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Taniwha and Minister for Immigration and Citizenship [2011] AATA 51 (3 February 2011)

Last Updated: 28 March 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 51

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/5069

GENERAL ADMINISTRATIVE DIVISION
)

Re
TAIKI TANIWHA

Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal
Ms N Isenberg, Senior Member

Date 3 February 2011

Place Sydney

Decision
The Tribunal sets aside the decision under review and in substitution decides to exercise its discretion not to cancel the applicant’s visa.

..................[sgd]............................
Ms N Isenberg

Senior Member

CATCHWORDS

IMMIGRATION – visa cancellation - character test - substantial criminal record - whether Tribunal should exercise discretion to cancel applicant's visa pursuant to s 501(2) of the Migration Act 1958 - Minister’s Direction No 41 applied - primary considerations - protection of the Australian community - risk that conduct may be repeated - evidence of rehabilitation – best interests of children - other considerations - family ties and nature and extent of any relationship with the Australian community - decision under review set aside .


Migration Act 1958 (Cth) ss 499, 500, 501

Domestic and Family Violence Protection Act 1989 (Qld)

Re Carmichael and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1024 at para 50

Goldie v Minister for Immigration and Multicultural Affairs [2001] FCA 1318; (2001) 111 FCR 378

Re Msumba and Department of Immigration and Multicultural and Affairs [2000] AATA 87 at para 5

Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 212; (1981) 39 ALR 649 at 653

Tui and Minister for Immigration and Citizenship [2010] AATA 689

Minister for Immigration, Local Government and Ethnic Affairs v Batey [1993] FCA 75; (1993) 112 ALR 198

Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81

Rosson and Minister for Immigration and Citizenship [2010] AATA 880 at [95].

Oliver and Minister for Immigration and Citizenship [2010] AATA 1049

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

Hohua and Minister for Immigration and Citizenship [2001] AATA 102


REASONS FOR DECISION


3 February 2011
Senior Member N Isenberg


INTRODUCTION

  1. Mr Taiki Tanwiha is a New Zealand citizen. He arrived in Australia 4 May 2008 when he was 39. Since 4 May 2008, he has held a Class TY Subclass 444 Special Category (Temporary) visa by virtue of which, he is allowed to remain in Australia, subject to the provisions of the Migration Act 1958 (the Act).
  2. In July 2010 Mr Taniwha was convicted of three counts of breach of domestic violence order and sentenced to imprisonment for a term of 12 months. On 9 November 2010, the Minister for Immigration and Citizenship (the Minister) cancelled his visa on the ground that he did not pass the character test in s 501 of the Act. Mr Taniwha seeks review of that decision.

RELEVANT LEGISLATION & POLICY

  1. By s 501 (2) of the Act, the Minister may cancel a person’s visa if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that she or he passes the character test.
  1. A person is taken not to pass the character test if she or he has a substantial criminal record: ss 501(6). A person has a substantial criminal record if she or he has been sentenced to a term of 12 months imprisonment or more, or has been sentenced to two or more terms of imprisonment totalling two years or more: ss 501(7). It is common ground that Mr Taniwha does not pass the character test.
  2. The discretion in ss 501(2) must be exercised in accordance with Direction [No. 41] - Visa refusal and cancellation (the Direction), made by the Minister on 3 June 2009. The Direction is made pursuant to s 499 of the Act and is binding on the Tribunal: ss 499(1) and (2a). It requires that due consideration be given to the objective of the Act to regulate, in the national interest, the coming into and presence in Australia of non-citizens and, in this regard, to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious misconduct by non-citizens: clauses 5.1(2) and 10.1.
  3. By way of general guidance, the Direction requires a decision-maker to consider the nature of any harm the person may cause to the Australian community and the risk of that harm occurring. A wide range of factors must be taken into account, including whether the person began living in Australia as a minor, the length of time she or he has been ordinarily resident in Australia and any relevant international obligations: clause 5.2.
  4. To the extent that they are relevant to the particular case, a decision-maker must take into account four primary considerations and seven other considerations.
  5. The primary considerations are set out in clause 10(1) of the Direction:
  6. The other considerations are set out in clause 11. They must be taken into account where relevant but, generally, should be given less weight than the primary considerations: clause 11(2). The other considerations relevant in this case are:

...

(a) any links to the country to which they would be removed. For example, where the person has no familial ties or support in that country, this may be considered in the person’s favour;
(b) hardship likely to be experienced by the person or their immediate family members lawfully resident in Australia:

...

(g) whether the person has been formally advised in the past by an officer of the Department of Immigration and Citizenship about conduct that brought the person within the deportation provisions of the Act or the character provision of the Act.

THE ISSUE

  1. The issue in this case is whether the Tribunal should cancel Mr Taniwha’s visa. Mr Taniwha does not dispute that he has committed serious offences in Australia. However, his submission is that the risk of him re-offending is now reduced by virtue of his involvement in a rehabilitation program, and that it is in the interests of his children that he remains in Australia.

CONDUCT OF THE HEARING

  1. Mr Taniwha was assisted in the preparation of his case by a Legal Aid lawyer, but he appeared at the hearing unrepresented. The solicitor had arranged for statements from Mr Taniwha, his four children, including the minors A and H, his brother-in-law Mr P Castle, and his mother-in-law, Mrs J Castle. These were filed and served in accordance with directions by Tribunal and s 500(6J) of the Act. The solicitor also arranged for Ms K Watson, clinical psychologist, to provide a report in respect of Mr Taniwha and this also was properly filed and served.
  2. At the hearing, Mr Taniwha gave evidence, as did his four children, including the minors A and H, Mr Castle and Mrs J Castle (by telephone from New Zealand). Ms Watson was required for cross-examination and her telephone appearance was arranged by the Applicant’s solicitor, but she did not answer calls notwithstanding repeated attempts to contact her, including several attempts out of hours. I must take into account that the Respondent did not have the opportunity to cross-examine her when I am attaching weight to her evidence. When it became apparent that Ms Watson was unavailable for cross-examination, I invited the Respondent’s solicitor to further cross-examine Mr Taniwha in order to clarify any queries about Ms Watson’s report, but he declined to do so.
  3. At the outset of the hearing the solicitor for the Respondent submitted, to the effect, that the Tribunal is precluded from hearing evidence outside the statements provided in support of the Applicant’s case, other than what may be raised in cross-examination. He invited my attention to s 500(6H):
If:
(a) an application is made to the Tribunal for a review of a decision under section 501; and
(b) the decision relates to a person in the migration zone;
the Tribunal must not have regard to any information presented orally in support of the person’s case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review.
  1. The requirement in s 500(6H) that “the information” be “set out in a written statement” cannot be met by supplying a list of topics about which the Applicant or a witness for the Applicant is expected to testify. It refers to a person’s knowledge about facts or about a particular subject matter presented in support of an Applicant's case, the statements which were filed were in fact reasonably detailed: Re Carmichael and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1024 at para 50.
  2. The Full Federal Court made it clear in Goldie v Minister for Immigration and Multicultural Affairs [2001] FCA 1318 that the purpose of ss 500(6H) was to give the Minister an opportunity to answer the case being put by an Applicant. The two-day rule does not, however, prevent an Applicant in examination-in-chief from explaining or amplifying material in the written statement, and that information can be tested by cross-examination. Information elicited in that way can be used to support the Applicant’s case: Re Msumba and Department of Immigration and Multicultural and Affairs [2000] AATA 87 at para 5.

BACKGROUND

  1. Mr Taniwha is aged 42. He has five sisters and four brothers. He was married for 19 or 20 years and is presently separated from his wife. Mr Taniwha has three children from his marriage aged 19, 17 and 12. At the time of his marriage, Mrs Taniwha had a three year old son (James), now aged 24, from a previous relationship and who was raised with Mr Taniwha’s children.
  2. Mr Taniwha began working at 16 years of age when he undertook an apprenticeship in carpentry. He is also an experienced scaffolder, having worked continuously in that endeavour for 13 years. In New Zealand, he supervised scaffolding staff, but the pay was significantly less than what was available in Australia as a scaffolder. He came to Australia in 2008, and once settled, his family then followed.
  3. Mr Taniwha had a period of unemployment in late 2008, due to a reduction in construction work, and he had to take on casual, unskilled jobs to support his family. He again became unemployed in early 2010. He was not eligible for unemployment benefits. According to the psychologist, Ms Watson, he developed a "depressed mood state, increase[ed] alcohol abuse and [there was] progressive discord within his marital relationship". Mr Taniwha subsequently committed, between January and July 2010, five breaches of domestic violence orders, leading to his imprisonment.
  4. Mr Taniwha was due for release from Woodford Correctional Centre, Queensland on parole on 21 November 2010, and was transferred to Villawood.

PRIMARY CONSIDERATIONS
(A) PROTECTION OF THE AUSTRALIAN COMMUNITY FROM SERIOUS CRIMINAL OR OTHER

HARMFUL CONDUCT, PARTICULARLY CRIMES INVOLVING VIOLENCE

  1. Factors relevant to assessing the degree of risk to the Australian community of Mr Taniwha’s continued stay include the seriousness and nature of his conduct and the risk that it may be repeated. Violent crimes are of special concern: clause 10.1.1(2).

(i) The nature and seriousness of Mr Taniwha’s conduct

  1. Mr Taniwha does not have a long history in Australia of serious and violent offences, with the matters giving rise to his incarceration occurring over a relatively short period:
  1. Paragraph 10.1.1(1)of the Direction provides that:
"Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community. Those crimes involving violence, particularly against vulnerable persons (such as minors, the elderly and disabled), are especially abhorrent to the whole community."
  1. All of Mr Taniwha's convictions involve violence or the threat of violence, being convictions for breach of domestic violence orders. At least four of the convictions relate to actual violence; on at least two occasions his wife was pregnant and, on at least one occasion, Mr Taniwha's son H (then aged 11) was present [Gl, Att I, p69 - 70].
  2. Paragraph 10.1.1(2) of the Direction provides that "grievous bodily harm, reckless injury, assault and aggravated assault (including abduction)" are examples of offences that are considered serious. All of Mr Taniwha's recorded convictions for breach of order relate to assaults against his wife.
  3. Paragraph 10.1.1(3) of the Direction provides that the sentence imposed for an offence is considered indicative of the seriousness of the conduct against the community. Mr Taniwha has been sentenced to four terms of imprisonment, being three sentences of 12 months and an earlier sentence of two months, served concurrently. The Minister contended that these are substantial terms of imprisonment that reflect the seriousness of Mr Taniwha's criminal conduct.
  4. Domestic violence is, in general terms, a serious, and unfortunately, prevalent offence in the Australian community. Having said that, I observe that each of Mr Taniwha’s offences attracted a sentence of 12 months, that is, the minimum such that Mr Taniwha is regarded as having a ‘substantial criminal record’.
  5. Paragraph 10.1.1(3) also provides that due regard must be given to the extent of the person's criminal record, including the number and nature of offences, the period between offences, and the time elapsed since the most recent offence. Mr Taniwha's offending took place between January and July 2010. On 12 July 2010, his wife, who was three months pregnant, was cooking dinner when Mr Taniwha picked her up under the arms and threw her across the kitchen, injuring her elbows and knees. On 15 July 2010, Mr Taniwha accused his wife of turning their son H (then aged 11) into a "pussy little C” and punched her between the eyes causing bleeding from her nose. On 20 July 2010, Mr Taniwha accused his wife, who had recently miscarried her pregnancy, of causing the miscarriage by smoking and drinking, and pushed her to the ground and head-butted her [G1, Att I, p69 - 70]. In sentencing Mr Taniwha to 12 months imprisonment for each offence, Magistrate Quinn stated:

"You have been given opportunities. The violence is continuing. I note your realisation of your position and the seriousness of the position as submitted to the Court by Ms Brandt, As I have said to you previously and I say again now, there is a significant protection of the public, in particular the protection of the aggrieved involved in these proceedings and, in my view, a deterrent penalty needs to be imposed, not only general deterrence but more importantly in your case a personal deterrence." [Gl; Att I, p76]

  1. Magistrate Quinn found that the offending was:

"...made worse... because at least two of the occasions involved a period when your wife was pregnant and on one further occasion it was - the violence was used in front of and in the presence of a vulnerable and impressionable 11 year old son ", [Gl, Attl,p76].


  1. Magistrate Quinn noted that the earlier conviction of 5 May 2010 also involved Mr Taniwha head-butting his wife [G1, Att I, p75].
  2. The Minister submitted that the Tribunal should give Magistrate Quinn's remarks substantial weight when assessing the seriousness of Mr Taniwha's conduct.
  3. The Summons Documents contain a number of applications for protection orders, one application dated 6 June 2009 [Summons Documents pg25-132] refers to an incident on 6 June 2009 in which Mr Taniwha’s wife telephoned 000 from a phone box and alleged she had been sexually assaulted by Mr Taniwha after refusing to have sex with him in a vacant lot at the rear of their home. The application states that:

"The aggrieved states that there has been a long history of violence, between the pair over the past 18 years of their marriage.

Violence occurs at the home in the presence of the children of both parties. Over the past three weeks there have been a number of verbal arguments which have escalated, to events of physical violence. On three separate occasions the Resp has assaulted the Agg causing bruising to her ribs, collar bone and a swollen lip. The increasing incidences of violence relate to the frustrations by the Resp as the result of him being out of work for some time. The Resp is a heavy drinker who drinks on a daily basis. The Resp has admitted to Police that he has been violent towards the Agg." [Summons Documents pi29]

  1. In considering the seriousness and the nature of Mr Taniwha's conduct, the Tribunal is required to take into account any mitigating factors that Mr Taniwha puts forward (see paragraph I0.1.1(4)(b) of the Direction).
  2. As the Full Court explained in Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 212; (1981) 39 ALR 649 at 653:
There are powerful reasons of public policy why the Tribunal cannot ignore the conviction or seek to set it at nought. That is not to say that the circumstances surrounding the commission of the offence or matters relating to the trial itself cannot be examined by the Tribunal. However, such examination is for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the applicant's criminal conduct and not for the purpose of assessing the propriety of the conviction or the fairness of the trial.
  1. In relation to the offence committed 3 April 2010, Wesley Williams, a Goondir Health Services worker, stated that Mr Taniwha’s wife had told him that the first incidence of violence was in June 2009 and that in his opinion that Mr Taniwha was disturbed by losing his role as the "main breadwinner", and that Mr Taniwha "has a strong patriarchal view of life and appears to have experiences a loss of status and identity with this role reversal" [Summons Documents p39].
  2. In relation to the convictions of 21 July 2010, Magistrate Quinn noted that Mr Taniwha's guilty pleas showed remorse and co-operation [Gl, Att I, p75]. Mr Taniwha's representative had submitted that Mr Taniwha had recently lost his job, was suffering from depression and had been drinking excessively [Gl, Att I, p72].
  3. Mr Taniwha gave evidence that over the course of his long marriage, he and his wife had had a good relationship. He believed his recent problem was the consequence of not seeking treatment for depression. He had been depressed for many months because he had been laid off due to his contract finishing, and he was unable to find other work.
  4. Ms Watson took a history that prior to 2008, Mr Taniwha reported that he consumed alcohol primarily on a recreational and social basis. However, with his employment instability and the development of a depressed mood state, his alcohol use rapidly progressed to daily alcohol abuse and intoxication. She considered his alcohol abuse to correlate with the 'self-medication’ model, whereby he attempted to ‘numb the emotional disarray that was determined by his employment instability’. However, she observed, alcohol abuse typically serves to exacerbate the psychological disturbance.
  5. Ms Watson considered Mr Taniwha to have identified that he relied on alcohol as a strategy to reduce his elevated stress states and depressed mood. However, his increasing reliance on alcohol served to contribute to his depressed mood state. He attributed the development of his depressed mood state to "feeling inadequate and hopeless when [he] couldn't find work and support [his] family". He stated that "to not be the major breadwinner for [his] family was a shock to [his] system that [he] didn't cope with".
  6. She observed that the combined effects of alcohol abuse and depression typically lead to errors in judgment, and impulsive and self destructive behavior tendencies.
  7. Mr Castle and Mrs Castle gave evidence which I found particularly persuasive, especially in view of their relationship to the victim of Mr Taniwha’s domestic violence.
  8. Mr Castle, the brother of Mr Taniwha’s wife, said that in the twenty years he has known Mr Taniwha, he had never before seen him lose his temper or be aggressive. He thought Mr Taniwha had been ‘worn down’ by his wife’s behaviour. He wrote that his sister has had a drinking problem for about 20 years. There was no objection to Mr Castle’s statement that H had told him that his mother had also "bashed" her husband. He, Mr Castle, did not know how long his sister had been physically abusive but, she had always been verbally abusive. His sister did not tell him or other members of the family, including the children, about Mr Taniwha going to court. He considered Mr Taniwha to be a very caring person with his children.
  9. Mrs Castle, Mr Taniwha’s mother-in-law, also has known Mr Taniwha for over 20 years, and considers him to be gentle and caring. She found it hard to believe that he had acted violently against her daughter, as she had never heard him raise his voice to his wife or children.
  10. The adult children, Natalie and James, also gave persuasive evidence about the Taniwha household.
  11. Natalie, now aged 19, wrote in her statement that although both her parents drink, her mother has a ‘big problem’. She knew her mother considered that her husband wasn't pulling his weight because he didn't have a job, notwithstanding that she herself also was unemployed.
  12. In his statement James wrote that he considered both his parents to be ‘at fault’. He wrote of his mother’s unprovoked violence towards his father, especially if she was drunk.
  13. A wrote of her recollection was that, before they left New Zealand, both her parents would drink a lot. However, alcohol did not interfere with family life and they were good parents and there were only occasional arguments. After they moved to Australia, she noticed no problems other than that her parents drank more and there were people in the house. There were always verbal arguments – her mother ‘knew the triggers to press’. Other than when her parents were drinking, they got on "like a house on fire". However her father’s job entailed long hours, and was not particularly well-paying and he had to walk many miles. There were problems also with racist remarks. Her mother was supportive, but she drank more than before, and that would lead to arguments about Mr Taniwha’s lack of work and there being not enough money. Her father got depressed because his pride was hurt; and he started to lose his temper.
  14. Domestic violence is inexcusable, however there was evidence before me that suggested that Mr Taniwha may have experienced some frustration leading up to the Mr Taniwha’s alcohol-fuelled assaults upon his wife. I have considered the mitigating factors of Mr Taniwha's alcohol problems, and the difficulties adjusting to unemployment which led to his depressed mood state, as well as the guilty plea referred to by the Magistrate. Mr Taniwha's criminal conduct however remains serious.

(ii) The risk that the conduct may be repeated

  1. Paragraph 10.1.2(1) of the Direction states that a person's previous general conduct and total criminal history are highly relevant to assessing the risk of re-offending. Clause 10.1.2(2) of the Direction provides that factors particularly relevant to assessing risk are:

Criminal history and recent convictions

  1. Apart from two drink-driving convictions in New Zealand, this was Mr Taniwha’s first serious offence. He had several breaches of a domestic violence order but had never done anything serious like his recent behaviour, previously.
  2. His most recent convictions were recorded on 21 July 2010 in relation to offences committed on 12, 15 and 20 July 2010, although the summons documents contain applications for domestic violence orders dating back to 6 June 2009, and containing allegations of earlier incidents of violence [Summons Documents pl29].
  3. Mr Taniwha’s wife’s most recent application for a domestic violence order dated 5 November 2010 [Summons Documents, p76 80] requested an extension for a further two years from June 2011 to "ensure my and my son's safety", and alleging that "the last thing [Mr Taniwha] said to me when he was arrested was when he gets out he will kill me". Mr Taniwha denies that this conversation occurred.
  4. The Minister contended that Mr Taniwha's criminal history and general conduct strongly suggest a high risk that Mr Taniwha will re-offend and commit violent acts, particularly against his wife.
  5. The evidence however was that Mr Taniwha’s wife has ‘moved on’ and, since at least October 2010, while Mr Taniwha was still in gaol, has a new partner. Mr Taniwha said, and I accept, that he wishes her well. His wife and her new partner live in Dalby, whereas the evidence was that Mr Taniwha intends to live and work in Brisbane. They may, because of their children, continue to have some contact, but the circumstances whereby Mr Taniwha was criticised about his unemployment by his wife are unlikely to occur again. He will not be living with her or in the same town; he will not be under any obligation to support her; he will have a job, and, hopefully, will have no need to resort to excessive use of alcohol.

Evidence of rehabilitation

  1. At the time of sentencing in July 2010, Mr Taniwha was a heavy drinker and attributed his offending to alcohol, losing his job and depression [Gl, Att I, p72]. Magistrate Quinn noted that it would be of great assistance to Mr Taniwha if, in prison or on parole, he completed anger management and alcohol abuse courses. Magistrate Quinn stated:
"I am going to sentence you to a term of imprisonment which, however, wilt involve a setting of a parole release date and thereafter you will be under the supervision and direction of Probation and Parole for the balance of that penalty. I intend to make that period a reasonably lengthy period because it is obvious, sir, that you need great assistance, you need supervision and you need treatment for alcohol abuse and for temper control, anger management, and that being able to be forced upon you, as it were, by parole authorities, in my view, would be in the interests of the community", [G1, Att I, p77].
  1. The Minister contended Mr Taniwha's problems with alcohol and anger management increase the likelihood that he will continue to offend, and that the Tribunal cannot be satisfied that Mr Taniwha has addressed these problems.
  2. Mr Taniwha said he was trying to get anger and alcohol counselling, however, there is nothing at Villawood but an Alcoholics Anonymous (AA) course, in which he has been participating for five weeks. While in gaol at Woodford Correctional Centre, he said, he wasn't really aware of such courses and he was offered no help. He had too much on his mind as it was his first time in gaol. He was not really sure if courses were in fact available, especially as he was only in gaol for a relatively short period.
  3. Ms Watson reported that Mr Taniwha exhibited signs of elevated stress throughout the clinical assessment. He repeatedly expressed regret and remorse in regards to the incidents of domestic violence, and the subsequent impact that his actions and incarceration has had on each of his children, particularly his youngest son. Mr Taniwha identified that he requires intensive and ongoing treatment, and that he would benefit from individual counselling to gain personal insight and "try to understand [himself] more and help [him] cope with stress".
  4. Ms Watson wrote that being imprisoned has forced Mr Taniwha to confront the personal and legal implications of his actions, and his need to address and change his behavior. Ms Watson noted that extensive research on co-morbid alcoholism and depression suggests that relapses and remissions in each disorder affect the other, and therefore an intensive and integrated management approach is required. He had expressed willingness and commitment to undertake individual counselling, and continue to participate in community based support programs such as AA. She observed that he is currently attending regular AA meetings. Research indicates that participation in support groups and treatment programs such as AA leads to significant reductions in alcohol abuse and antisocial behavior.
  5. Accordingly, she considered that Mr Taniwha's offending behavior can be ascribed to his depressed mood state and alcohol abuse, and is evidently uncharacteristic and in stark contrast to the calm and peaceful man known to and loved by his children and in-laws. She considered the risk of recidivism to be low.
  6. In the context of offenders whose offending is linked to substance abuse, the Minister notes that Tribunal's decision in Tui and Minister for Immigration and Citizenship [2010] AATA 689 in which the Tribunal stated;

"That Mr Tui has a significant criminal history does not, of course, mean that he necessarily poses a risk to the Australian community. The expert evidence is that if he can stop alcohol use, his risk of re-offending is low. While possible that Mr Tui might be able to beat his alcohol addiction, it is equally possible that he will fail. As such, my opinion is that there is a real risk of continued violent conduct and harm to others if he were remain in Australia. I am of the opinion that the protection of the Australian community strongly outweighs those factors which favour Mr Tui retaining his visa." [para 89].

  1. As in Tui, the psychologist’s evidence is that if Mr Taniwha can stop alcohol use, his risk of re-offending is low. Also, while it is possible that Mr Taniwha might be able to beat his reliance upon alcohol in times of stress, it is also possible that he will fail. However, in Mr Taniwha’s case, the circumstances which gave rise to his excessive drinking, namely his unemployment such that he had failed in his role as the family’s breadwinner, are unlikely to be repeated. He has a job to go to, and it would seem, in any event, that as a scaffolder in Brisbane, given the recent extensive flood damage, he is likely to be in employment for some time. He has also seen that his close relationship with his children is in jeopardy. There is, it would seem, cause for optimism.

Breaches of obligations

  1. Each of Mr Taniwha's convictions relates to a breach of his obligations to the court, being a domestic violence order. The Minister contended that Mr Taniwha's history of breaching court-imposed obligations strongly suggests that Mr Taniwha does not take such obligations seriously, and that his behaviour and actions are not constrained by court-imposed obligations. The Minister contends that Mr Taniwha's repeated breaches of the law and court imposed obligations indicate that there is a high risk that he will again engage in conduct in breach of the law.
  2. In relation to the first primary consideration, the Respondent referred to Minister for Immigration, Local Government and Ethnic Affairs v Batey [1993] FCA 75; (1993) 112 ALR 198, held that a real risk of re-offending is one which is not far fetched or fanciful and can include a low or minimal risk. The Tribunal found in Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81 that "even if the risk of recidivism is not high, the risk will strongly support deportation [or visa cancellation] when recidivism, if it does occur, may cause great harm".
  3. The Minister contended that, taking into account Mr Taniwha's previous conduct and repeated and recent criminal behaviour, there is a real risk that he will re-offend, and that he presents a real risk of harm to the Australian community. I agree that there is some risk that Mr Taniwha may re-offend. However, as I have observed, on release his current circumstances will be different from those circumstances in which the offences were committed: the violence was directed solely towards his wife, with whom he is no longer in a relationship, and he will not even be living in the same town as her. Having regard to Mr Taniwha’s minimal prior criminal record, the circumstances in which the crimes were committed, the steps Mr Taniwha has taken towards his rehabilitation, and the attitudes he expressed towards domestic violence and in relation to his remorse, all of which I found credible, I formed the view that in the light of the support he is likely to receive while on parole and from his family, there is little risk of his re-offending. .

(B) WHETHER MR TANIWHA WAS A MINOR WHEN BEGAN LIVING IN AUSTRALIA

  1. Paragraph 10.2 provides that:

"(I) If the person was a minor when they began living in Australia and spent their formative years in Australia, thereby increasing the likelihood of establishment of greater ties and linkages to the Australian community, this is to be given favourable consideration.

(2) Less weight should be given if the person began living in Australia as a minor but was close to attaining adulthood at that time"

  1. Mr Taniwha was aged 39 when he first arrived in Australia. I was referred to Oliver and Minister for Immigration and Citizenship [2010] AATA 1049, where, in relation to an applicant who arrived aged 21, the Tribunal considered that this weighed in favour of cancelling the applicant's visa. [57]. I prefer the approach that because Mr Taniwha was not a minor when he began living in Australia, his circumstances do not attract favourable consideration.

(C) THE LENGTH OF TIME THAT THE PERSON HAS BEEN ORDINARILY RESIDENT IN
AUSTRALIA PRIOR TO ENGAGING IN CRIMINAL ACTIVITY OR OTHER RELEVANT

CONDUCT

  1. Paragraph 10.3(1) of the Direction provides that:

"Reflecting the fact that the longer a period of residence in Australia the greater the likelihood of significant ties to the Australian community, more favourable consideration is to be given the .longer the person has been ordinarily resident in Australia prior to engaging in criminal conduct or activity that bears negatively on their character.

Note: For example, a period of more than 10 years residence in Australia prior to a person engaging in criminal activity or activity which bears negatively on the person's character would be an important consideration."

  1. Mr Taniwha has resided in Australia since 4 May 2008, a period of less than three years. Mr Taniwha's first offence for which he was found guilty was committed on 26 January 2010 [Summons Documents p23], less than two years after arriving in Australia.
  2. The Minister contended, and I agree, that this consideration weighs in favour of cancelling Mr Taniwha's visa: Oliver and Minister for Immigration and Citizenship [2010] AATA 1049 at [59], Rosson and Minister for Immigration and Citizenship [2010] AATA 880 at [95].

(D) ANY RELEVANT INTERNATIONAL LAW OBLIGATIONS INCLUDING BUT NOT LIMITED TO, THE BEST INTERESTS OF THE CHILD, AS DESCRIBED IN THE CONVENTION ON THE RIGHTS OF THE CHILD

  1. Reflecting Australia’s obligations under CROC, if there is a child in Australia who is potentially affected by the decision, the decision-maker must have regard to best interests of the child: cl 10.4. Factors going to the best interests of the child include:
(a) the nature of the relationship between the child and the person;
(b) the duration of the relationship including the length and reasons for any separation;
(c) the extent to which person likely to play full parental role up to child’s eighteenth birthday;
(d) the child’s age;
(e) the likely effect on the child of any separation;
(f) any known wishes of the child;
(g) the existence of other person who already fulfil a parental role;
(h) any negative or positive impact of the person’s conduct.
  1. Mr Taniwha’s children, A and H are now 17 and 12 respectively. The Minister contended that Mr Taniwha could maintain other forms of communication, such as by letters, email or telephone from New Zealand, with both children.
  2. Mr Taniwha indicated to Magistrate Quinn that, at that time, he considered it was in his children's best interests that he not have contact with them until he "gets himself back together”. [Gl, Att I, p72].
  3. Woodford Correctional Centre was several hours’ drive from Mr Taniwha’s family and he did not see his children while there. [Gl, Att F, p61]. He was unable to work in prison, which meant he had little money and was unable to contact his family. He said he is close to all his children and this is the longest period he has been away from them. Since being at Villawood he phones all his children, speaking to each of them for about 10 minutes. He telephones the two youngest, A and H, twice daily.
  4. Ms Watson reported that Mr Taniwha stated that he had spoken to all of his children about his violence towards their mother during their telephone conversations. He has acknowledged his responsibility for his actions, the wrongness of his actions, and apologised for the distress it has caused to them all. She also reported that Mr Taniwha's primary concern regarding his possible deportation was the impact that it will have on his children, and he identified his priority as "rebuilding [his] family".
  5. Mr Taniwha is subject to a domestic violence order, sought by his wife, not to approach, to enter the premises of, or go within 100 metres of H. The order is in force until 20 July 2012. Mr Taniwha gave evidence that that he intends to return to court to have the domestic violence order lifted, so that he may resume his parenting role. [Gl, Att F, p66]. There was no evidence whatever of any violence towards his children.
  6. Mrs Castle stated she had not ever seen him physically chastise any of his children. She wrote of his children’s great love for him as well as respect. She said in her evidence that up until about five years ago her daughter had been ‘a good Mum’, but has ‘lost her way’.
  7. Mr Castle wrote that the children would come to his home in Brisbane to get away from their mother, because of her alcohol problem, which, he said, made her unpredictable. Currently, Natalie and H live with him because they do not want to live with their mother. In October 2010 Mr Castle’s sister had telephoned him complaining she was unable to handle H and could he take him ‘till Christmas’, but she has taken no steps towards his return, and H does not want to return to his mother.
  8. He also reported in his statement that James and A had recently told him that their mother had said, when she was drunk, that she was going to kill herself. Mr Castle had also recently had a telephone conversation with his sister, who said she planned to take H back to New Zealand and that "his father would never see him again".
  9. Mr Castle said in his evidence that ‘all the Castle family supports Mr Taniwha’, and that he has ‘been like a brother to the family’. If Mr Taniwha is allowed to stay in Australia Mr Castle said he would live with him, and H would go to Mr Castle’s brother’s, and not to his mother’s, until the DVO in respect of H was ‘sorted out’.
  10. Natalie said she moved from Dalby to Brisbane in January 2010 because she had an opportunity for employment and because she knew her parents’ drinking would continue to be a problem. On a couple of occasions she visited them and they were arguing. After she moved, she would not hear from her parents for weeks at a time. When her mother did telephone, she would be drunk and abusive, not only to Natalie but to all the children. Nowadays she prefers not to speak with her so as to avoid arguments.
  11. When her father went to gaol her mother told her he was in "rehab”. She said her elder brother James became H and A’s de facto father. She understood James to currently be supporting not only himself but his mother and her new partner. Natalie and her uncle are supporting H, with her mother making no contribution at all.
  12. She wrote that all the children talk to their father twice a day and hope he can join them when he is released. She wrote of their love for him and that they miss him. She said her brother, H, cried when they were discussing what would happen if their father was sent back to New Zealand, noting that he is very close to their father. She thought her father’s absence would adversely affect H's schooling and, in fact, all aspects of his life. She recalled how H and her father would go to the football together, mow the lawns and generally "hang out" together.
  13. James said he wants his father back. After their father was gaoled, H became very reliant upon him. He also considered that what has occurred has affected H's behaviour: he was angry and constantly missing his father. H was misbehaving at school and his mother sent him away to Brisbane. H has settled down somewhat since living with Natalie and their uncle in Brisbane. He also considered A to also be much affected by her parents' problems and behaviour. Their father would protect her from her mother. Their mother has made is clear that now she ‘doesn't want to be a mother anymore’. James himself plans to leave his mother’s home as soon as possible and move to Brisbane with his siblings.
  14. Both A and H, the (minor) children had provided a statement and gave evidence, which was largely unchallenged.
  15. H presently lives in Brisbane with Mr Taniwha’s brother-in-law (Mr Castle) and Mr Castle’s wife, and his elder sister Natalie. He confirmed that since his father has been in detention they speak on the telephone each morning and again at night.
  16. He said that he saw two episodes of violence between his parents: once when his father pushed his mother and when his mother, who was intoxicated, punched his father and hit him with some object.
  17. He wrote that his mother drank heavily in New Zealand but increased when they came to Australia. She would be violent and abusive. He said his father also started drinking more in Australia.
  18. His mother would leave H by himself when she went out drinking – about four or five times a week. She has spat at him on a number of occasions. He last saw her at the end of October 2010, although there is occasional telephone contact. About a month ago his mother said that she was going to take him back to New Zealand, permanently.
  19. H said he hoped that if his father came home they would all – excluding his mother - live together, close to their aunt and uncle. His mother has a new partner who drinks a lot and swears at him.
  20. A wrote in her statement that when her father was doing night shift at a meatworks, her mother would go out and H would come to her, A, at her after-school workplace because he said he didn't feel safe at home alone. She thought H really needs his father at this stage of his life. Instead, he has had to look to James and A, and A did not think they are adequate replacements for his father.
  21. A is 17, turning 18 in November 2011. In her statement she wrote that she had always been very close to her father, as had all the children. He would be a volunteer at school, including doing school maintenance, and at sport activities. A lot of people ‘look up to him’.
  22. At the time of her father’s imprisonment A and her mother were fighting constantly, and her mother would tell all her friends and relatives that A was ‘some sort of problem’. Her mother knew A was close to her father, but she would still criticise him, while at the same time say that it was good that she loved her father. From about September/October 2009, A and her mother argued more, especially when her mother had been drinking. Her mother became more critical of her and her sister Natalie as each one turned 16.
  23. A wrote that she and James still live in the same house as their mother, who now has a boyfriend (who pays no rent). As soon as James can get a work transfer, he and A will move to Brisbane. All four children planned to lease a house that could accommodate them all, but now, as she has been accepted into university on the Sunshine Coast, she will live on campus there.
  24. She wrote in her statement that her father is too much an important factor in her life for her to bear his absence. She considered that while he may not have been a good husband he had always been a good father and had put the children before everything.
  25. The Minister accepted that both children may feel some sadness if Mr Taniwha were to leave Australia, but submitted that it is unclear where H and A's best interests lie. H had witnessed both parents’ violence. Mr Taniwha had allegedly threatened to kill his mother on his release, although Mr Taniwha denied this.
  26. Mr Taniwha is prohibited from any face to face contact with H until 28 November 2012. Mr Taniwha, once settled in Brisbane, proposes to seek to have that order lifted. The evidence was that H seeks contact with his father, and that he feels unwelcome in his mother’s home. He is temporarily in the care of his uncle and elder sister. His siblings consider he needs his father. Even if the order were not lifted, H’s opportunity to have a greater level of contact with Mr Taniwha after 28 November 2012, would be diminished if Mr Taniwha leaves Australia.
  27. A is almost an adult and is soon to commence living independently on campus. She also is estranged from her mother, but apparently also has some support from her uncle and from her elder siblings.
  28. To the extent that this consideration may weigh in Mr Taniwha's favour in respect of A or H, the Minister contended that this consideration does not weigh heavily in Mr Taniwha's favour, given that his relationship with each child has been disrupted by imprisonment since July 2010, by Mr Taniwha's alcohol abuse, and by Mr Taniwha's violent offending against the children's mother. I observe though that Mr Taniwha was imprisoned for only a relatively short period during which he did not have contact with his children for financial reasons. Their mother did not tell them he was in gaol, but “in rehab”. It appears that the children have both been affected by their mother’s alcohol use as well as their father’s, and A is estranged from her mother. H has witnessed his mother’s violence towards his father. The Direction acknowledges that it is generally presumed, under Australian law, a child’s best interests are served by remaining with its parents. On the evidence, there is little likelihood of the children’s mother taking up the parenting role. The kind-heartedness of Mr Castle in taking H in can clearly only be regarded as a stop-gap arrangement.
  29. Overall, the Minister contended that, to the extent that this consideration may weigh in Mr Taniwha's favour, this primary consideration is outweighed by the primary consideration of the protection of the Australian community. In Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568; (2001) 107 FCR 133, the Full Federal Court [at para 32] made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or-children with respect to the exercise of the discretion and, second:

"to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration ".

  1. I consider that it is in the best interests of the children, especially H, that Mr Taniwha remain in Australia so that he can be in a position to resume the parenting role.

OTHER CONSIDERATIONS

  1. These must be taken into account if relevant, but generally should be given less weight than primary considerations: ss 11(1) (2).
  2. The relevant considerations in this case are:
(a) family ties, the nature and extent of any relationships, including extent of disruption to the person’s family, business and other ties to Australian community;
(b) links to the country to be removed to;
(c) hardship likely to be caused to the person or their immediate family including whether they can travel to visit him; nature of their relationship; whether dependent on him for support they can’t get elsewhere;
(d) whether the person has been formally advised in the past about the possibility of a s 501 decision.

Family ties, the nature and extent of any relationships; hardship likely to be experienced by the person or their immediate family members lawfully resident in Australia; and links to the country to which they would be removed


  1. Mr Taniwha left New Zealand, a country of which he is a citizen aged 39 years. In Hohua and Minister for Immigration and Citizenship [2001] AATA 102, the Tribunal found, at paragraph [16](e), that:

"A return to New Zealand would not, in the Tribunal's view, be of great hardship to people who have lived all their lives in New Zealand".

  1. Mr Taniwha has a number of siblings in New Zealand, as does his mother-in-law, Mrs Castles, with whom he is close. I accept that it is not a significant hardship for Mr Taniwha to return to New Zealand.
  2. Mr Taniwha is separated from is wife, who informed Mr Taniwha while he was in gaol, that she has a new partner, and she wishes to have no further contact with him:[Summons Documents p78]. His children, in addition to the 2 minors, would prefer he live in Australia with them and continue their close contact.

Health

  1. There is no evidence to suggest that Mr Taniwha has any health problems other than possible alcohol abuse and anger management problems, or that he requires any specialised care that would not be available in New Zealand.

Level of education

  1. Mr Taniwha has three years and eight months of high school education in New Zealand [Gl, Att G, p60], is literate and articulate. He undertook an apprenticeship in carpentry, and worked continuously, including 13 years as a scaffolder

Previous formal advice

  1. Mr Taniwha has not been formally warned in relation to his criminal conduct and the character provisions of the Act.

THE BALANCE OF CONSIDERATIONS


  1. Of the primary considerations, the protection of the Australian community weighs minimally in favour of refusal of Mr Taniwha’s visa application, whereas the best interests of his children weigh heavily against cancellation. The remainder of the primary considerations are also somewhat in favour of refusal. All other considerations, except in relation to the distress to his wider family, weigh minimally against cancellation of Mr Taniwha’s application for a visa.
  2. On balance, I consider the relatively low risk of Mr Taniwha repeating his criminal action, the other primary considerations and all other considerations are outweighed by the best interests of his children, because of the evidence of a strong family relationship with his children, especially in contrast to their relationship with their mother.

DECISION

  1. The Tribunal sets aside the decision under review and in substitution decides to exercise its discretion not to cancel the applicant’s visa.

I certify that the 111 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.


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

Diana Weston Associate


Dates of Hearing 20 and 21 January 2011

Date of Decision 3 February 2011

Applicant Self-represented

Solicitor for the Respondent Mr T Eteuati, Clayton Utz

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