respondent. Tribunal affirmed the Minister's cancellation of the applicant's visa under s 501(2) of the Migration Act 1958; the applicant's review was dismissed.
Key principles
Where the Minister has cancelled a visa under s 501(2) of the Migration Act 1958 on character grounds, the Tribunal must exercise the discretion in accordance with the Minister's...
A Statement of Facts, Issues and Contentions is not necessarily a document 'supporting' an applicant's case for the purposes of s 500(6J) and therefore, where it is merely a...
In applying Direction No. 41 the protection of the Australian community from unacceptable risk of harm from criminal conduct is a primary consideration; where an applicant has a...
Issues before the court
Whether the Tribunal should cancel the applicant's visa under s 501(2) when the applicant does not pass the character test.
Whether the applicant's filed Statement of Facts, Issues and Contentions should be excluded under s 500(6J) for being a document 'supporting' the...
Whether the best interests of the applicant's children or other related children required that the applicant remain in Australia.
Plain English Summary
The Tribunal confirmed the Minister's decision to cancel Mr Tuatara's special category visa under the Migration Act because he failed the character test. Despite recent participation in rehabilitation programs and long residence and family ties in Australia, his extensive history of violent offending, repeated breaches of orders, prior warnings about deportation, and the Tribunal's assessment of an unacceptably high risk of re-offending led the Tribunal to conclude that protection of the Australian community outweighed other considerations, including the applicant's children's best interests given lack of contact and evidence.
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Deep Dive
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What happened
Donald Tuara Tuatara, a New Zealand citizen who arrived in Australia in 1987 aged 14 and who has held a Special Category Visa since 1994, had his visa cancelled by the Minister for Immigration and Citizenship under s 501(2) of the Migration Act 1958 because he did not pass the statutory character test (Introduction). The applicant sought merits review in the Administrative Appeals Tribunal. The Tribunal (Deputy President Tamberlin QC and Senior Member Toohey) heard the matter on 21–22 June 2010 and delivered reasons on 2 July 2010, affirming the Minister's cancellation decision.
Cited legislation
No linked legislation citations have been extracted yet.
The essential facts are these. The applicant has a long and serious criminal record in Australia stretching from shortly after arrival as a minor through to offences in 2008–2009. His record includes armed robbery (1994), multiple assaults occasioning actual bodily harm and other violent offences, breaches of apprehended violence orders, and several periods of imprisonment (Background: summary of convictions). He had received at least two prior written warnings from the Department that further offending could lead to deportation (OTHER CONSIDERATIONS). While in Long Bay gaol before release in 2010 he participated in an intensive rehabilitation program (Ngara Nura) and produced evidence from program staff and a clinical psychologist as to his engagement and reduced risk in some respects. Family members gave evidence of supportive family ties in Australia, but the applicant had not seen his children since 2002 (Background; PRIMARY CONSIDERATIONS: best interests of the child).
The Tribunal's task was to exercise the statutorily required discretion in accordance with the Minister's Direction No. 41 (the Direction), weighing the Direction's primary considerations (protection of the Australian community; whether the person was a minor on arrival; length of ordinary residence; relevant international obligations including the best interests of any child) and other considerations (family ties, links to country of removal, hardship, prior warnings) (RELEVANT LEGISLATION & POLICY).
After assessing the applicant's history, the evidence of rehabilitation, and the competing considerations, the Tribunal concluded that the unacceptable risk the applicant posed to the community outweighed any favourable considerations. The Minister's cancellation was affirmed.
Why the court decided this way
The Tribunal applied the statutory framework in two stages: (1) legal qualification and (2) discretionary balancing under Direction No. 41.
Legal qualification: It was common ground that the applicant had a substantial criminal record within the s 501(7) definition (multiple sentences of imprisonment, including individual terms of 12 months or more). That establishes the legal conclusion that the applicant does not pass the character test.
Discretionary balancing under the Direction: Direction No. 41 is binding on decision-makers exercising s 501 discretion. It identifies primary considerations, the most important of which for this case were the protection of the Australian community from serious criminal conduct (cl 10.1.1) and the best interests of any affected child (cl 10.4), plus whether the person was a minor on arrival and length of residence (cl 10).
The Tribunal weighed the following elements:
Seriousness and nature of prior conduct: The applicant had multiple violent offences and the sentencing remarks in prior prosecutions described the conduct as serious and dangerous. The Tribunal emphasised the pattern of repeated violence and breach of orders (PRIMARY CONSIDERATIONS (a), (i)).
Risk of repetition: The Direction directs particular attention to recent convictions, evidence of rehabilitation and breaches of orders as indicators of risk (cl 10.1.2(2)). The Tribunal assessed both documentary and oral evidence about rehabilitation: the applicant had engaged in Ngara Nura in late 2009, shown participation and acceptance into Glebe House, and an independent psychologist assessed reduced risk of violent recidivism but moderate risk of general recidivism. Despite these positive elements, the Tribunal placed significant weight on the applicant's long history of relapsing substance abuse, repeated breaches of AVOs and other orders, and the fact he had received prior written warnings about deportation. The Tribunal found that, taken as a whole, the applicant posed an 'unacceptable' risk of future harm, particularly to women with whom he might form relationships (PRIMARY CONSIDERATIONS (a) and (ii)).
Best interests of the applicant's children: Direction No. 41 requires consideration of the Convention on the Rights of the Child principles where a child in Australia may be affected. The Tribunal examined the applicant's relationship with his children and found he had not had contact for eight years. There was little evidence to show ongoing reliance upon the applicant or that removal would be contrary to the children's best interests. Consequently the Tribunal gave that factor limited weight (PRIMARY CONSIDERATIONS (d)).
Other considerations: Family ties in Australia, hardship of removal, and links to New Zealand were considered. The Tribunal accepted the family would be distressed and acknowledged limited ties to New Zealand, but found these did not outweigh the unacceptable risk to the Australian community (OTHER CONSIDERATIONS).
On that evaluative basis the Tribunal concluded the protection of the Australian community outweighed the favourable considerations: cancellation was affirmed.
Procedurally, the Tribunal also ruled that the applicant's Statement of Facts, Issues and Contentions was not a late 'supporting' document for the purposes of s 500(6J) where it operated as a summary of intended submissions rather than as new evidence, and therefore the document need not be excluded. The Tribunal relied on the purpose of s 500(6J) (preventing surprise and adjournments) and noted the Minister conceded the document's contents could be given orally (Two Preliminary Matters).
Before and after state of the law
Before this decision the applicable legal architecture was clear:
s 501 provides for visa cancellation on character grounds; s 501(6)-(7) defines 'substantial criminal record';
Direction No. 41 (June 2009) is binding and prescribes a structured list of primary and other considerations for decision-makers to apply in s 501 exercises;
procedural requirements under s 500 include time limitations and rules aimed at avoiding surprise and preserving statutory time frames for merits review.
This Tribunal decision applies those authorities in a fact-specific way and confirms key points of law:
It affirms that Direction No. 41 must be applied in s 501 discretionary decisions and that public protection is a primary, weighty consideration (i.e. the Direction's structure is to be followed and given effect to in merits review).
It clarifies, in its procedural ruling, that a Statement of Facts, Issues and Contentions that is a summary of intended oral submissions is not necessarily a 'supporting' document excluded by s 500(6J), thereby preserving some procedural flexibility for applicants to outline their submissions.
After this decision, lower tribunals and decision-makers can cite it for the proposition that where evidence shows a long pattern of violent offending, repeated breaches and prior warnings, even credible, recent rehabilitative engagement may not outweigh protection considerations. The decision reinforces that the Direction's protective emphasis will frequently be decisive where the risk of recurrence of violent behaviour is assessed as unacceptably high.
Key passages with plain-English translation
"The decision under review is affirmed."
Plain English: The Tribunal agrees with the Minister and dismissed the applicant's review; the visa cancellation stands.
"We are of the view that s 500(6J) does not apply to a Statement of Facts, Issues and Contentions. It is not evidence but, rather, a summary of the case..."
Plain English: A written outline of the arguments an applicant will make is not automatically excluded as 'late evidence' under the statutory rule, provided it is only a summary of submissions and not new supporting documents.
"We are satisfied that the degree of unacceptable risk that he poses to the Australian community far outweighs all other considerations."
Plain English: After weighing everything, the Tribunal found the danger the applicant might commit serious crimes again is so great that it beats any reasons to let him stay, including family and rehabilitation.
Observations about rehabilitation: the Tribunal accepted the applicant's recent efforts but said his past record of relapses and breaches made the risk of re-offending high.
Plain English: Even sincere recent steps to change are not always enough; the Tribunal will consider the whole history and may decide prior failures make future relapse likely.
What fact patterns trigger this precedent
This decision will be most persuasive where a non-citizen:
Has a 'substantial criminal record' including violent offending and multiple custodial sentences;
Has a lengthy history of breaches of judicial orders (for example repeated breaches of AVOs);
Has previously been warned that continued offending could lead to visa cancellation or deportation;
Has a pattern of relapse into substance misuse that is causally linked to offending;
Seeks to rely on recent participation in rehabilitative programs as the principal basis for arguing that the risk of re-offending is low, but where independent evidence does not demonstrate sustained rehabilitation or where the historical pattern indicates high recidivism risk;
Has limited or no meaningful contact with dependent Australian children for a prolonged period, and produces little evidence that removal would be contrary to their best interests.
In such fact patterns, the Tribunal's approach, prioritising protection of the Australian community and treating rehabilitation evidence with caution when there is an extensive adverse history, is likely to be followed.
How later courts have treated it
This is an Administrative Appeals Tribunal decision. It applies Direction No. 41 and Migration Act provisions already binding. As an AAT decision it is persuasive in later merits review cases but not binding on other AAT panels or courts. The decision cites the Full Federal Court's Goldie decision for interpreting procedural provisions (Two Preliminary Matters), and follows established lines that the 84 day time limit and the purpose behind s 500 procedural restrictions should not unduly curtail fair oral submissions where documents do not constitute new evidence.
Practitioners should expect that similar AAT panels will treat this decision as a useful example of balancing rehabilitation evidence against a long, serious criminal history. Federal Courts reviewing AAT decisions on questions of law will usually defer to the Tribunal's evaluative fact-finding unless the Tribunal misapplies the Direction or the Migration Act. This decision illustrates a careful application of the Direction and is therefore unlikely to be overturned absent legal error.
Still-open questions
Weight to rehabilitation evidence in different contexts: The Tribunal accepted some expert evidence that the applicant's risk of violent recidivism was lowered by recent treatment, but nonetheless gave that limited weight because of a long history of failed rehabilitation. A remaining question is the precise threshold and quality of evidence needed to displace a serious historical record. For example, how much sustained, post-release evidence of abstinence and community-based supports will be required to tip the balance in future cases? This remains fact-sensitive.
The proper evidential showing for 'best interests' in family contexts: The Tribunal emphasised the lack of meaningful evidence about the children's current positions and the consequences of separation. A recurring issue is what specific material suffices to make the best interests of children a decisive or substantial factor, particularly where there is long separation or where third parties (other family members) play parental roles.
Interaction of prior warnings and rehabilitative prospects: The Tribunal placed weight on prior warnings about deportation as diminishing the applicant's equitable claim to remain. Open questions include how to calibrate the moral and practical effect of warnings against genuine post-warning rehabilitation in other cases.
Procedural scope of s 500(6J): The Tribunal held that a Statement of Facts, Issues and Contentions functioning as a summary is not caught by s 500(6J). There remains some uncertainty at the margins about when a document crosses the line into being a 'supporting' document that must be served earlier, particularly where an applicant's late disclosure includes new factual particulars or affidavits.
Practitioners should prepare robust, contemporaneous evidence for rehabilitation and for any child-impact claims, and should ensure procedural compliance with s 500 documents where any doubt exists. The Tribunal's decision emphasises that, in high-risk factual scenarios, protection of the community will be decisive unless compelling, independent, and sustained rehabilitation and cogent child-impact evidence is produced.
Judgment (67 paragraphs)
[1]
Tuatara and Minister for Immigration and Citizenship [2010] AATA 496 (2 July 2010)
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 - length of time ordinarily resident in Australia - best interests of the child - no contact with children for eight years - other considerations - family ties and nature and extent of any relationship with the Australian community - applicant's efforts to rehabilitate outweighed by risk of re-offending - decision under review affirmed.
Donald Tuara Tuatara is a New Zealand citizen. He arrived in Australia with his family in 1987 when he was fourteen. Since September 1994, he has held a Special Category Visa by virtue of which, as a New Zealand citizen, he is allowed to remain in Australia, subject to the provisions of the Migration Act 1958 (the Act).
Since arriving in Australia, Mr Tuatara has committed numerous offences and has spent over five years in gaol. On 6 April 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 Tuatara seeks review of that decision.
[7]
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.
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 Tuatara does not pass the character test.
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.
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.
[8]
(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 (CROC).
[9]
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) family ties, the nature and extent of any relationships:
the extent of disruption to the person's family, business and other ties to Australia community;
[10]
(d) 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;
(e) hardship likely to be experienced by the person or their immediate family members lawfully resident in Australia:
(i) including whether the immediate family members are able to travel overseas to visit the person; the nature of the relationship between the person and the immediate family members; and whether immediate family members are in some way dependent on the person for support which cannot be obtained elsewhere;
(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.
[11]
The relevant issue in this case is whether the Tribunal should cancel Mr Tuatara's visa.
Mr Tuatara does not dispute that he has committed serious offences in Australia. However, his primary submission is that the risk of his risk of re-offending is now reduced by virtue of his involvement in a rehabilitation program, and is outweighed by the best interests of his children and his close ties to the Australian community.
[12]
Mr Tuatara is thirty-seven and the youngest of seven children, the eldest two of whom share a different father. He has four children, aged 15, 13, 11 and 10, who live with his former wife, her partner and their child. He has not had contact with his children since 2002. His mother died of cancer in November 2008. His father lives with Mr Tuatara's half-sister and her children in Sydney. Also in Australia are his older sister, her daughter and her three children; and his brother, his brother's partner and their son.
In November 1987, eight months after arriving in Australia, Mr Tuatara was charged with break, enter and steal and placed on a good behaviour bond. He returned to New Zealand in September 1989 for 11 months during which time he was convicted of six counts of burglary. He returned to Australia in August 1990, apparently contrary to supervision orders to which he was subject at the time.
To set out Mr Tuatara's Australian criminal record in full would take several pages. In summary, it comprises convictions and prison sentences for the following offences:
[13]
17 July 1991 Assault and robbery, possession of cannabis and driving offences (6 counts)
[14]
17 December 1992 Stealing, and making and using false instruments (4 counts)
[15]
26 September 1993* Assault occasioning actual bodily harm
[16]
19 April 2000* Assault occasioning actual bodily harm
[17]
11 August 2000 Contravene apprehended violence order (AVO)
[18]
2 February 2001 Behave in offensive manner in/near public place/school
[19]
8 March 2001* Assault; knowingly contravene AVO (5 counts);
[20]
26 May 2001 Use offensive language in/near public place/school
[21]
12 June 2001 Behave in offensive manner; assault (2 counts); contravene AVO (4 counts)
[22]
31 July 2001* Assault occasioning actual bodily harm; steal motor vehicle; contravene AVO; not comply with condition good behaviour
[23]
Sentenced to 18 months with non-parole period of nine months
[24]
27 June 2002 Not make ticket available for inspection; wilfully use offensive language and spit
[25]
22 November 2002* Assault occasioning actual bodily harm; maliciously wound
[26]
Sentenced to 12 months with a non-parole period of 7 months
[27]
6 September 2004 Drive while never licensed second offence
[28]
Sentenced to 12 months with nine months non-parole
[29]
12 July 2007 Drive while disqualified (3 counts); fail to appear in accordance with bail undertaking; drink driving
[30]
10 November 2008* Demand property in company with menaces and intent to steal
[31]
12 January 2009* Assault occasioning actual bodily harm; stalk/intimidate intend fear of physical/mental harm
[32]
Sentenced to total 20 months with 15 months non-parole period
[33]
* Those crimes relating to assault and menacing behaviour are noted with an asterisk.
[34]
Mr Tuatara was due for release from Long Bay gaol on 11 May 2010, and would ordinarily have been transferred to Villawood detention centre pending the outcome of these proceedings, but has elected to remain in Long Bay.
[35]
The Minister submits that Mr Tuatara's Statement of Facts, Issues and Contentions was filed outside the time limit prescribed by ss 500 (6J) of the Act and that the Tribunal therefore cannot have regard to it. That sub-section provides that the Tribunal must not have regard to any document submitted in support of an applicant's case unless a copy is given to the Minister at least two business days before the hearing.
Mr Tuatara contends that, correctly interpreted, ss 500 (6J) does not apply to a Statement of Facts, Issues and Contentions because it is not a document "supporting" his case but, rather, a summary of submissions proposed to be made at the conclusion of the hearing and a summary of the case sought to be made out on evidence and arguments which are presented to the Tribunal at the conclusion of the hearing.
He contends that the purpose of ss 500 (6J) is to prevent the Minister being taken by surprise, necessitating an adjournment which could lead to a breach of the time limit in ss 500(6L). Sub-section 500 (6L) provides that a decision under review is taken to be affirmed if the Tribunal has not made a decision within 84 days of the applicant being notified of it. If the Minister's interpretation is correct, he says, he would be prevented from referring to decided cases or making submissions on the evidence in the course of the hearing after cross-examination, and that such unwarranted restriction would produce serious procedural unfairness and cannot have been intended.
In support of this submission, Counsel for Mr Tuatara refers to the decision of the Full Federal Court in Goldie v Minister for Immigration and Multicultural Affairs[2001] FCA 1318; at 25 per Gray J, where His Honour referred to and (J):
[36]
The purpose of these drastic provisions is apparent. The Minister is to be given an opportunity to answer the case to be put by the applicant for review without the necessity of an adjournment of the hearing. The purpose of the scheme ins 500is that an applicant for review should not be able to change the nature of his or her case, catching the Minister by surprise, and forcing the Tribunal into granting one or more adjournments to enable the Minister to meet the new case put. If this purpose were not sufficiently apparent from the terms of the legislation, it is apparent from the Second Reading Speech in relation to the bill by which the provisions were introduced... The expressed intention of the bill was to prevent the use of the procedure of merits review to prolong the stay in Australia of a person denied a visa by the application of the character test. Crucial to the scheme is the 84 day time limit for the whole process, laid down in ss (6L).
[37]
Having regard to these considerations, we are of the view that ss 500 (6J) does not apply to a Statement of Facts, Issues and Contentions. It is not evidence but, rather, a summary of the case and the submissions intended to be made out by Mr Tuatara after producing the necessary evidence and submissions to back up those claims.
We note that, not withstanding the submissions as to the inadmissibility of the document, the Minister concedes that the Statement of Facts, Issues and Contentions could, consistently with the subsection, be put before the Tribunal by way of oral submission. This concession supports the position put for Mr Tuatara. Accordingly, we reject the submissions of the Minister on this point.
The second preliminary matter is the submission by Counsel for Mr Tuatara that the requirement to have regard to the best interests of the child is sufficiently wide to oblige the decision maker to consider the interests of other children, related to the children of Mr Tuatara, and to have regard to the impact on those children of his removal from Australia. It is said that the best interests of the children of siblings are relevant.
However, it is not necessary, in the circumstances of this case, to explore the breadth of the definition of "child" or "children" in the CROC or in the provisions of the Direction because, although assertions were made that other children in Mr Tuatara's extended family might miss any contact with him, there was no significant evidence put before the Tribunal as to the extent of any such alleged impact.
We have taken into account the submissions made on this interpretation but, in view of the lack of any useful evidence to enable us to evaluate any such detriment we do not assign significant weight to them.
[38]
(a) Protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence
[39]
Factors relevant to assessing the degree of risk to the Australian community of Mr Tuatara'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).
[40]
(i) The nature and seriousness of Mr Tuatara's conduct
[41]
Mr Tuatara has a long history in Australia of serious and violent offences and breaches of judicial orders and undertakings.
In 1994, Mr Tuatara was convicted of armed robbery. He was on good behaviour bonds at the time, including for assault occasioning actual bodily harm. In sentencing him to a minimum 18 months imprisonment, the District Court judge noted he had already committed 28 offences in five years in Australia. He described Mr Tuatara's conduct as "serious" and "cowardly":
[42]
"It was unprovoked, and the use of a dangerous bottle is ...particularly reprehensible. An aggravating feature is the fact that this offence breaches a recognisance also for an offence of violence".
[43]
Mr Tuatara was in prison for this offence when his oldest child was born in November 1994. By his own evidence, drugs and alcohol were a problem throughout his marriage and his drinking led to difficulties and to fights. His wife left with the children in early 2000 just after their youngest child was born. In April 2000 she obtained an apprehended violence order (AVO) against Mr Tuatara. It did not include their children, whom he continued to see, but he repeatedly contravened to the order in respect of his wife.
Since his marriage ended, Mr Tuatara has been in relationships with three women. He has been convicted of serious assaults on each, and each has obtained AVOs against him. The Tribunal has before it the facts sheets in relation to each assault and the witness statement of Mr Tuatara's partner concerning an assault in 2002. The facts sheets and statement describe brutal and repeated assaults. Mr Tuatara disputes the nature and extent of some of the facts, but sentencing comments, as well as statements by his own counsel at the time, make clear the nature and seriousness of the assaults.
In April 2006, Mr Tuatara was sentenced to 12 months imprisonment for an assault on his then partner of three months. The magistrate described it as:
[44]
"quite a lengthy assault, it involved punching the victim, taking hold of the victim's hair, pushing her, kicking her to the upper thigh, again grabbing her by the hair, throwing her to the ground, forcing her back up on the ground again and closing the door on the victim."
[45]
There is no record of Mr Tuatara committing any violent offences between March 2006 and November 2008. However, in July 2007, he was convicted of a number of driving-related offences including three counts of driving while disqualified.
In February 2009, Mr Tuatara was sentenced to concurrent terms amounting to 20 months imprisonment for an offence in November 2008 of demanding property with menaces; and offences in January 2009 of assault occasioning actual bodily harm on his then partner, and stalking or intimidating. The transcript shows that his own counsel conceded the assault on his partner was "very serious" and "quite frightening in the reading". He was on a bond in relation to the July 2007 driving offences at the time of these offences.
Family members including Mr Tuatara's father, sister and brother say that he was "getting his life together" before his mother died in November 2008 but he was devastated by her death. He was the youngest child and had been visiting her every day in hospital leading up to her death. He did not accompany the rest of the family to her funeral in New Zealand because he feared he would not be allowed to re-enter Australia on his return. He stayed in Australia alone and went on what he describes as "a huge drinking and drug-taking binge" that only ended when he was gaoled in February 2009.
Mr Tuatara submits that the terms of imprisonment for his most serious offences are closer to the lower, rather than higher, end of the scale and that this is relevant to assessing the seriousness of his offences. Penalties are a consideration but the fact remains that Mr Tuatara has a long and consistent history of serious offences from the age of 14 and has been sentenced four times to substantial periods of imprisonment, reflecting how seriously the courts have viewed his conduct.
[46]
Clause 10.1.2(2) of the Direction provides that factors particularly relevant to assessing risk are:
(a) a recent history of convictions which should be considered as indicating an increased risk of reoffending;
(b) evidence of the extent of rehabilitation; greater weight to be given to independent and authoritative sources; and
(c) evidence that the person has breached judicial orders and other relevant undertakings.
[47]
In 1994, the sentencing judge thought there were "lights at the end of the tunnel" because Mr Tuatara had "come to realise his problems with alcohol"; he had been attending drug and alcohol sessions at gaol and been an active participant; he had also spent a number of sessions with a psychologist who reported that he was "beginning to gain insight into his behaviours".
However, by Mr Tuatara's own evidence, he started drinking and using drugs again on his release in January 1996, and drugs and alcohol were a problem throughout his marriage until his wife left in 2000. Alcohol was a factor in both offences for which he was sentenced in February 2009 and his counsel at that time acknowledged his "pattern of relapsing".
As early as 2001, the sentencing magistrate commented that Mr Tuatara "just will not appear to take any notice of what the courts have to say". Since then, he has continued to breach orders and undertakings. He has 17 convictions for breaching an AVO (some of which apparently relate to male associates, as well as those concerning his female partners) as well as convictions for driving while unlicensed or disqualified.
The sentencing magistrate in April 2006 considered Mr Tuatara had "ingrained beliefs about people he is in relationships with ... and probably towards women generally...". She declined to suspend his sentence, noting that he had breached an AVO in 2001 while on suspended sentence and, since then, had committed even more serious offences. She noted that he had been offered programs, and it had been said he had dealt with his drug and alcohol issues, but he obviously had not; rehabilitation had been tried "many times before" and the prospects of rehabilitation this time were not good. She noted that "the superior courts make it clear that he has had numerous attempts at rehabilitating himself for exactly the same sort of offence".
Since being in Long Bay gaol, Mr Tuatara has entered Ngara Nura, an intensive, voluntary program run in the last six months or so before release to assist inmates deal with alcohol and drug problems. Mr Tuatara started the program in November 2009. Twice in that month, his urine tests returned positive results for cannabis but, since then, he has passed all tests.
The Tribunal heard evidence from Lyn Bond, Mr Tuatara's counsellor in the Ngara Nura program. She acknowledges that he has previously undertaken treatment programs for his addictions to alcohol and cannabis, including in 2003 when he underwent the Ngara Nura program while in gaol. She says, and Mr Tuatara concedes, that he did not take the program seriously in 2003 but she believes he is doing so this time. She also gave evidence that the program has changed since 2003 and, whereas previously it focussed on harm reduction, it now focuses on abstinence.
[48]
(b) Whether Mr Tuatara was a minor when began living in Australia
[49]
The Direction indicates that more risk may be acceptable where the person has spent formative years here and become part of the Australian community.
The Minister's movements records indicate that Mr Tuatara returned to New Zealand for several days in late 1991 to attend a cousin's funeral. They also indicate that he may have gone back to New Zealand around the end of 1988 or early 1989 (the records around this time are incomplete). Mr Tuatara cannot recall a trip around this time which suggests that, if he did go back, it was only briefly. In the end, nothing really turns on this. The respondent does not dispute that Mr Tuatara has been resident in Australia since March 1987 when he was 14.
Mr Tuatara has spent some formative years, and most of his life, in Australia. He has ties to, and become part of, the Australian community. He has spent his working life here; he has family here; his children are here; he has not been to New Zealand since 1991 and he has few, if any, ties there.
[50]
(c) The length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct
[51]
Mr Tuatara committed his first offence eight months after arriving in Australia. His next offence was in July 1991 and, in the meantime, he had been convicted of six counts of burglary while in New Zealand.
[52]
(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
[53]
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 18th 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.
[54]
Mr Tuatara's children are now 15, 13, 11 and 10. They live with their mother and her partner and their child. Mr Tuatara has not seen them since April 2002 when he was released from gaol.
It is not entirely clear why Mr Tuatara has not tried to see his children since 2002. In a written statement prepared for the hearing, he says the AVO obtained by his wife in April 2002 prevented him from seeing his children. That is not correct. The evidence is that, shortly before he was due for release, Mr Tuatara's wife applied to have an existing AVO extended in time and varied to include the children. The AVO was extended but, insofar as it concerned the children, her application was apparently refused because the order was that Mr Tuatara not contact his wife "unless arranging contact with the children or to speak to the children".
There is no suggestion that Mr Tuatara has ever harmed his own, or any other, children. One of his partners acknowledged in a written statement in earlier proceedings that she had never feared for her son's safety, only her own. His immediate family members gave evidence that his relationship with his children was always "excellent" and that he has "awesome" relationships with their own children.
Mr Tuatara says he now wants to be involved with his children and to be a role model for them. In particular, his former wife's family is Italian and he says he can provide an important link to their Maori culture which his former wife and her family cannot provide. He says that, if he cannot reach agreement with his former wife about access to the children, he is prepared to go to the Family Court.
Mr Tuatara submitted in evidence a photograph of his children and their cousins that was sent to him in gaol. He does not know who sent the photograph but maintains it could only have been their mother and that it indicates his children want contact with him. Nothing is known about who sent the photograph or why, and it does not assist us in determining the best interests of the children.
The Direction acknowledges that it is generally presumed, under Australian law, that a child's best interests are served by remaining with its parents. However, this presumption is more than abstract principle. There must be some basis on which a child's best interests can be determined it can be said that contact with a parent is in its best interests. The eight-year period in which Mr Tuatara has not seen his children represents a large part of their lives and no significant evidence as to their best interests has been adduced on his behalf.
[55]
These must be taken into if relevant but generally should be given less weight than primary considerations: ss 11(1) (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;
[56]
(d) whether the person has been formally advised in the past about the possibility of a s 501 decision.
[57]
The Tribunal heard evidence from Mr Tuatara's father, sisters, brother and niece, each of whom said they would be devastated by his deportation. To varying degrees each has maintained some contact with him, including while he has been in gaol, but they appear to lead largely separate lives. None of them is dependent on him for support and there is no evidence that their lives would be particularly disrupted by his deportation. We accept they would be distressed at his removal but this factor does not weigh heavily in his favour.
After 23 years in Australia, Mr Tuatara has very limited links to New Zealand and it would be undoubtedly difficult for him to re-establish himself there.
Mr Tuatara has been warned twice before this time about the risk of deportation if his conduct continued. On 18 April 1996, after his conviction for armed robbery, the Department for Immigration notified him in writing that his conviction rendered him liable to deportation but that the Minister's delegate had decided not to order his deportation on the basis of this conviction. However, he was warned that any further conviction would lead to his deportation being reconsidered and that disregard of the warning would weigh heavily against him in the event that his case was re-opened. A copy of the Government's Deportation Policy was enclosed and Mr Tuatara was advised to study it carefully. He acknowledged its receipt in writing.
The documents before the Tribunal include a letter apparently dated 22 November 1995 from Mr Tuatara to the Minister "in response to your request to show cause why I should not be deported". The date appears to be an error as there is no evidence of a warning issued in 1995, and it is most likely a response to the April 1996 letter. Mr Tuatara expresses his regret and remorse, especially at missing out on the first year of his son's life. He says:
[58]
During my incarceration I have learnt my lesson and also the value of freedom therefore I can assure you it won't happen again. ... I have attended drug/alcohol, anger management, assertiveness training, relaxation techniques, occupational health and safety. .... All I ask for is a chance to prove myself ... and a second chance.
[59]
The second warning came on 2 July 2003 when the Department of Immigration notified Mr Tuatara in writing of the Minister's intention to exercise his personal, non-reviewable discretion to cancel his visa on account of his "substantial criminal history" and "past and present criminal conduct". For reasons which are not clear, the Department subsequently wrote to Mr Tuatara to say that a delegate would make the decision and it would be reviewable.
Mr Tuatara's undated reply was faxed on 25 July 2003. In it he said that his gaol sentence in 2001 was "the lowest point in my life" but his release in 2002 was a "turning point in my life ... there was no looking back". He concluded "I have learned my lesson" - I haven't been so scared in all my life knowing I could be deported and away from my kids is enough to scare anyone. I'm begging you for one last chance."
On 30 October 2003, Mr Tuatara again wrote to the Department from Long Bay gaol to say he was "addressing [his] drug and alcohol problems together with the underlying issues" and referring to the Ngara Nura Therapeutic Program which he was then undertaking. He said:
[60]
"I can clearly see now how my use of alcohol and drugs has directly led to my aggressive behaviour and illegal activities. If given the chance to remain in Australia, I will continue to deal with my drug and alcohol issues through one-on-on counselling as well as regular attendance at Narcotic Anonymous and Alcoholics Anonymous meetings."
[61]
He asked for the chance to be able to make up to his family for the worried he has caused them, and the opportunity to restore his relationship with his children.
[62]
The third warning to Mr Tuatara was issued by letter on 7 October 2009 and led to the current proceedings.
[63]
Mr Tuatara has a long and consistent record of serious offences, including at least four major incidents of violence. He has shown a disregard for the law despite lengthy periods of imprisonment and two previous warnings that his conduct could lead to his deportation. He has expressed remorse in the past and undertaken to change his behaviour but he has continued to offend.
We acknowledge that Mr Tuatara appears to be making genuine efforts to change his behaviour but his history shows a high probability that he will again revert to abusing alcohol or drugs and commit serous, violent offences. There is an unacceptable risk of harm to the Australian community from his conduct in the future, in particular to any women with whom he forms a relationship.
We are not satisfied that any other considerations outweigh the unacceptable risk of harm. In particular, we are not satisfied, on the evidence before the Tribunal that the best interests of Mr Tuatara's children, or other children to whom he is related, require that he remain in Australia. His relationship with his children has been virtually non-existent for eight years and there is no evidence that their best interests would be served by him remaining in the country or, even, that he will be able to see them in future if he does.
We accept that Mr Tuatara's family wish to support him and that they will feel considerable distress at his removal. We acknowledge that he has few, if any, meaningful ties in New Zealand and that it will be very hard for him to establish himself there. It is quite possible that his rehabilitation will be set back, if he is deported. However, we are satisfied that the degree of unacceptable risk that he poses to the Australian community far outweighs all other considerations.
We affirm the decision under review.
[64]
herein of Deputy President Tamberlin and Senior Member Toohey.
Solicitor for the Applicant Lyn Payne, Legal Aid Commission
[67]
Solicitor for the Respondent: Leonard Leerdam, DLA Phillips Fox
Parties
Applicant/Plaintiff:
Goldie
Respondent/Defendant:
Minister for Immigration and Multicultural Af
Cases Cited (1)
(2001) 111 FCR 378
AI Analysis
Outcomerespondent
Disposition:
Tribunal affirmed the Minister's cancellation of the applicant's visa under s 501(2) of the Migration Act 1958; the applicant's review was dismissed.
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.
The primary considerations, each of which is relevant in this case, are set out in clause 10 (1) of the Direction. They are:
(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;
Ms Bond she speaks highly of Mr Tuatara's active participation in Ngara Nura and says he has gained insight and made positive progress. He is a positive role model for other prisoners, he has made contact with his family who are supportive, and he has shown leadership and considerable "courage, motivation and integrity". He has elected to remain in Long Bay gaol, where he can continue his rehabilitation, rather than transfer to Villawood detention centre and, while she acknowledges there can be no guarantee, Ms Bond believes Mr Tuatara's prospects of rehabilitation are good.
Ms Bond gave evidence that Mr Tuatara has been accepted into Glebe House on his release. Glebe House is a three month, live-in, transitional centre for men leaving gaol who have alcohol and drug addictions. Acceptance into Glebe House is conditional on being found suitable to undertake the program. It is highly structured and participants must attend daily Alcoholics Anonymous and Narcotics Anonymous meetings. They must submit to urine or breath testing whenever required, and cannot work for the first two months so that they can concentrate on their recovery. Support is available for 12 months after leaving the program, including placement in suitable accommodation and assistance to find employment, and a weekly Relapse Prevention program and individual counselling if needed. However, participation is voluntary and participants cannot be compelled to continue with the program if they fail to comply or no longer wish to participate.
The Tribunal also heard evidence from John Taylor, a clinical psychologist who conducts an Ex-Inmates Program specifically to deal with recidivism. Mr Taylor has 39 years experience undertaking psychological assessments in criminal matters and has conducted the Ex-Inmates program since 2001. He interviewed Mr Tuatara and administered a range of tests aimed at assessing his likelihood of re-offending and his suitability for the Ex-Inmates program.
Mr Taylor concludes that Mr Tuatara was raised in a dysfunctional and abusive environment and that substance abuse has been a major and continuing problem since he was 14. The results of tests indicated he has "mild anger pathology and an inclination to express feelings of anger in a spontaneous, and at times, poorly modulated manner, particularly if his controls have been weakened through substance abuse".
Despite having little insight before starting the Ngara Nura program, Mr Taylor believes Mr Tuatara has "demonstrated significant change and, as a consequence, has a reduced risk of recidivism due to substance abuse or inappropriate expression of anger. Mr Taylor assesses his risk of violent recidivism as low. On the other hand, he assesses is risk "general" recidivism, meaning all offences including violent offences, as moderate.
Mr Taylor considers that Mr Tuatara will be quite vulnerable when released but that, provided he remains motivated then his prospects for rehabilitation are quite good. In particular, the support of his family, that he has somewhere to live when released, and that he will have opportunities for employment, will mitigate his vulnerability. Mr Taylor has accepted Mr Tuatara as suitable for the Ex-Inmates Program if he chooses to undertake it.
The Minister submits that Mr Tuatara's motivation in undertaking the Ngara Nura program on this occasion must be viewed with scepticism in light of his risk of deportation. In our view, the risk of Mr Tuatara re-offending is high, regardless of his motivation.
If this were the first occasion on which Mr Tuatara had undertaken a rehabilitation program, we would be more inclined to accept his chances of success. However, his long history of repeated breaches of judicial orders and undertakings, combined with his history of relapses makes the risk of re-offending, and engaging in violent conduct, unacceptably high.
We accept that, between March 2006 and November 2008, Mr Tuatara had no convictions for violent offences. His mother's death was clearly a devastating event for him and no doubt played a part in the November 2008 and January 2009 offences. But these offences cannot be viewed in isolation. They continued his history of serious offences, breached orders and relapses. It is relevant that Mr Tuatara knew at the time that he risked deportation if he offended again.