirements that he engage in no drinking, drug taking or cigarette smoking in her house. When asked what she would do if
    Mr Tewao transgressed, she didn’t miss a beat when she said “I’d call the police”. I believe she would.
  15. Ms Baker has secured employment for her brother with a friend who owns a four wheel drive parts distribution company. She and her husband intend to purchase driving lessons for Mr Tewao so he can get to his job more easily and, presumably, so he can take his goddaughter to and from childcare – one of his intended responsibilities as godfather. Ms Baker and her husband have undertaken to buy Mr Tewao a car when he gets his licence. She is also prepared to fund drug and alcohol rehabilitation training for him.
  16. It was respectfully suggested that the nearness of his immediate family when they were all in NZ did not prevent Mr Tewao from using drugs and alcohol when he was there. A number of changes have since been wrought on that family: their permanent settlement in Perth, father and mother both employed in the counselling and social services sector in Perth, all now fully aware of Mr Tewao’s susceptibilities and experiences and all aware of what is at stake for him, his sister’s marriage, the birth of a grandchild, the crescendo of Mr Tewao’s imprisonment and now the threat of his deportation. Mrs Tewao referred to herself as having previously been in denial about her son. It was sobering to see an obviously loving and conscientious mother so readily acknowledge error and do so with such stoic dignity. There have been profound changes in that family and all of its members acknowledge that it will not all be plain sailing. They appear realistic about the challenges ahead and committed to confronting them with enlightened and firm determination. It brings the term “tough love” to mind.
  17. Mr Tewao made something of a rod for his own back when he gave the honest evidence that while he will never touch cannabis or other drugs again, he might have two or three drinks now and again to be sociable, although he has not touched alcohol since his imprisonment. He said he considered alcohol to not be a problem for him in that he can choose not to drink and has often done just that, particularly in protective mode. However, he acknowledged that alcohol had been a common element in each of his offences. When asked, he said that while he had experience of either drinking to extreme intoxication or not drinking at all, he had never just had two or three drinks and stopped at that. However, his father gave evidence of having had “a few drinks” with him over a barbeque after some job well done. His sister gave evidence of drinks on a Friday night when they were living in Brisbane and walking home and talking reasonably sensibly after he and her husband had each consumed a dozen beers.
  18. The evidence of Dr Lennings on this point was that in “controlled drinking”, abstinence for one month must first be accomplished before a person’s ability to stop at three standard drinks is assured. He mentioned the “three drinks three times a week” rule of thumb and spoke of the danger of a person’s judgement being impaired after three standard drinks – the equivalent of two schooners. However, he said that at three standard drinks a person is still below 0.5 per cent blood alcohol level and no risk is raised. Dr Lennings said that Mr Tewao’s ability to abstain from drinking on some occasions shows that he has some restraint. He said he doesn’t demonstrate alcohol dependence or loss of control in drinking but that he is still untreated and has yet to learn “all the skills that he would need for the occasion when it does get tempting to have one more”. He said such treatment is readily available as a series of eight to twelve outpatient sessions at drug and alcohol centres around Australia. When Dr Lennings was alerted to Mr Tewao’s father’s experience as a drug and alcohol counsellor, he considered that Mr Tewao would be likely to be amenable to information support and advice from his father. But he considered he would also benefit from non family or independent treatment.
  19. Dr Lennings’ assessment of the risk of recidivism by Mr Tewao was low to low moderate and merely low if he is allowed to stay in Australia and have the benefit of support from his immediate family.
  20. There is a risk of recidivism. There is always some degree of risk. But I consider it to be low, given Mr Tewao’s previous and subsequent avoidance of violence, his personal resources including his appreciation of art and music so foreign to the world he grew up in, his emerging insight into his own behaviour and, not least, his firmly loving immediate family, all of whom are intent on keeping him close and supported. I also consider it to be low because of his naturally peaceful and conciliatory nature and his hopes for the future. The following exchange, after Mr Tewao explained to me that he has now “grown up”, is now a man instead of a boy, speaks for itself:
SM Bell: Given that you have grown up ?
Mr Tewao: Yes.
SM Bell: What change has that created for you? How are you different now that you have grown up? What are some of the things about you that are different?
Mr Tewao: I have opened up more. It doesn’t seem like it here, but I have opened up more in general. I have learnt to, you know – I have learnt to control my frustrations – not all of it, but it’s a step, you know, that I have started. I have got off the marijuana. Like, we used to get urine tested in gaol - - -
SM Bell: Right?
Mr Tewao: To see if we have been smoking or doing drugs in gaol.
SM Bell: What else has changed that is part of you now ?
Mr Tewao: As a different person. Yes.
SM Bell: being a man instead of a boy?
Mr Tewao: My little sister has had a baby.
SM Bell: Yes?
Mr Tewao: A baby girl. Yes, so that’s – that’s kind of, you know, like a – yes, something – something to take responsibility for other than yourself. Yes. Just having – having goals – having goals, you know. Having something that you can work for, you know.

SM Bell: And what do you want to work for?
Mr Tewao: I want to be – I just want to work for – for my own house, and to travel. That’s all I want to work for. And you know, later on down the track I will probably have a family, but that’s not until later, later on. Yes. I kind of want to explore everything else. (Tr. p. 43)

LENGTH OF TIME RESIDENT IN AUSTRALIA

  1. Mr Tewao was resident in Australia for just 17 months before he offended, but so far as the length of his residence indicates ties to Australia, it must be recognised that his family resides here now and so his ties here are stronger than they would be if his immediate family remained in NZ.

INTERNATIONAL OBLIGATIONS

  1. Mr Tewao’s intended relationship as godfather and uncle to his 14 month old niece raises Australia’s obligations under the International Convention on the Rights of the Child and, in particular, the child’s best interests. Mr Tewao and his goddaughter have no relationship as yet, but her mother wants Mr Tewao to be the person who would care for her in the event that she and her husband could not. She anticipates Mr Tewao would have a close relationship with the child, taking her to and collecting her from childcare and living with her in her parents’ house. She wishes Mr Tewao to be a person her daughter could consult for advice and guidance in addition to her parents. Mr Tewao said that he wants to show her how to not follow in his footsteps. When he talked about his goddaughter, another rare smile lit his face and he said he has “butterflies” about meeting her.
  2. Mrs T, when asked about her hopes for Mr Tewao’s relationship with his goddaughter, described her image of Mr Tewao swooping her up and holding her in the air. One thought of the little girl riding on the shoulders of her own giant.
  3. I am also mindful of some disagreement between Mr Leo and Mrs Tewao about whether they would return to NZ if Mr Tewao were deported. This raises the possibility of wider dispersion of the child’s family beyond Mr Tewao’s return.
  4. While any relationship between Mr Tewao and his goddaughter is at this point purely potential, if he is returned to NZ, the potential will be lost, but for telephone and electronic communication when she is older. The relationship between
    Mr Tewao and his goddaughter anticipated by the family seems within reach, given my observations of Mr Tewao and the hopes of his family. It would be a relationship that could benefit the child, enriching her life. But the purely potential nature of this means I can give only limited weight to this consideration.

OTHER CONSIDERATIONS

  1. Of the “other” considerations listed in the Direction, family ties, hardship, links to NZ and formal advice are relevant to Mr Tewao’s circumstances. His age, health and level of education raise no significant matters for consideration.

FAMILY TIES

  1. It is clear that Mr Tewao’s significant family ties are here in Australia. His mother, father, sister, brother in law and his niece and goddaughter are all in Perth where he has been approved to report for parole. All of these family members are committed to Mr Tewao and to his rehabilitation and development. His brother, Sunny, is in NZ studying nursing and may remain there for as long as 3 years. As a student, he is not in a strong position to provide stability and support to Mr Tewao. There are also many other relatives in NZ, but they are not to Mr Tewao’s benefit and are more than likely to lead him into recidivism. There is no evidence that they are relatives to whom Mr Tewao would turn for support even if they were able or inclined to give it.

LINKS TO NEW ZEALAND

  1. Mr Tewao has extensive links to NZ but they are with relatives and a community that is likely to be harmful to him through the prevalence of alcohol, drugs and criminal activity. His links to NZ have now been overshadowed by his ties to Australia. His immediate family is here now.

HARDSHIP

  1. With the exception of his brother Sunny, Mr Tewao would be without support in NZ and would be exposed to influences that would be likely to lead to criminal activity including substance abuse and to alcohol abuse. He is reluctant to impose again on his brother. He and the rest of his family consider that Sunny needs to focus on his studies and not be burdened by the responsibility of supporting
    Mr Tewao. Because he has not been initiated into a gang he would not have to undergo the violent process of “walking the line” to extricate himself, but he would be placed in harm’s way by his community’s lifestyle and by exposure to alcohol, drug use and criminal activity. I consider this would amount to hardship.
  2. The hardship to Mr Tewao’s family in Australia would be substantial.
    Mrs Tewao’s evidence to the Tribunal was that of a mother who cares deeply for her son, has had to face some hard facts about the life he has led in spite of her efforts and who fervently embraces the hope of a second chance. She will clearly be devastated if he were to be returned to NZ. Mr Tewao’s father and sister are both eager to welcome Mr Tewao back to the care and support of his family. Each of them is ready to put substantial effort into supporting and helping him. The family is intent on being together in Australia, with all of the children living here, including eventually Sunny. No family members depend on Mr Tewao for financial or other support, but he is important to them and their disappointment and concern for
    Mr Tewao if he were to be returned would be a significant hardship for them.

FORMAL ADVICE IN THE PAST

  1. Mr Tewao received no formal advice about the conduct that brought him within the deportation provisions of the Act. He expressed his surprise that, given Gallipoli and the ANZACS and associated history, he could in fact be deported.
  2. He is now keenly aware of his position and his vulnerability to deportation.

BALANCE OF CONSIDERATIONS

  1. For the reasons outlined above, I find there is a low risk to the protection of the Australian community were Mr Tewao to remain in Australia. The anomalous nature of his serious crime, his remorse, his personal resources and natural peacefulness, his family support and his prospects for rehabilitation from drug and alcohol abuse lead me firmly to that conclusion. I find that it would likely be in the best interests of his goddaughter were he to stay, although I accept that their relationship is a potential one and she would experience no actual loss were he to be deported; she would not miss what she does not yet have. I find that Mr Tewao’s ties to Australia are not accurately reflected by the length of time he was resident here before he first offended and that the presence now of most members of his immediate family means that his ties to Australia are strong.
  2. I find that Mr Tewao and his family would suffer significant hardship if he were to return to NZ and that his links to NZ, while extensive, would not be to his benefit. Finally, I find that Mr Tewao was not formally advised of and did not understand what was at stake when he committed his serious crime. I consider that Mr Tewao does not pose an unacceptable risk to the Australian community and that the low risk he poses is outweighed by the remaining considerations. On balance, the weight of considerations falls against the cancellation of Mr Tewao’s visa.

DECISION

  1. The Tribunal sets aside the decision under review and decides instead that
    Mr Tewao’s visa should not be cancelled.

I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member


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

Associate


Date of Hearing 6 May 2011

Date of Decision 18 May 2011

Counsel for the Applicant Ms Sarah Mahmud

Solicitor for the Applicant Ms Lyn Payne, LegalAid Commission of NSW

Solicitor for the Respondent Mr Grant Hooper, DLA Piper

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