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Stone and Minister for Immigration and Citizenship [2011] AATA 68 (9 February 2011)

Last Updated: 9 February 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 68


ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/5128

GENERAL ADMINISTRATIVE DIVISION )

Re Gregory James Stone

Applicant

And Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal Mr R P Handley, Deputy President

Date 9 February 2011

Place Sydney

Decision The decision under review is set aside and a decision substituted that the discretion in s 501(2) of the Migration Act 1958 should be exercised in Mr Stone’s favour so as not to cancel his visa.


..................[sgd].....................
Mr R P Handley
Deputy President

CATCHWORDS

IMMIGRATION – cancellation of visa – Direction 41 - character test – substantial criminal record – primary considerations – protection of the Australian community – seriousness and nature of the conduct – risk that the conduct may be repeated – length of time ordinarily resident in Australia prior to engaging in criminal activity – best interests of the child – nature of the relationship – whether likely to play a full parental role – likely effect separation from the person would have on the child – known wishes expressed by the child - other considerations - family ties, the nature and extent of any relationships – person’s age – person’s health – links to the country to which they would be removed – hardship likely to be experienced by the person or their immediate family members – level of education – whether the person has been formally advised in the past of conduct that brought the person within deportation provisions

RELEVANT ACTS:

Migration Act 1958 (Cth): s 501

CITATIONS

Re Puafisi and Minister for Immigration and Citizenship [2009] AATA 689

OTHER AUTHORITIES

Direction [no. 41] - Visa Refusal and Cancellation under section 501


REASONS FOR DECISION

9 February 2011
Mr R P Handley, Deputy President

  1. Mr Stone has applied to the Tribunal for the review of a decision of a delegate of the Minister for Immigration and Citizenship (the Minister) to cancel Mr Stone’s visa on the ground that he does not pass the character test.

BACKGROUND

  1. Mr Stone was born in New Zealand in February 1968 and is a New Zealand citizen. He first arrived in Australia on 7 December 2007, aged 39, and was granted a Class TY subclass 444 Special Category (Temporary) visa, which permits residence in Australia indefinitely; he has remained in Australia since then. On the incoming passenger card completed by Mr Stone on entry into Australia, he answered ‘No’ to the question “Do you have any criminal convictions?”.
  2. Mr Stone’s criminal history in New Zealand includes 42 convictions for offences committed between 1982 and 2002. Of his non-driving related convictions, eight are for offences related to theft, shoplifting or unlawfully taking a motor vehicle, 13 are related to cannabis or prescription medicine/poison, two are for common assault, three are for breach of periodic detention or parole orders, four for using a document for pecuniary advantage and one for ‘conspire to defraud’. These convictions attracted a range of penalties: a three-month and two-month prison sentence served concurrently in 1992 for common assault and breach of periodic detention, an eight-month suspended sentence for selling cannabis oil in 1999, periods of non-residential periodic detention ranging from two to eight months, probation and fines.
  3. Of Mr Stone’s 11 driving-related convictions, two convictions were for driving while unlicensed with more than the permitted blood alcohol level, one conviction was for driving while licensed with more than the permitted blood alcohol level, and four convictions were for driving while disqualified. He was sentenced to non-residential periodic detention for periods of between two and eight months for these offences and, on his second conviction for driving while disqualified within six months in 1991/1992, he was sentenced to three months’ imprisonment.
  4. Since arriving in Australia, Mr Stone has been convicted of four offences. On 19 April 2010, in Queanbeyan Local Court, he was convicted of:

Mr Stone pleaded ‘not guilty’ to the first three offences and guilty to breach of the AVO (apprehended violence order). On appeal to the Queanbeyan District Court, Mr Stone’s convictions were confirmed. He was released from prison on parole on 22 November 2010 and taken into immigration detention at Villawood.

  1. An Immigration Report, dated 30 September 2010, prepared for the Department of Immigration and Citizenship by the Probation and Parole Service, Goulburn District Office, noted that while in custody, Mr Stone has been the subject of one “institutional charge as a result of his trying to divert his methadone”.
  2. Mr Stone has four children from two previous relationships: an adult daughter who lives in the United States, a son aged 16, referred to as ‘A’, who, prior to Mr Stone’s imprisonment, Mr Stone had taken to the ACT to live with him, and two other sons, aged 14 and 13, referred to respectively as ‘B’ and ‘C’, who live with their mother in Queensland.
  3. By letter dated 11 August 2010, the Department of Immigration and Citizenship (the Department) notified Mr Stone of its intention to consider cancellation of his visa and inviting him to respond. On 6 October 2010, Mr Stone completed a ‘Personal Details Form’ which was faxed to the Department on that day.
  4. On 16 November 2010, a delegate of the Minister notified Mr Stone of the cancellation of his visa and Mr Stone acknowledged receipt of this on 23 November 2010. On 25 November 2010, he applied to the Tribunal for a review of this decision.
  5. The Tribunal was provided with the following affidavits or letters of support for Mr Stone from family members and a friend, all of whom gave evidence at the hearing either in person or by telephone:
  6. A forensic psychologist, Jenny Howell, provided a Risk Assessment Report dated 22 January 2011.

RELEVANT LAW AND POLICY

  1. Section 501(2) of the Migration Act 1958 (Cth) (the Act) provides that the Minister may cancel a visa if “the Minister reasonably suspects that the person does not pass the character test” and “the person does not satisfy the Minister that the person passes the character test”. Section 501(6) provides that a person does not pass the character test if the person has a substantial criminal record. ‘Substantial criminal record’ is defined in s 501(7) as, among other things, having been sentenced to a term of imprisonment of 12 months or more, or to two or more terms of imprisonment where the total of those terms is two years or more.
  2. On 19 April 2010, Mr Stone was sentenced to a term of imprisonment of 12 months. Thus, he does not pass the character test. It was therefore open to the Minister to cancel Mr Stone’s visa. In exercising this discretion, the decision-maker must apply Direction [no. 41] - Visa Refusal and Cancellation under section 501 of the Act (Direction No 41). Direction No 41 contains a number of ‘primary’ and ‘other’ considerations to which the decision-maker must have regard when considering whether to exercise the discretion to refuse or cancel a visa.
  3. The primary considerations in Direction No 41 are set out in paragraph 10(1):
    1. The primary considerations
      • (1) In deciding whether to refuse to grant a person a visa or cancel a person’s visa, the following (the primary considerations) are to be considered:
        • (a) the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
        • (b) whether the person was a minor when they began living in Australia;
        • (c) the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and
        • (d) relevant international obligations, including but not limited to:
          • (i) the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
          • (ii) 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).
  4. These considerations are elaborated on by a range of factors to which regard must be had. 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(2), they should be given less weight than the ‘primary’ considerations. Those ‘other’ considerations are discussed below.

PRIMARY CONSIDERATIONS

  1. The ‘primary’ considerations relevant in Mr Stone’s case are the protection of the Australian community, the length of time he has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct, and the best interests of his children under 18. These considerations are addressed below.

THE PROTECTION OF THE AUSTRALIAN COMMUNITY

  1. Direction No 41 identifies two factors relevant to this consideration: the seriousness and nature of the relevant conduct, and the risk that the conduct may be repeated.

The seriousness of the conduct

  1. With regard to the seriousness of Mr Stone’s conduct, the Tribunal notes that paragraph 10.1.1(1) states:
Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community.

Among the examples of offences and conduct that are considered serious listed in paragraph 10.1.1(2) are assault and drug-related offences. As stated above, Mr Stone has two recent convictions for assault in Australia and two earlier convictions for assault in New Zealand, dated 2 August 1982 and 23 June 1992. He also has 13 convictions related to cannabis or prescription medicine/poison in New Zealand, mostly for possession but in one instance for selling cannabis oil and in another for cultivating cannabis.

  1. Paragraph 10.1.1(3) states that “The sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community”, and regard must be had to the number and nature of offences, the period between offences and the time elapsed since the most recent offence. Among the factors to be considered pursuant to paragraph 10.1.1(4) are any judicial comments made about the person, parole assessments and any relevant mitigating factors.
  2. The Tribunal notes that Mr Stone’s Australian convictions are recent, in respect of offences committed about a year ago. However, it should also be recognised, as Ms Rao, who represented Mr Stone, pointed out, that most of Mr Stone’s convictions in New Zealand, except three convictions involving possession of cannabis and selling cannabis oil, date from before his eldest son A was born in 1994 and Mr Stone was aged 27 or younger. Ms Rao also referred to Mr Stone being sexually molested as a child and to how this led to his becoming a ‘street kid’ and beginning to abuse various substances.
  3. The Tribunal has been provided with a copy of the transcript of Magistrate Van Zuylen’s remarks in sentencing Mr Stone for his recent Australian offences on 19 April 2010. The Magistrate described the assault occasioning actual bodily harm offence as “very serious” and referred to the evidence of the victim who said Mr Stone:
abused her, called her a junkie whore, amongst other things, dragged her into the car, punched her in the face, pursued her, no doubt terrified her. She blacked out, [sic] put his hands around her throat.

  1. The Magistrate said he found Mr Stone’s explanation of the events concerning this offence to be “unbelievable” and rejected his defence. The Magistrate referred to Mr Stone being released on bail after being convicted of this offence and that he “then proceeded to assault [the victim of the first offence] and commit a larceny offence whilst he was on bail to keep away from her”. Mr Stone “just seemed to regard his behaviour as innocent and [sic] dismissive of her”. With regard to the letter of apology Mr Stone had provided to the Court, the Magistrate commented:
He apologises now but was not so regretful and remorseful as he says in that letter to have pleaded guilty at the time. He pleaded not guilty, dismissed it, gave a different version which was not accepted and now presents a letter saying he is regretful and remorseful for his actions. ...
The presentence report is not particularly helpful to him. He is reported as being a poly drug user for many years with heroin, methamphetamines and ecstasy being his drugs of choice. He would continue in this lifestyle until his funds expired at which time he would return to work and continue the cycle. He is described as a person who has not yet come to terms with the dangers of living a drug related lifestyle. And he also said that he disputed the way that the offences were described to court. He was going to use his period of imprisonment as a period of drying out before his return to a drug related lifestyle when eventually released. So it was a very unhelpful presentence report. ...
The court has had access to the marks and bruises on the victim’s face and neck in support of the assault occasioning actual bodily harm. It is of the view that they were all serious matters. The court has considered the contents of the presentence report. He is unsuitable for community service, unsuitable for periodic detention. The court is of the view that there is no other alternative other than a sentence of fulltime imprisonment.

  1. Mr Stone gave evidence at the hearing about the circumstances relating to the two recent assault convictions. He said after he moved to Canberra with A, initially, they both stayed with his cousin, Ms T and her family. After about two weeks, Mr Stone obtained work in Queanbeyan and because of the lack of additional accommodation in Ms T’s house – there already being 2 adults and seven children in the house – he decided to move to temporary accommodation - a hotel in Queanbeyan near his work - leaving his son to live in Ms T’s household.
  2. Mr Stone said he met a woman, referred to as ‘Ms N’, in January 2010 at a time when she was homeless. They started a relationship and she was living with him in the hotel. She told him that she was using heroin. He acknowledged that while he was with her, he used heroin on about four occasions “to be sociable”. To support her heroin habit, Ms N was working as a prostitute from time to time, about which he was very unhappy, and their relationship began to break down. Mr Stone said that about 2.00am on Saturday 23 January 2010, Ms N “started going off her head” wanting heroin. She took his spare set of car keys and drove off in his car. Mr Stone was worried so he phoned the police and reported his car stolen. The police were busy and were unable to respond immediately.
  3. About an hour later, Ms N returned to the hotel room, having forgotten her phone which had her dealer’s phone number in it and which she needed in order to obtain heroin. Mr Stone resisted giving Ms N her phone and instead asked where his car was, which she had not parked outside the hotel. However, after looking for the car, he found it behind a nearby block of flats. When he got into it, using his principal set of keys, she tried to stop him and they had a noisy row. It was about 4.30am. Somebody in the neighbouring flats reported the matter to the police who arrived not long after Mr Stone had also just phoned the police to report that he had got his car back. The police arrived about 5.00am. When Ms N tried to get into his car, a police officer stopped her and pulled her out of the car holding her hair.
  4. Mr Stone said that after this, he drove to a friend’s house across the road from the hotel and parked his car on the road outside. Ms N later followed him there and took his car once again. Mr Stone went to the police station and made a ‘complaint’ that his car had been stolen. The police said they would look for the car and he told the police that he would also look for it. He got his friend to drive him to Ms N’s dealer’s house where they parked to see if she would come there, but she did not. About 10.00am, Mr Stone having found her phone, he phoned her dealer to try and find her. Ms N then phoned him at about 10.30am and they arranged to meet in an hour or so outside Queanbeyan Railway Station where she would hand back the car. But when they met, she did not want to return the car, saying that she wanted to use it to attend an interview. When she got out of the car to explain, Mr Stone jumped into the car and drove away, to his mate’s place. However, that afternoon, Ms N came and stole the car again. Mr Stone said he was too exhausted to do anything further about it and did not phone the police again.
  5. Mr Stone said that they agreed to meet in order for her to return the car next morning (being Sunday), again at the railway station. She did not arrive at the time arranged and, after he phoned her, she was still late for the second arranged meeting. He was angry and frustrated and, when she arrived in the car, he “yanked her out of the driver’s seat” by the arms and pushed her to the ground. He then got into the car and drove away. He saw that she had “a few grazes” but she got up from the ground and went to use a payphone.
  6. On Monday, the police came to his friend’s house where they arrested Mr Stone and took him to the police station where he was charged. He phoned a lawyer who advised him not to make a video statement. The police then organised the AVO and told him that he was not to have any contact with Ms N. However, because he had all “her gear” in his hotel room, he had to arrange to get it to her. She wanted to meet with him and two days later, he allowed her to move back in with him.
  7. Mr Stone said that about a month later, Ms N “went off her head again”. She woke him after he had been asleep a couple of hours and all he remembers is pushing past her to get out of the hotel door. He acknowledged that he had been drinking the night before, but said he had not used heroin in the previous week. Mr Stone said that after he left, Ms N phoned the police to report the incident, and next day, when he went to the police station to report (he was reporting on Mondays, Wednesdays and Fridays), he was arrested. Ms N had alleged that Mr Stone had taken some money of hers from a table in the hotel room, which he denied. He said that her motive in lying about this may have been to enable her to go to Centrelink and state that her money had been stolen so that they would give her a cash advance which would then enable her to buy another “hit”.
  8. Mr Stone said his violent behaviour was out of character for him and was borne out of frustration and his not knowing how to handle the situation with Ms N. It was “a bad mistake” and he is “disgusted” with his conduct. In his previous (15-year) relationship with his long-term partner and the mother of his three sons, referred to as ‘Ms E’, there was never any violence. Jenny Howell, the forensic psychologist who provided a Risk Assessment Report dated 22 January 2011, said she had spoken with Mr Stone’s eldest son A in Canberra for several hours and he had confirmed that there was no physical abuse in the relationship between his parents. Ms Howell said since Mr Stone’s imprisonment, he has realised that his behaviour was violent and unacceptable and that he needs to develop strategies to deal with situations where he feels angry.
  9. Ms Rao noted that the Australian offences occurred within a short period of time of each other and all relate to Mr Stone’s short relationship with Ms N. Ms Rao said while Mr Stone initially had difficulty coming to terms with his behaviour, he has since developed some insight into his conduct and how this appears to others. While clearly “he is no angel”, the other evidence, such as that of Mr Douglas, suggests he is not a violent man. Moreover, Mr Stone now recognises the need to get help in developing strategies to address his anger.
  10. Ms Collins, representing the Minister, submitted that Mr Stone’s recent assault convictions are of a very serious nature and his evidence about the first incident when he assaulted Ms N, of her suffering “a few grazes”, seeks to minimise the injury to the victim in the light of the Magistrate’s sentencing remarks concerning her injuries.

The risk that the conduct may be repeated

  1. With regard to the risk that the conduct may be repeated, paragraph 10.1.2 of Direction No 41 requires that consideration be given to Mr Stone’s previous general conduct and total criminal history and, in particular, to any recent history of convictions, evidence of rehabilitation and evidence as to whether he has breached any judicial orders including bail and parole orders.
  2. The Immigration Report, dated 30 September 2010, prepared by the Probation and Parole Service, Goulburn District Office, states that Mr Stone was “generally compliant with gaol routine” although he was the subject of one institutional charge while in custody “as a result of his trying to divert his methadone”. Mr Stone “attended for individual counselling to address his drug and alcohol issues” and “began a methadone program which he said had assisted him to cope without drugs while in custody”. However, Mr Stone told the Tribunal that he started on the methadone program while in prison in order to get medication to help him sleep, having been advised by other inmates that this was the only way to get something to help him sleep. He just went to see the doctor and told him he had previously been using heroin and the doctor prescribed methadone.
  3. Mr Stone told Ms Howell that, initially, he was unaware of the addictive property of methadone. However, in oral evidence he stated that after a while, the amount he had been prescribed was not working so well in helping him sleep. To overcome this, he was able to obtain an increased dosage by filling out a request form which was given to a nurse. When his request had been approved, he got the increased dose. He did this twice, with the result that, ultimately, he was on a high dose of methadone.
  4. Recognising that he has become addicted, Mr Stone said he does not want his life to revolve around drugs and he has told the doctor at Villawood that he wants to get off methadone. Mr Stone is therefore gradually reducing his dosage – at first by 1ml every 14 days and now by 1ml every seven days. Since being in Villawood, he has reduced his dose from 30mls to 24mls and, as the doctor told him, is having to get used to having trouble sleeping.
  5. In his statement, Mr Stone referred to the drug and alcohol course he undertook while in prison which, he said, helped him recognise his goals and work towards beating drug addiction. He said that he has grown out of using drugs. He gave up marijuana about 6 years ago and, by the time he went into prison, he had stopped abusing alcohol. He was having “the occasional beer” and not usually more than a couple of bottles of beer a week. He was careful because he was working as a truck driver. Mr Stone said he had largely given up using methamphetamines (which he only used every couple of months in New Zealand because they lived in the country) before coming to Australia, although after his relationship with his former long-term partner Ms E broke up again in May 2008, he did use methamphetamines again during heavy work periods as a truck driver. He used heroin on only about four occasions during the two months he was with Ms N.
  6. The Immigration Report stated that Mr Stone was assessed as suitable to participate in the Domestic Abuse Program (four hours a week for 10 weeks) while in prison but he decided against undertaking this because he would lose wages. Mr Stone explained that he did not undertake this program because this would have resulted in him losing prison wages. He needed to earn money to support himself while in prison without the need to rely on any outside support. If he worked a full-time week (he was working 8 hours a day refurbishing demountables), he could earn $60 per week, and those who worked a full-time week might also be offered overtime at the weekend enabling them to earn another $20. He used his earnings to buy his toiletries, some additional food and to pay for telephone calls (for example to his children) and for other things he needed. If he had undertaken the Domestic Abuse Program, he could not have worked full-time. He said the other educational/training programs he undertook in prison did not interfere with his ability to work full-time. He completed a Bonded Asbestos Removal Certificate, ‘White Card’, and Welding Certificate (confirmed in the Immigration Report).
  7. Mr Stone acknowledged that it is important for him to undertake a domestic abuse rehabilitation program. He said he has enrolled in a ‘CALM’ course at Villawood addressing issues concerned with relationships and domestic violence (a copy of the approval for him to undertake this course was provided to the Tribunal) but this does not start until the end of February 2011.
  8. In her Risk Assessment Report, Ms Howell explained that she assessed Mr Stone’s risk of future violence using the HRC-20 checklist. She said Mr Stone’s scores using this method of assessment “indicate that he has some low risk for future violence if he does not remain drug and alcohol free”. He “exhibits some remorse and regret for his behaviour ... [and] does not demonstrate attitudes which support the use of violence”:
He accepts that his violent behaviour towards his girlfriend was unacceptable. Mr Stone does not appear to demonstrate cognitively distorted thinking or exhibit attitudes and behaviours supportive of domestic violence. He has a strong desire to be a good and appropriate role model for his sons and as such recognises that his use of alcohol, illicit drugs and violence has to stop.

  1. In oral evidence, Ms Howell noted that Mr Stone’s long-term relationship with his former partner Ms E did not involve physical violence. Ms Howell said the domestic violence in 2010 arose out of a situation in which he felt he was the victim, his car having been stolen on three occasions. He did not know what to do and reacted in anger in pulling Ms N out of the car. He now realises that what he did was violent and unacceptable and recognises that he needs help to develop strategies to deal with situations when he feels angry.
  2. Mr Stone’s long-term mentor, Mr Douglas, said he was surprised when he heard of Mr Stone’s conviction because “being violent is not in line at all with Greg’s character”. Mr Douglas is an experienced high school teacher specializing in teaching children with special needs and disabilities, who has known Mr Stone since 1987 and has worked with Maori students. Mr Douglas said when Mr Stone phoned him from Goulburn Correctional Centre to tell him about the convictions, he knew that “he had done wrong and was a fool”. Mr Douglas said Mr Stone is not a violent person and “something must have really pushed him in the lead-up to the assault”.
  3. I note that Mr Stone’s criminal history in New Zealand includes breaching judicial orders - non-periodic detention and parole orders - but that the most recent of these breaches dates from 1992. I also note that one of Mr Stone’s recent convictions was for breach of an AVO, to which he pleaded guilty. Ms Rao said he recognises that he was a “fool” in getting involved with Ms N again. Ms Collins pointed out that Mr Stone also lied to the prison doctor in order to obtain a prescription for methadone. I agree that Mr Stone should be reproached for such conduct but the context in which it took place, that is, survival in a prison environment, must also be remembered.
  4. In my view, all the evidence indicates that the risk of Mr Stone committing further violent offences is low and, as Ms Howell stated, is likely to be associated with the abuse of drugs or alcohol. I am also satisfied from Mr Stone’s evidence that he has developed greater maturity in his approach to the use of drugs and alcohol, does not want his life to revolve around drugs which he says he no longer needs, and recognises that such abuse is not consistent with his work, for example, as a truck driver, and, importantly, with setting a good example for his three sons.
  5. Thus, in terms of the first primary consideration, I am satisfied that Mr Stone represents a minimal threat in terms of the protection of the Australian community.

LENGTH OF TIME ORDINARILY RESIDENT

  1. The second primary consideration relevant in Mr Stone’s case - the length of time he has been ordinarily resident in Australia – is further explained in paragraph 10.3(1) of Direction No 41. This states that “more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character”.
  2. Mr Stone first offended in Australia on 24 January 2010 after he had been resident here for just over two years, and then he reoffended while on bail on 21 February 2010. Because of the relatively short period between Mr Stone arriving in Australia and his first offending here, this consideration should not be treated as a consideration in his favour. Rather it should be regarded as a neutral factor: Re Puafisi and Minister for Immigration and Citizenship [2009] AATA 689, at [39] to [41].

BEST INTERESTS OF THE CHILDREN

  1. Direction No 41, paragraph 10.4.1(4) states: “Under Australian law, it is generally presumed that a child’s best interests will be served if the child remains with its parents”.
  2. The Direction sets out a number of factors to be considered in ascertaining the best interests of the child. These include, relevantly, the nature of the relationship between the child and the person; the duration of the relationship including the number and length of any separations and the reasons for those separations; the extent to which the person is likely to play a full parental role in relation to the child; the child’s age, citizenship and relationships with others in a parental role; the likely effect that any separation from the person would have on the child; the impact of the person’s prior conduct on the child; any known wishes expressed by the child; and the circumstances of the probable country of future residence and any language and cultural barriers there for the child.
  3. Mr Stone has three sons in Australia – aged 16, 14 and 13, who are all New Zealand citizens. He also has an adult daughter who lives in the United States with whom he has only recently established contact. Mr Stone said he was closely involved in bringing up his sons from when they were very young. His former long term partner Ms E suffered from post-natal depression with all three and he took a lot of responsibility for them from the time of their birth. Mr Stone said he had his oldest son, A, with him from when he was only two days old. Because they lived and he worked on a farm, he was able to involve them in work on the farm and also taught them about Maori culture: how to hunt and fish, only taking enough for what you need; how to grow food and respect the earth and its produce.
  4. Mr Stone said when his relationship with Ms E broke down after their 15 years together and she left with the boys, she did not tell him that she was intending to take them to Australia. He only found out when his father-in-law revealed that she was trying to get passports for them. Then on a day when he thought they were going to see a movie, she was in fact catching a plane with them to Australia. This was in about September 2007. The children did not know of this in advance. Mr Stone said he had A with him for the week before they left. The three months after they left is the longest time he has had away from his children. He followed them to Australia in December 2007 because he wanted to be in the same land.
  5. Initially, Mr Stone stayed with his cousin in Toowoomba near Ms E and the children and then, in January 2008, he moved back in with Ms E. This did not work out and, in May 2008, Mr Stone went to stay with his friend, Mr Douglas, in Mossman, near Port Douglas. Mr Stone stayed with Mr Douglas for a few months and, while there, he obtained his truck driver’s licence. Having obtained this, he spent a weekend with the children on the way to Brisbane where he went to look for work. Brisbane was near enough to Toowoomba to enable him to see the children about twice a month and in the school holidays.
  6. Mr Stone said while living and working as a truck driver in Brisbane, he became aware A “was getting into trouble and had tried smoking marijuana”. Mr Stone was very concerned and discussed this with Ms E, and they agreed she was unable to control A. Mr Stone had a cousin in Canberra, Ms T, and, with the agreement of Ms E, he decided to take A with him to live in Canberra where his son could get a “fresh start”. Mr Stone said that he was insistent that his son should continue attending school. Initially, they both stayed at Ms T’s house but, after two weeks, because of the number of people living in the house, Mr Stone moved to temporary accommodation, a hotel in Queanbeyan, near where he had obtained work as a truck driver.
  7. Mr Stone said his sons are “the biggest part of my life”. While he was in prison, he used to speak to them on the phone at least once a week. Since he has been at Villawood, where he has access to a computer, he is able to communicate with them almost daily using Facebook and he also phones them. If he is permitted to stay in Australia, he plans to obtain rental accommodation in Canberra for himself and A near where Mr Stone’s cousins live. He would also like to have his youngest son C come and live with them. C, who is 13, and living with Ms E in Toowoomba, is getting into trouble, apparently sniffing solvents, and is out of control. Mr Stone would like him to get him into a school in Canberra and then probably into a trade where he has a clear path forward. Mr Stone said Ms E is unable to control C. This was confirmed by Mr Stone’s eldest son A who said when he was still living in Toowoomba, his youngest brother C would listen to him, but C has got in with the wrong group, a bit like he did after his parents broke up, and does “stupid stuff” like shoplifting, and follows others “like a sheep”. A has learned from his mother and from C that C was in court four times in December and a “parole lady” visits him once a week. His youngest brother needs their father “to keep him in line”.
  8. Mr Stone said A, who is 16, “is a good kid” who does what he is told. This was confirmed by Ms T who said A has adjusted well to living in Canberra. Mr Stone said he had persuaded his son to finish school and his son had accepted this. Again, this was confirmed by Ms T. A finished year 10 at Belconnen High School last year and is just starting at Hawker College for Years 11 and 12. A said he wants to go into a trade and is good with hands-on things. He has already done a lot of courses related to the construction industry, including a bricklaying certificate, and has obtained his ‘white card’ which enables him to work. At Hawker College, he wants to undertake a schools-based apprenticeship with a view, probably, to becoming a plumber.
  9. A said he has been living in Canberra with Ms T and her family for over a year now. He had no trouble settling in and has “heaps of friends”. He gets on well with Ms T, who is a bit like a second mum to him, and with her oldest son who is 18 and with whom he hangs out. However, there are a lot of people living in Ms T’s four-bedroom house, there being seven other kids, and next week he is going to move to Ms T’s sister’s house, where he will have his own bedroom as she only has two children. A said he is quite comfortable with making this move.
  10. It is clear that A has a close relationship with his father. I observed the warmth with which they embraced on arrival at the hearing room. A recalled how his father spent a lot of time with him and also his brothers when they were young, doing things together, and Mr Stone teaching them how to do farm work, like milking the cows. Their father also played a lot of sport with them and, on one occasion, even mowed a strip of paddock for a cricket pitch. His dad wanted to keep them on the farm and away from the gangs to which some of his cousins in New Zealand now belong. “Dad is the one who enforces the rules” and after his parents broke up, “things went bad for a while”. He looks up to his dad and respects him.
  11. A said that if his father had to go back to New Zealand “it would be really hard for everyone”. A does not want to leave Canberra, and said he would probably only be able to visit his father in New Zealand very infrequently. Ms T told me that when A heard that his father might have to go back to New Zealand, he was very emotional and crying. She had never seen him like this before. Ms Howell described Mr Stone as A’s “primary attachment” as a result of Mr Stone’s involvement with his son since he was an infant. His son needs his father in his life; he trusts his father and wants him around. If his father is not here, A will feel responsible (as the oldest brother) for his two younger brothers, a responsibility that is not insignificant because the youngest son C is difficult to manage. A also told Ms Howell that if his father has to return to New Zealand, he would rather stay in Canberra than return to Toowoomba to live with his mother, even if this meant living on his own.
  12. A said his younger brother B, who is 14, “is a really good kid”. He does not give their mother any trouble and will probably remain living with her. He is into sports, and “has good mates and girlfriends”. B provided a letter of support for his father filed on 21 January 2011. He said he loves his father a lot and remembers his first 11 years growing up on an isolated farm in New Zealand where his father taught them how to hunt, shoot and fish, to rear and butcher their own stock and generally to be self-reliant. They would go diving and camping together, and he and his brothers formed a strong bond with their father. B said he needs his father in Australia to guide and support him and does not want their family to “become another broken family statistic”.
  13. Mr Stone’s youngest son C also provided a letter of support filed on 21 January 2011. He said he can always count on his father who has always been there for him. C said he has “been in a bit of trouble since my dad has been locked up. I hope to live with my big brother and dad in Canbra [sic]. And I know that I would not be in as much trouble if my Dad was around.” He said he needs his father to stay in the country and will lose the connection with him if his father is sent back to New Zealand.
  14. Ms T said that before A came to live with her in Canberra, she last saw the three boys with their father in New Zealand about three years ago. Mr Stone always seemed to have his boys with him. Even though she loves Mr Stone, she is “cranky” with him for leaving A with her last year when she already had seven children to look after - her four biological children and her brother’s three children for whom she cares. Moreover, Ms T said that last year, she was diagnosed with breast cancer and underwent chemotherapy and radiotherapy. It was a difficult year for her. A is now moving to live with her sister about a kilometre away, where he will have his own bedroom and be nearer to Hawker College. Ms T said she is aware from talking with A that his youngest brother C “is not going so good” in Toowoomba currently. While she would welcome C into her family, she would not be able to have him living in her home. He would have to be with his father.
  15. I accept that a child’s best interests will generally be served by the child remaining with its parents. Mr Stone and his former partner are separated, with the two younger sons B and C living with their mother in Queensland and A currently living with Mr Stone’s cousin in Canberra. In my view, the evidence before the Tribunal from the family members and from Ms Howell clearly establishes that Mr Stone has a strong bond with his three sons with whom he established a close relationship from a young age when they were all living on an isolated farm in New Zealand. Mr Stone is an important influence in his sons’ lives, they appear to respond better to his authority than their mother’s, and I am satisfied that they would be adversely affected by his being removed to New Zealand. While Mr Stone could maintain contact with them from New Zealand by email, Facebook or phone, their relationship would not be the same. This is particularly significant in the case of A and C who, Mr Stone says, he intends to have living with him in Canberra if he is released into the community. In my view, the evidence clearly supports a finding that Mr Stone’s children’s best interests strongly favour his being allowed to remain in Australia.

OTHER CONSIDERATIONS

  1. As noted above, Direction No 41 states that ‘other’ considerations, where relevant, must be taken into account but, generally, should be given less weight than ‘primary’ considerations. Relevant ‘other’ considerations in Mr Stone’s case specifically referred to in the Direction are his family ties and the nature and extent of his relationships with those in the Australian community, his age, his health, his links with New Zealand, the hardship that may be experienced by both Mr Stone and his immediate family members in Australia, his level of education, and whether he has been formally warned in the past that his visa might be cancelled because of his criminal conduct.
  2. With regard to Mr Stone’s family ties, I have no doubt that he is deeply attached to his children and wishes to remain in Australia in order to support and guide them. He also has an extensive network of other family members in Australia, including cousins in Canberra, and Ms T’s evidence confirms this. I note Ms Howell’s comment that “Family is central to Maori culture and this helps explain his inability to remain in New Zealand once his partner and children had relocated to Australia.” This was also referred to by Mr Douglas. The departmental movement records for Mr Stone indicate that he has not left Australia since arriving here on 7 December 2007.
  3. I am satisfied that for Mr Stone to be returned to New Zealand would cause him significant hardship because of his being distanced from his children. While there is no reason for them not being able to maintain contact by telephone, email and, for example, through facebook, and while in the future they could visit him from time to time in New Zealand, nevertheless, I accept that the quality of their relationship would be adversely affected. As stated above, it would not be in the best interests of his children, who are his family members in Australia who would be principally affected.
  4. Nevertheless, given that Mr Stone has only been in Australia for just over three years, his age – 42 - and that he has no declared health problems, he would probably have no significant difficulty in re-establishing himself in New Zealand, and his return there would not otherwise cause him significant hardship. He has remained in contact with his mother who lives in Mangakino on the North Island of New Zealand. One of his two sisters and a brother also live there. His other sister lives in Auckland. He has talked with his mother on the phone from Villawood twice since Christmas and also with his sister in Auckland. His family would, presumably, be able to give some support if he returned to New Zealand.
  5. Mr Stone said that if he returned to New Zealand, it would not be to Mangakino because there is no work there. However, I note that his being licensed as a truck driver would be likely to assist him in finding employment driving trucks, albeit in one of the larger cities.
  6. As to Mr Stone’s situation if he is permitted to remain in Australia, as mentioned, he has undertaken additional training while in Australia, both training as a truck driver while in Port Douglas and, during his time in prison, undertaking some construction industry related training and obtaining a welding certificate. In my view, it is likely that he would not have difficulty finding employment if released into the Australian community. He would also have support from his extensive family network in Australia.
  7. Finally, I note that Mr Stone has not received a formal warning from the Department. In the context of the strong bond Mr Stone has with his sons, and, what appears to me to be his greater maturity, this is perhaps unfortunate. It might have been a sufficient wake up call as to the possible consequences of any further misconduct on his part.

CONCLUSION

  1. Weighing up the relevant ‘primary considerations’, as stated above, I am satisfied that Mr Stone represents a minimal threat in terms of the protection of the Australian community. I am also satisfied that the best interests of Mr Stone’s sons strongly favour Mr Stone being allowed to remain in Australia. The other relevant primary consideration, the length of time Mr Stone has been ordinarily resident in Australia, is, as explained above, a neutral consideration. Of the ‘other considerations’ to which less weight must be given than the primary considerations, I accept that Mr Stone’s return to New Zealand would cause him significant hardship because of the separation from his children to whom he is strongly attached. I also note that if Mr Stone is released into the Australian community there appear to be good prospects for him obtaining employment and he has an extensive family network here that can provide him with some support. Finally, Mr Stone has not previously been warned about consideration being given to the cancellation of his visa.
  2. Weighing up all these matters, I am satisfied that the discretion in s 501(2) of the Act should be exercised in Mr Stone’s favour and his visa should not be cancelled.

DECISION

  1. The decision under review is therefore set aside and a decision substituted that the discretion in s 501(2) of the Migration Act 1958 should be exercised in Mr Stone’s favour so as not to cancel his visa.

I certify that the 72 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President.

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

A Veness, Associate


Dates of Hearing: 31 January and 1 February 2011

Date of Decision: 9 February 2011

Applicant representative: Ms C Cantrall, NSW Legal Aid Commission

Applicant counsel: Ms A Rao

Respondent representative: Ms A Collins, Clayton Utz

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