Abbott and Minister for Immigration and Citizenship
[2008] AATA 1130
•18 December 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1130
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/4982
GENERAL ADMINISTRATIVE DIVISION ) Re ROYAL ABBOTT Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date18 December 2008
PlaceMelbourne
Decision
The decision under review is set aside and in substitution IT IS DECIDED the visa held by the applicant should not be cancelled.
(Sgd) John Handley
Senior Member
IMMIGRATION – application to cancel visa of 56 year old male journalist residing in Australia since 1984 – heroin addicted – travelled to South Africa to return with 1.4kgs of cocaine to extinguish debt to his supplier – threats to him and his family if he refused – prior motor car offence only – sentence of seven years minimum four and a half to be served – applicant rehabilitated and was drug free whilst imprisoned – will be under supervision – many character references of persons who will support him – likely return to employment – decision set aside
Migration Act 1958 (Cth) s 499, s 499(2A), s 501, s 501(6) and s 501(7)
Re Msumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192
Re SAAC and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1209
Re Glusheski and Minister for Immigration and Multicultural Affairs [2000] AATA 717
REASONS FOR DECISION
18 December 2008 Mr John Handley, Senior Member 1. The applicant applies to review a decision made by a delegate of the Minister on 15 October 2008 to cancel his Class TY, Sub-Class 444 Special Category (Temporary) Visa.
2. The applicant is 56 years of age having been born on 30 November 1952. He is a citizen of New Zealand. He first arrived in Australia in March 1988 when on holidays but returned in 1989 and has subsequently resided permanently. In August 1995 he was convicted in South Australia of driving an unregistered vehicle and fined $200.00. In May 1999 the charges of cultivation, possess and use cannabis were found proved and a fine of $900.00 was imposed but without conviction.
3. The matter which has brought the applicant to the attention of the Minister was a conviction on 14 October 2004 in the County Court at Melbourne of importing a prohibited import, cocaine, for which he was sentenced to a period of seven years imprisonment with a non parole period of four years and six months. The applicant was then represented and pleaded guilty.
4. The hearing of this review was convened on 12 December 2008. Mr Gilbert appeared on behalf of the applicant and Ms Linacre appeared on behalf of the respondent. The applicant gave evidence. An extensive proof of the applicant's evidence in the form of a Statutory Declaration was received as were eight Statements in support of the applicant's character and a medico-legal report completed by Mr Bernard Healey, a clinical psychologist, who assessed the applicant at the Maribyrnong Detention Centre on 2 December 2008.
5. The decision to cancel the applicant's visa was made pursuant to s 501 of the Migration Act 1958 (the Act). The applicant concedes, properly, that he does not pass the character test because he has been sentenced to a term of imprisonment of 12 months or more (refer s 501(6) and (7)).
6. This Tribunal is bound by the provisions of s 499 of the Act. At s 499(2A) the Tribunal must comply with any Direction issued by the Minister. Relevantly the Minister has issued Direction 21. By reason of the applicant failing the character test Part 2 of Direction 21 need only be considered.
7. Under Part 2 there are three primary considerations (paragraph 2.3) being the protection of the Australian community and members of the community; the expectations of the Australian community and in all cases involving parental or other close relationship between a child and children and the person under consideration the best interests of the child or children. The third consideration is not relevant in the present application because paragraph 2.13 of the Direction 21 confines the relationship to children under the age of 18 years. The relationship between the applicant and his mature age children will be discussed later.
8. The first primary consideration of protection of the Australian community has a number of sub parts which must be considered in the exercise of the discretion. Those sub parts are:
(i)The seriousness and nature of the conduct;
(ii)Likelihood that the conduct may be repeated (including any risk of recidivism); and
(iii)General deterrence ‑ the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons.
These parts will be considered having regard to the evidence, the documents that have been read and the submissions which have been given by the representatives.
9. The prelude to the primary consideration records that reasonable steps will be taken by the Government to protect the Australian community from actions of criminals and the Government is mindful to protect the safety of vulnerable members of the community such as children and young people at risk. It is worthy to note that the prelude specifically includes a reference to drugs being of particular importance in the consideration of protecting vulnerable members of the community.
10. Under the sub part of seriousness and nature of the conduct, there is specific mention at 2.6 (a) of conduct regarded by the Government as being very serious, being the importation of illicit drugs. Additionally, it is recorded that persons who embark on drug related crime for financial gain have shown a callous disregard for the insidious effects of illicit drugs on the health and welfare of Australia's young people and those that seek to profit from importing drugs irrespective of whether they are motivated by their own need for those drugs should be regarded as extremely serious offenders. Further it is recorded that in terms of being a deterrent to other criminals and to protect Australian society, crimes involving drug trafficking puts lives of young Australians at risk and that this should be viewed as completely unacceptable. Especially, it is recorded that offences involving illegal drugs of dependency or addiction such as heroin are of particular concern.
11. I have little doubt that the overwhelming majority of the Australian community would regard importing drugs into Australia as reprehensible conduct. Scarcely a day passes without reference being made either by electronic or print media to arrests being made from those dealing in illicit drugs or the effects upon persons by consumption of illicit drugs, whether it be a direct affect on their health or by the consumption of the drugs they have acted to put themselves or others at risk.
12. Having regard to the sentencing remarks of Judge Gullaci in the County Court it is noted that the quantity of cocaine being imported by the applicant was close to the quantity which would give rise to a charge of trafficking. The evidence before His Honour indicated the drugs had a substantial street value and it would appear on the submissions made by the applicant's counsel that he would obtain a profit.
13. I confess some confusion having read the sentencing remarks and having heard the applicant's evidence as to whether he was carrying heroin or cocaine but at the end of the day the applicant was carrying a considerable quantity of an illegal drug which was fortunately detected and confiscated by either Customs officials or members of the Australian Federal Police (AFP) at Melbourne Airport.
14. Paragraph 2.7 of Direction 21 compels consideration of the extent of the sentence imposed for the crime because it will amount to an indication of the seriousness of the offence.
15. The applicant had one prior conviction and it was for a motor car offence imposed many years before 2004. Judge Gullaci referred to a conviction for the marijuana offence but it would appear from the documents lodged by the AFP at Attachment E of the T documents that the applicant was fined with respect to possession of marijuana and a conviction was not imposed. Nonetheless, His Honour imposed a sentence of seven years gaol which His Honour said must be imposed as a sentence that is of a severity appropriate in all the circumstances. His Honour took account of a number of matters which were in favour of the applicant and concluded that he should serve four years and six months imprisonment before becoming eligible for parole. If that were to occur, His Honour decided that the parole should be undertaken by community service for the remainder of the seven year period.
16. A sentence of seven years, even if only four years and six months is served in detention, is a considerable period of time for a person who was then 54 years and who had a relatively unblemished criminal history. To be removed from the community for that period of time does indicate to me, as His Honour also indicated, that the crime committed by the applicant was particularly serious. It would also appear from reading His Honour's decision that the sentence was less than it might have otherwise been but for a number of features of the applicant's conduct and his character which were viewed favourably.
17. Paragraph 2.8 permits consideration of relevant mitigating factors. I accept that the applicant was in debt to his dealer. I also accept that his behaviour at or about that time was erratic and he was considerably under the influence of heroin which he was consuming in considerable quantities on a daily basis. I accept that the applicant was of the belief that his debt would be waived in the event that he acted as the person carrying the drugs. I also accept that the applicant was of the belief that he was scared and feared for himself, his children and his grandchildren. I note in addition to the above features that His Honour also found the applicant was a person of low self esteem, that he was depressed and psychologically vulnerable and a guilty plea was entered early in the criminal proceedings thereby avoiding delay and costs to the community.
18. When all matters are considered under this Part and allowing for those features with respect to the applicant's character, conduct and motivation, I am satisfied that the offence committed by the applicant should be regarded as very serious and considerable weight should be attached to it.
19. The second part of the primary consideration is whether there is a likelihood that conduct may be repeated including any risk of recidivism. The expressed intention of the Government recorded in Direction 21 at paragraph 2.10 is to have regard to a person's previous general conduct and total criminal history as being highly relevant in assessing the likelihood of an offence and the risk of recidivism.
20. But for this offence the applicant virtually does not have a criminal history. Driving without a licence and not having third party insurance while serious, does not equate with the severity of the offence that has given rise to these and the previous proceedings in the County Court. The applicant has been before a Magistrates' Court in Victoria for cultivation, possession and use cannabis but he was fined only without a conviction being imposed.
21. I think that it is most unlikely that the applicant's conduct would be repeated and I think the risk of recidivism is very small. The offence committed by the applicant was for a number of reasons referred to above. He has not ever trafficked or been a courier in illicit drugs. Persons who have a habit of $1,000.00 per week being expended on drugs (as was the circumstances of the applicant) might fall into the conduct of persons who do traffic or who are couriers, if only to meet their debts, but fortunately the applicant did not descend to that level. Indeed it was fortunate that he was detected at Melbourne Airport because I have some doubts, as did the applicant, that delivering these drugs to his supplier would necessarily have waived his debts and caused him to be free of risk.
22. From the evidence heard, the applicant has had four and a half years to contemplate the seriousness of his past behaviour and has actively rehabilitated (refer later). I do think that the applicant is now capable of making a positive contribution to the Australian community and I, and those persons who spoke on his behalf, have that reasonable expectation.
23. On balance, whilst the risk of repeating the offence and the risk of recidivism does exist it is at a level so small that I would attach virtually no weight to this part of the discretion.
24. The remaining part of the primary consideration is the general deterrence by visa cancellation or visa refusal in the prevention of like offences by other persons.
25. I have always struggled with this Part in considering weight, if any, in the decisions made in previous applications. Put simply it is virtually impossible to answer this part of the discretion. I do not know of any survey or report published by any person or agency which would point to whether persons who hold a visa or are applying for a visa would be deterred from commission of a crime if they knew of other persons having had a visa refused or cancelled when convicted for commission of crimes.
26. In broad terms I would have thought all persons wanting to enter Australia or persons who are in Australia and holding a visa would be aware that there is a significant risk of detection by the commission of crime. I understand that persons wanting to enter Australia or who are presently in Australia on a visa understand that entry is by permission and on terms. In those circumstances I would have thought it likely that the commission of a crime could result in detection and punishment with the consequence of cancellation or refusal of a visa. In those circumstances the conviction and punishment of the applicant may deter others from committing similar offences and or discourage other persons from engaging in conduct undertaken by the applicant which was detected and for which he was convicted and sentenced.
27. On balance I would attach some weight to this Part of the primary consideration.
28. The second primary consideration is the expectations of the Australian community.
29. Direction 21 records that the Australian community would expect non citizens to obey Australian laws. However, the applicant has breached domestic laws and has been convicted of offences. It would be my view that members of the Australian community would agree that punishment of the crime committed by the applicant was appropriate but it does not follow that members of the Australian community would be of the view that it would be appropriate to cancel the visa held by the applicant. If members of the Australian community were aware of the applicant's offence, and that is likely to be only by electronic or print media, if at all, it is unlikely that they would have become intimately aware of the applicant's circumstances as has occurred by these proceedings. On balance it would be my view that the expectation of the Australian community would be of the application of relevant laws on the one hand recognising the appropriateness of punishment for the commission of the offence but any other consequence, for example and no less relevant, an application to cancel a visa should be approached with humanity and by regard to the entirety of the applicant's personal circumstances.
30. Paragraph 2.17 of Direction 21 permits an examination of other considerations but which are not to be regarded as primary considerations.
31. During the hearing the applicant called a number of persons to give evidence in support of his application to set aside the decision under review. All of those persons had lodged a Statutory Declaration encompassing their evidence. On a number of occasions objection was taken that the evidence being given offended s 500(6H) of the Act because that evidence had not been set out in a written statement given to the Minister at least two business days before the Tribunal convened the hearing.
32. After some discussion with both representatives and by regard to a number of Tribunal decisions, I was satisfied, and there was no demurrer, that regard could be given to any explanation or amplification of the material contained within the Statutory Declarations. As Deputy President McMahon decided in Re Msumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192 strict adherence to s 500(6H) could make any oral hearing ineffective because a witness would be constrained to reading his or her statement only.
33. It was agreed that any new information given in evidence by a witness which was not by way of amplification or explanation of existing material would likely offend s 500(6H). It was also agreed that the distinction between amplification or explanation and new material may be difficult to discern. (Refer also Re SAAC and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1209).
34. The applicant has resided in Australia since 1989 and but for the period of incarceration he has been employed as a journalist. He has family members residing here being his son, his sister and his brother. His daughter, another sister and another brother reside in New Zealand.
35. In evidence the applicant agreed that he first used drugs in New Zealand when he was about 18 years of age and when at University. His explanation for doing so was it was the 70's. Between the age of 18 and 35 years he said that he did not consume drugs and was employed in New Zealand. Later when he moved to Australia he did use heroin a couple of times but later he came under the negative influence of his supplier and despite attempts to abstain there appears little doubt that the applicant did become a heroin addict. He had previously experienced addiction to bootleg morphine following a serious motor car accident in South Australia some years earlier (when he suffered extensive incapacitating injuries) and it would appear, consistent with the submissions of the respondent, that when the applicant was enduring episodes of stress or anxiety, he did either return to drugs or use drugs at a greater rate.
36. In approximately 2004 the applicant had incurred considerable debt to his supplier and so far as the County Court Transcript is concerned it would appear that approximately $20,000 was outstanding for drugs previously supplied. It appears from the evidence that the applicant was approached by his supplier to travel to South Africa and return with a quantity of drugs believed to be heroin. The applicant complied but was detected upon arrival at Melbourne Airport. The drugs were carried in a body belt which had been supplied to him by an agent of the supplier in Johannesburg.
37. Prior to departing Australia to travel to South Africa the applicant said that he was extremely anxious and afraid for himself and his family. He said he became withdrawn from friends and although he remained employed, he was using heroin up to 10 times per day. He said he was terrified of the threats that had been made to him and his family and suffered nightmares. He was ashamed, disorientated and was in turmoil. He said he had no time to reflect on the seriousness of his conduct and did not consider the consequences of bringing drugs to Australia which might find their way onto the local market. Despite having a wide circle of friends and work colleagues, he did not confide in them because he was ashamed. He did not consider asking his friends or family members for a loan of monies to pay off his debt.
38. I do not accept, as was submitted, that by reason of his prior drug consumption not being known to or detected by his close colleagues, that resumption of the habit would again be undetected. I am satisfied that the applicant's colleagues and friends will now be vigilant and observe, although discretely, any behaviour which may be of concern. But I think it is unlikely anything will be observed. The applicant's rehabilitation and the risk of offending parole supervision will be sufficient to ensure there will be continuing abstinence.
39. By way of further explanation of the shame the applicant said that he experienced, he said that his conduct whilst taking heroin and especially concerning the events of 2004 offended and undermined all principles held by him concerning ethical behaviour, motivation, loyalty to his friends, honesty as a citizen and commitment to his employer.
40. Despite having a history of personal drug use there is no evidence at all of any manufacture or trafficking of drugs of addiction. I am satisfied that the applicant was trapped in a spiral of mounting debt in order to meet his personal habit and I am also satisfied that he feared for the safety of himself and his family members in the event that he did not comply with his supplier.
41. I am impressed that the applicant has remained drug free whilst imprisoned as evident by the reports of urinalysis and breath testing found at Attachment G of the T‑documents and by his evidence. I am also impressed that the applicant has been able to enjoy abstinence from drug abuse from the comfort of being reacquainted with the Buddhist faith which he previously practised. Mr McGlone, the Buddhist Chaplain of the Lodden Prison confirmed that the applicant has engaged in a number of discussions with him and participated in meditation and teaching sessions. Although the applicant participated in a seven day drug rehabilitation program at Port Phillip Prison before being transferred to Lodden Prison, I am satisfied that despite the short duration of that program the applicant made good progress and has remained drug free, largely because of the influence of the program and what he learnt from it. In evidence the applicant said that he had regarded drugs as abhorrent during that program and during the course of it a light bulb went on. He acknowledged that it would be difficult to believe that having been seriously drug addicted prior to imprisonment that he could abstain within one week. He said that he regarded the course as being his road to Damascus.
42. Mr Bernard Healey a Consultant Clinical Psychologist assessed the applicant over a period of three and a half hours on 2 December and provided a comprehensive report. Mr Healey has been a Psychologist for 48 years and is well known, certainly in Victoria, as being highly experienced and competent in the assessment of persons appearing before Courts and Tribunals.
43. He concluded his report as follows:
On the basis of all the foregoing it was clear that this man had undergone significant rehabilitation in a lengthy term of imprisonment, complying with prison routines, undergoing relevant courses and maintaining contact with his family, and a strong resolve never to use illicit drugs again. In view of his high level of intellect and the absence of major psychological or emotional disturbance, it is this examiner's opinion that he would not relapse into drug abuse, and therefore does not pose a risk to the Australian community. Because he feels he has let his son down in recent years, he would like to make amends by providing him with support; he would also have the support of other close family members in this country.
44. Mr Healey said in his experience it would be unlikely that a person who had been drug free for more than four years to revert to a drug habit. He was reassured that the applicant did want to resume a relationship with his son. He was also impressed that the applicant understood his obligations under a parole order which would apply for two and a half years, especially that a breach of it would mean a return to prison. He said that younger persons might be at risk of relapse but in his experience the risk of a 56 year old person relapsing to drug abuse would be small. He noted that the applicant would be almost 60 at the conclusion of his period of parole. He said that the applicant had told him, and he accepted, he wanted to pursue his life as a free citizen, to be constructive and to have a sense of belonging. He said it was vital that the applicant also enjoy the support of his friends and his family (refer later).
45. In cross examination he agreed that the applicant had displayed a pattern of drug use especially when subjected to physical and emotional triggers but he thought that he had dealt with stress whilst in gaol, he had resisted drugs and demonstrated that he was able to cope with stress. He was also impressed by the applicant's conduct whilst in gaol especially because he was a first time prisoner. Mr Healey was not troubled by the applicant having undergone a rehabilitation program of one week duration only because in his experience the likelihood of success depends on the receptivity of the individual. He noted that Judge Gullaci in the County Court thought that the applicant had excellent rehabilitation prospects. Mr Healey also noted that the applicant had developed strategies to permit him to abstain from drugs in the future in the event that he was exposed or at risk.
46. Judge Gullaci in the County Court made a number of findings consistent with the evidence that was heard in these proceedings, namely that the applicant had been using heroin when he committed the offence, that he was in debt to his supplier, that payment of that debt motivated him to carry out the offence and he was fearful of a number of persons causing harm to his family and to himself. His Honour was impressed that the applicant entered an early guilty plea, that his longstanding personal drug addiction caused the accrual of debts that in turn drove him to commit the offence for which he was convicted, that he had not previously faced a term of imprisonment, he had no prior drug related convictions, was supported by family and friends and other professionals, that he was motivated to remain drug free, that he had excellent prospects of rehabilitation and would benefit by supervision from the Adult Parole Board.
47. I think the Minister and the Australian community can be reassured by the applicant's supervision by the Adult Parole Board in Victoria. That is to say, if Victorian citizens can rely on the supervision, so also could the Minister (refer Re Glusheski and Minister for Immigration and Multicultural Affairs [2000] AATA 717 at paragraph 28).
48. I am also impressed by the sentiments expressed by the applicant in his Statutory Declaration lodged in these proceedings and in his response to the Notice of Intention to consider cancelling the visa found at Attachment L of the T‑documents where he has expressed embarrassment and shame in the eyes of colleagues and associates, his abhorrence of drug culture and drug consumption, his intention to permanently abstain from drug consumption and his intention to return to employment.
49. Of particular significance in these proceedings were the number of persons who attended the hearing to support the applicant. Many had given statements in the form of a Statutory Declaration prior to the commencement of the hearing. Five persons gave evidence in support. Many also visited the applicant when he was in Loddon Prison and obviously have a high opinion of him. None knew of his prior drug habit although one or two persons had a suspicion but by reason of their relationship largely being confined to the workplace and the applicant enjoying a superior employment position, they did not make enquiries of him. Nonetheless the applicant has without reservation notified persons of his addiction and has not sought to hide his abhorrence at his prior conduct and his disgust for drug abuse.
50. A number of themes emerged from all of the statements lodged and from the evidence of the persons called namely, they confirmed that he was committed to return to employment and to be enrolled either at the RMIT University or the Victorian College of the Arts, he had acknowledged his regret at his past conduct and had accepted the consequences of his behaviour and the risk of offending into the future, that they would support him and offer accommodation should he need it, that it was their belief that the risk of recidivism was now negligible and the event which gave rise to his conviction was an aberration. In terms of his prior work experiences he was regarded as being a talented journalist, hard working, dedicated and a mentor of junior employees. Most of the persons who gave evidence had known him for many years prior to his conviction in 2004.
51. I accept the evidence of the applicant that whilst he is a senior journalist, the opportunity to work in that profession in New Zealand would be very limited especially having resided in Victoria since 1984. Apparently the applicant is well known here, he has many contacts and both he and his witnesses, many of them are also journalists, thought he would not have difficulty being re-employed.
52. The above issues attract considerable weight in favour of the applicant.
53. On balance, I am satisfied, for all the above reasons, that considerable weight should attach this part of the discretion sufficient to tip the balance in favour of the decision being set aside.
I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr John Handley, Senior MemberSigned: Grace Carney, Personal Assistant
Date of Hearing 12 December 2008
Date of Decision 18 December 2008
Counsel for the Applicant Mr G Gilbert
Solicitor for the Applicant Ms L Stewart, Clothier Anderson & Associates
Solicitor for the Respondent Ms A Linacre, Clayton Utz
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