Adamson and Minister for Immigration and Citizenship

[2010] AATA 823

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 823

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/3369

GENERAL ADMINISTRATIVE DIVISION        )

Re             GERALD JON ADAMSON

Applicant

AndMINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

TribunalMs G Ettinger, Senior Member

Date26 October 2010

PlaceSydney

Decision      The Tribunal sets aside the decision under review, and remits the matter to the Respondent for reconsideration with a direction that the discretion in section 501(2) of the Migration Act 1958 (Cth) not be exercised to cancel Mr Adamson’s visa.

……………[sgd]…………………...

Ms G Ettinger
  Senior Member

CATCHWORDS

IMMIGRATION – Visa cancellation visa pursuant to s 501 of the Migration Act 1958 – Applicant fails character test – substantial criminal record – discretion to cancel visa – Minister’s Direction [41] issued under s 499(1) of the Migration Act 1958 – Direction [41] applied – primary considerations – protection of the Australian community – risk of recidivism – offence committed in context of alcohol and drugs – evidence of rehabilitation – Applicant a minor ten years old when he began living in Australia – other considerations – family ties and the nature and extent of any relationship with the Australian community – decision under review set aside.

Migration Act 1958 (Cth) s 501

Direction [no. 41] – Visa refusal and cancellation under s 501

Jones v Dunkel (1959) 101 CLR 298

Re Heyward and Minister for Immigration and Citizenship [2009] AATA 536

Re Pemberton v Minister for Immigration and Citizenship [2009] AATA 692

Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN No 81

REASONS FOR DECISION

26 October 2010 Ms G Ettinger, Senior Member

SUMMARY

1.      Mr Gerald Jon Adamson applied to this Tribunal for review of a decision of a delegate of the Minister for Immigration and Citizenship who cancelled his Class TY Subclass 444 Special Category (Temporary) visa on the ground that he did not pass the character test. It was common ground between the parties at the hearing that because of his major criminal conviction, as defined by section 501(7) of the Migration Act 1958, (the Act), Mr Adamson does not pass the character test pursuant to section 501(6) of the Act. His visa was cancelled pursuant to section 501(2) of the Act.

2.      I was satisfied that by the time of my decision, and weighing up the primary considerations, the overall risk of Mr Adamson re-offending was low, and that he poses a low risk in terms of compromising the protection of the Australian community. I have taken into account the primary considerations and also the other considerations in Direction [41], and am satisfied that I should remit the matter to the Respondent for reconsideration with a direction that the discretion in section 501(2) of the Migration Act 1958 (Cth) not be exercised to cancel Mr Adamson’s visa.

3.      My reasons follow.

ISSUES BEFORE THE TRIBUNAL

4.      It was common ground that Mr Adamson is a person who does not pass the character test in section 501(6)(a) of the Act because he has a substantial criminal record.

5.      I must decide however whether pursuant to Ministerial Direction [41], I should exercise the discretion to set aside the decision of the delegate of the Minister for Immigration and Citizenship, and remit the matter to the Minister for reconsideration with a direction that Mr Adamson’s visa not be cancelled.

RELEVANT LAW AND POLICY

6.      The relevant legislation in this matter is the Migration Act 1958 (the Act), and Ministerial Direction [no. 41] on Visa Refusal and Cancellation under section 501 of the Act.

7. Section 501(2) states that the Minister may cancel a visa that has been granted to a person if the person does not satisfy the Minister that the person passes the character test.

8. 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 section 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. It is common ground that Mr Adamson does not pass the character test because he was a substantial criminal record.

9.      Direction [41] which is made pursuant to section 499 of the Act must be applied when exercising the discretion where a person has been held to fail the character test in section 501 of the Act.

10.     I am mindful that the Objectives of Direction [41] as set out in paragraph 5 are, pursuant to paragraph 5.1(1), to regulate, in the national interest, the coming into, and presence in Australia, of non-citizens.  Paragraph 5.1(2) states that:

In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.

11.     Direction [41] contains a number of primary considerations and other considerations to which the Minister, and therefore this Tribunal, standing in his shoes, must have regard when considering the exercise of the discretion with regard to cancellation of a visa.

12.     The primary considerations in Direction [41] are set out in paragraph 10(1):

…

10.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).

…

13.     The other considerations, where relevant, must be taken into account, but, generally, in accordance with Direction [41], paragraph 11(1), should be given less weight than the primary considerations. The application of both the primary considerations and other considerations are discussed in the paragraphs below.

Request for Mr Adamson to be further examined by a psychiatrist

14.     I note for the sake of completeness that in preparation for the hearing, the Respondent requested that the Applicant undergo a further examination by a psychiatrist nominated by, and paid for, by the Respondent. Mr Adamson declined, and the Tribunal has no power to direct the Applicant to undertake such additional examination.

15.     I note that there was no allegation that Mr Adamson suffered a psychiatric illness, dating back to the first report of Dr Westmore, a psychiatrist, in 2001. I note particularly that Dr Westmore opined that Mr Adamson exhibited some anti-social traits, but did not diagnose him with a personality disorder.

16.     I am mindful of a number of reports on Mr Adamson in the G-documents lodged with the Tribunal (Exhibit R1), the most recent being that of Ms A Woodrow, Senior Psychologist, Therapeutic Manager, CUBIT, Parklea, who also gave oral evidence before the Tribunal.

17.     The Respondent in its Statement of Facts and Contentions referred to Jones v Dunkel (1959) 101 CLR 298, and submitted I should draw an adverse inference from the Applicant’s refusal to undergo further examination by a psychiatrist nominated by the Respondent. I have heard the evidence, and am satisfied to decide the case on what evidence was before me, including the report of Dr Westmore and the written and oral evidence of Ms Woodrow. I draw no adverse inferences from the fact Mr Adamson refused further examination.

BACKGROUND

18.     Mr Adamson, was born in New Zealand on 23 July 1980, and moved to live in Australia with his parents in 1990 when he was ten years old. Mr Adamson attended school, and completed year 10 in Australia. After he left school he worked as a labourer, and also commenced an apprenticeship in carpentry.

19.     In the early hours of 1 November 1999, he committed crimes of sexual assault of a young woman, and asphyxiated her by putting his hand over her nose and mouth to prevent her from attracting the attention of others in the house, thus causing her death. Mr Adamson had been drinking and had taken drugs at a party before the offences were committed, and the young woman, who had also attended the party, was intoxicated, and asleep when he assaulted her. He admitted to the crimes of sexual assault and manslaughter during his trial in April 2001.

20.     Justice Howie in sentencing Mr Adamson on 1 June 2001, stated:

The sentences I am about to impose are intended to reflect the totality of the criminality of the prisoner having regard to his age and subjective circumstances. … I have given the prisoner an overall discount of a little more than 10 per cent taking into account the plea and the consequential reduction in the trauma and some contrition by him. … That is a total sentence of 14 years with a non-parole period of 10½ years.

21.     Mr Adamson is due for parole in the near future. His family attended at the Tribunal hearing, and remain very supportive of him.

22.     As noted above, Mr Adamson’s visa was cancelled by a delegate of the Minister for Immigration and Citizenship on the ground that he did not pass the character test. Mr Adamson has applied to this Tribunal for review of that decision. I moved then to address the Primary Considerations under Direction [41].

PRIMARY CONSIDERATIONS

23.     The relevant primary considerations to consider are the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence, whether Mr Adamson was a minor when he began living in Australia, and the length of time that he has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct. International obligations and the interests of any child are not relevant in this case, because although there was mention made of a young nephew, the son of Mr Adamson’s sister, who could in other circumstances qualify as a primary consideration, no such claim was made. Accordingly I accept this is not a situation where his interests need to be taken into consideration.

Protection of the Australian Community

24.     The primary consideration, protection of the Australian community in Direction [41], has been broken down into consideration of the seriousness and nature of the relevant conduct, and the risk that the conduct may be repeated.

Seriousness and nature of the conduct

25.     With regard to the seriousness of Mr Adamson’s conduct, I note that paragraph 10.1.1(1) states that Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community.  A non-exhaustive list of offences and conduct are given in paragraph 10.1.1.(2).

26.     I am mindful that Mr Adamson was, at the age of 16, convicted in the Bidura Children’s Court of supplying a prohibited drug, and malicious wounding. This occurred in his school playground. He was placed on probation and ordered to perform 100 hours of community service.

27.     In 2001, during his trial for aggravated sexual assaults and murder, he pleaded guilty to aggravated sexual assaults and manslaughter. Assault is an example of a specifically mentioned offence which is considered to be serious, and of course aggravated sexual assault and manslaughter are particularly serious.

28.     I noted that Justice Howie stated at paragraph 61 of his sentencing remarks:

The sentence I am about to impose is what would generally be considered by the courts to be a harsh sentence for an offender as young as the prisoner was when he committed these offences. The sentence for the manslaughter offence will be one of the longest sentences imposed upon a person of the prisoner’s age after a plea of guilty. I have given anxious consideration to the matter because of the prisoner’s youth and the concern the criminal courts must always have to avoid a sentence which will crush a young offender’s incentive and prospects for reform. …

29.     I noted also that Justice Howie stated at paragraph 63 of his sentencing remarks:

The sentences I am about to impose are intended to reflect the totality of the criminality of the prisoner having regard to his age and subjective circumstances. In accordance with Pearce v The Queen (1998) 194 CLR 610, I have attempted to determine sentences appropriate for each the offences and then to attend to the principle of totality by making orders for concurrence and partial accumulation. I have given the prisoner an overall discount of a little more than 10 per cent taking into account the plea and the consequential reduction in the trauma and some contrition by him. I have deducted 2 years from the total sentence I would otherwise have imposed.

30.     I am mindful that the sentences imposed by Justice Howie and upheld in the Court of Criminal Appeal reflect the seriousness of the offences. Notwithstanding, Justice Howie remarked, referring to the juvenile justice report, that Mr Adamson presented as a well adjusted young man, generally of good behaviour and from a caring family. He noted that the family consists of hard working people who at that time visited their son regularly, and that obviously will do what is within their power to support him through the years that he must spend in prison.

31.     In regard to the latter point, I had both written and oral evidence from Mr Adamson senior, Mrs Adamson, the Applicant’s mother, his sister and his aunt Leah. I noted that Mr Adamson’s parents have lived in the same house with their children since they arrived in Australia in 1990, and are in current employment. Although the family stated in evidence that they would support their son and have him live with them, the Applicant is, pursuant to the terms of his parole, prohibited from entering their local area as it is in the proximity of the victim’s family. However his Aunt Leah who told me that she is in employment and lives alone in a two bedroom house with her pets has offered to accommodate the Applicant. His parents said they would consider moving house in order for him to live with them.

32.     Mr Adamson’s parents told me that they visit their son in prison every second week as Mr Adamson works one day a weekend as part of his job, and that hence, in order to fit in with prison visiting privileges, are unable to visit every week.

33.     Mr Adamson senior also referred to changes he had perceived in his son’s attitude over a period time, and said that he had matured since 2003; he was growing up, he said. Mr Adamson senior also said that if his son were not to remain in Australia, they would keep in touch by telephone and visit him, but would not move back to New Zealand as they would not be able to find work there.  He told me the New Zealand family, including his two brothers, would look after the Applicant if he were to be returned to New Zealand.

34.     Mrs Adamson said that she currently speaks to her son every day, and would continue to ring him, if necessary, also in New Zealand. She even indicated that she could move to New Zealand if necessary, although Mr Adamson senior said he would not, because he would not be able to find work there. I noted that work opportunities were the reason fo the family’s move to Australia in the first place.

35.     I noted from their evidence that Mr Adamson’s parents know their son’s previous employer who has offered to re-employ him on release from custody.

36.     I have already noted above that Mr Adamson’s crimes of sexual assault and manslaughter of a young woman are very serious, and am mindful of Justice Howie’s view which he took when sentencing Mr Adamson.

37.     I moved then to consider the second limb relating to the protection of the Australian community, being the risk of recidivism.

Risk that the conduct may be repeated

38.     I have noted from the evidence before me that after the assaults and death of the young woman on 1 November 1999, Mr Adamson did not admit any offences, and that he gave various versions of what occurred at the party to the police, and to others who interviewed him. It was on 18 April 2001, some days into his murder trial which commenced on 9 April 2001, that Mr Adamson admitted to the aggravated sexual assault charges and manslaughter of the young woman. These were accepted, and Justice Howie proceeded to sentence on 1 June 2001.

39.     I noted at paragraphs 58 and 59 of Justice Howie’s sentencing remarks which were also referred to in Mr Watts’ submissions on behalf of the Applicant, that his Honour referred to Dr Westmore’s report on Mr Adamson’s psychiatric state. As noted above, Dr Westmore opined that Mr Adamson, whom he saw in 2001, exhibited some anti-social traits to his personality. He did not however diagnose a personality disorder. He also did not think Mr Adamson required treatment.

40.     Justice Howie stated at [58]:

The prisoner during his second interview with the doctor following the plea of guilty did indicate that he now had some insight into what he had done and accepts responsibility for his actions and their consequences…. Dr Westmore believes he may with maturity lose the aggressive and self-centred tendencies that have resulted in his serious breaches of the criminal law.

41.     Justice Howie continued at  [59]:

The Crown did not submit that I should find that the prisoner was a danger to society so that I should be especially concerned with personal deterrence or preventative detention at this stage in his life. Predictions of dangerousness are notoriously unreliable as the justices of the High Court recognised in Bugmy v The Queen (1990) 169 CLR 525. There is, however, a disturbing aspect of his personality displayed by the two serious offences that have brought him before the courts within a period of three years. Whether anything can be done to address this part of his character or whether it will diminish with maturity remains to be seen but it is a matter which obviously will need to be considered by the parole board in determining whether he is to be released at the end of the non-parole period which I shall specify.

42.     Thus it seems from what Justice Howie found, that Mr Adamson commenced showing certain contrition and acceptance of the seriousness of his criminality back in 2001.

43.     He has of course been incarcerated as a result of the offences he committed, and between 2000 and 2003, also committed six institutional charges which consisted of twice failing urine tests for drugs, and twice refusing to submit to drug testing, because he had used marijuana, and two charges of disobeying a direction. There was no further record of any offences before me, nor any allegation that Mr Adamson has further offended since 2003.

44.     Ms Woodrow, who is a Senior Psychologist and Therapeutic Manager for the CUBIT program at Parklea Prison recorded in her report which was before the Tribunal as part of the G-documents that: Mr Adamson discussed this (being no further offences), as resulting from a significant change in attitude toward custody, those in authority and drug use.

45.     In his oral evidence Mr Adamson told me that he has been working in the food services unit at Long Bay, where he started as a general sandwich hand. He is a leading hand and second in charge in the production area where he oversees 28 of the 42 inmates employed there. Cold food such as lunches for the metropolitan area are produced there, and number more than 9,000 products a day. On certain days of the week the work increases substantially, and many more meals were produced, Mr Adamson said. Mr Adamson explained how he had commenced as a general sandwich hand, become team leader, and was now a leading hand with responsibilities for administrative tasks. Prior to undertaking the CUBIT program which necessitated a move to Parklea which Mr Adamson sought, he said he had been fast tracked to becoming a production manager.

46.     Mr Adamson described the changes he has experienced to the way he sees things, and approaches life as a result of CUBIT. He acknowledged the support his family gives him, and said that he avoided pressure situations. He described how he loves sport, and wants to return to play rugby, whilst acknowledging the drinking and other undesirable cultural aspects associated with the sport. He is confident he has learnt strategies for coping with those.

47.     Mr Adamson said that he had originally used drugs and alcohol to an extent when he was 14/15 years of age, stopped when he was 16 in 1996 due to closer control by his parents, and commenced again at 18 due to the pressures of a relationship break-up.

48.     Ms Woodrow indicated in her report at G-151, a number of courses Mr Adamson has undertaken. They include stress and anger management, alternatives to violence programs, cognitive skills programs, and introduction to drugs and alcohol programs. Mr Adamson also told me that he has done computer and other courses, certificates for which are copied in the G-documents.

49.     The most recent and significant program which Mr Adamson has undertaken is the CUBIT program which he completed between January and June 2010. CUBIT is a custody-based residential therapy program for men who have sexually abused adults and/or children.  Ms Woodrow said that Mr Adamson had completed it in very good time, others may have taken up to 10 months.

50.     Ms Woodrow gave evidence that as part of the CUBIT program she had been in contact with Mr Adamson on a daily basis throughout the time he was enrolled in it. When asked about the risk of recidivism which she also addressed in her written report, Ms Woodrow said that it could never be nil. She pointed out however that Mr Adamson was already aware of the severity of his crime before he came to the program, although she could not say when he became so aware. She indicated that he had undergone a significant change in attitude in his life, his goals, to drugs, to authority, and in relation to family. She saw Mr Adamson as an ambitious person who wanted to do well in life, and indicated he was the community delegate for the CUBIT program during his time at Parklea, which meant he mediated between staff and offenders. She stated at paragraph 15 of her report at G/149 that Mr Adamson was an active member of the general CUBIT community, providing extensive support to other group members both within and outside of the treatment group. He also organised and participated extensively in community activities and at paragraph 24: He described no longer experiencing any urge to be violent and demonstrated use of effective coping strategies to assist in managing stress and uncomfortable feelings.

51.     Ms Woodrow also referred to actuarial risk factors, noting at paragraph 35 of her report that based on his score in the Static-99R method, Mr Adamson was placed in the high risk category relative to other male sexual offenders. She indicated however, that the Static-99R measurements have limitations which will not necessarily reflect the recidivism risk of an individual offender. She said it was not sensitive to the changes in an offender’s circumstances, all the variables in a person’s life that may increase or decrease the actual risk of re-offending. When using an assessment based on both static and dynamic factors, and a guided clinical assessment, Ms Woodrow estimated Mr Adamson to be a nil, or very low risk for violence. She stated that he was not in need of any special intervention or supervision in relation to violent recidivism (paragraph 63).

52.     Ms Woodrow made a number of recommendations at the end of her report including that Mr Adamson attend at the Community-Based Maintenance Programme at Forensic Psychology Services Sydney, and on-going contact with a drug and alcohol psychologist or program. She said that Mr Adamson appeared motivated to attend the community based SMART program, and noted that he might benefit from engaging in relationship counselling to assist with potential relationship issues, and employment.

53.     Ms Hooper submitted that notwithstanding all the support Mr Adamson might have from his family which she acknowledged, and his good intentions, drugs and alcohol were involved in his criminal activity to date, and his behaviour back in the community was untested. She submitted that even if the risk of re-offending was low, the offence Mr Adamson committed caused enormous pain and suffering, and any future offence had the capacity to again cause significant harm to the community. Ms Hooper’s submissions and Statement of Facts and Contentions of the Respondent traversed all the relevant elements of Direction [41], including the primary and other considerations, and came down in favour of affirming the decision of the delegate of the Minister of Immigration and Citizenship.

54.     In coming to a decision regarding the risk of Mr Adamson re-offending, I have taken into account Mr Adamson’s evidence, that of the other witnesses, and in particular the reports of Dr Westmore and Ms Woodrow, and the Respondent’s submissions.

55.     Ms Woodrow was prepared to say there is no risk of Mr Adamson at paragraph 50 of her report although she did not concede that in her oral evidence. However she assessed Mr Adamson’s risk of re-offending as low.  I have noted Ms Hooper’s submission that any offence like the one Mr Adamson committed caused enormous pain and suffering, and would have the capacity to again cause significant harm to the community if he re-offended.

56.     However, as noted above, Dr Westmore did not diagnose a personality disorder, and did not see a need for psychiatric treatment when he examined Mr Adamson in 2001. He did comment that the Applicant exhibited some anti-social traits which I accept from Ms Woodrow’s evidence, have been dealt with.

57.     Mr Adamson committed six institutional offences up until 2003, and has had none recorded since. I am satisfied that Mr Adamson has matured, and that he has been acting responsibly, and with insight into his behaviour. He has held down a job in the food services unit, and progressed to production manager, and he appears to have changed his attitudes to authority. He has been commended for working as a volunteer in various places, (acknowledged in the G-documents).

58.     Mr Adamson has completed a number of courses, the most relevant and recent being the 2010 CUBIT program, which he appears to have completed well.  Ms Woodrow gave extensive evidence about his development in terms of that course, and as noted above, stated that she assessed Mr Adamson as no risk or low risk for re-offending.

59.     I am mindful that he is untested outside the prison system because he was only 20 years old when he was incarcerated 10 years ago. However, I am also satisfied that he has had, and will continue to have, solid family support, and parole supervision, breach of which could lead to further incarceration.

60.     In considering Mr Adamson’s case, I have considered the protection of the Australian community per Direction [41]. I have noted the seriousness and nature of the relevant conduct by Mr Adamson. I am persuaded by the evidence of Mr Adamson, Ms Woodrow and the submissions of Mr Watts, that Mr Adamson has now addressed any anti-social traits which he previously exhibited.

61.     The risk of re-offending according to Ms Woodrow is no risk or low risk. I am mindful that the Minister’s representative has contended that the Tribunal should find that even a reduced risk of re-offending can have serious consequences for the Australian community warranting affirmation of Mr Adamson’s cancellation of visa for its protection. I have noted the authority of Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN No 81 in that regard.

62.     Taking into account all the evidence and submissions, I am satisfied that the risk of Mr Adamson again engaging in criminal conduct in Australia, including sexual assault is low. I am satisfied that paragraph 10.(1)(a), of the “primary considerations”, being the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes of violence has been addressed, and that Mr Adamson, if he is to remain in Australia is more likely than not, to not compromise the protection of the Australian community referred to in paragraph 10.(1)(a). On the evidence before me, I find that the overall risk of Mr Adamson re-offending is low.

Whether the person was a minor when they began living in Australia

63.     Mr Adamson was 10 years old when he arrived in Australia, in 1990. He has attended school and commenced an apprenticeship here.

64.     The Respondent’s submission indicated in the Statement of Facts and Contentions was that this primary consideration favours the Applicant. However, the Respondent submitted that it does not outweigh the first primary consideration, the protection of the Australian community.

The length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct

65.     Ms Hooper did not address the length of time Mr Adamson had been in Australia before committing an offence in her oral submissions. However the Statement of Facts and Contentions of the Respondent referred to Direction [41], and Deputy President Walker who said in ReHeyward and Minister for Immigration and Citizenship [2009] AATA 536: [i]t is not the total period of ordinary residence that is relevant under Direction No 41, however, but the length of time before engaging in criminal activity or activity that bears negatively on the applicant’s character.

66.     The Respondent continued, stating that the Applicant has been ordinarily resident in Australia since the age of 10, and was first convicted of an offence in April 1997, six or seven years after his arrival in Australia. Ms Hooper concluded that whilst this primary consideration favours the Applicant, it did not outweigh the protection of the Australian community.

67.     I am mindful that Mr Adamson committed offences in the grounds of the school which he was then attending, on 12 November 1996.  As noted above, he was first convicted of those in April 1997, which was six or seven years after his arrival in Australia, and when he was still a juvenile.I noted that between the offences committed in the school grounds in November 1996, and the offences committed on 1 November 1999, Mr Adamson attended school, worked as a labourer and commenced an apprenticeship.

68.     I was satisfied from the evidence of Mr Adamson’s parents, and his own evidence, that they are a tightly knit family, and that Mr Adamson has had their support throughout, also that he did not commit other offences during his school years. He also appears to have the confidence of his former employer who wrote to the Tribunal offering to re-employ him on his release. I prefer to consider those as the close ties to Australia which Mr Adamson has, and in that regard, rely also on Deputy President Jarvis in Re Pemberton and Minister for Immigration and Citizenship [2009] AATA 692. That primary consideration therefore favours Mr Adamson.

Relevant international obligations

69. It was common ground that international obligations are not relevant to determination of this matter. The Applicant’s sister has a child, and he therefore, a nephew, but that child does not qualify for any international obligations in the sense intended in Direction [41].

OTHER CONSIDERATIONS

70.     Direction [41] states that other considerations, where relevant, must be taken into account but, generally, should be given less weight than the primary considerations. Relevant considerations in Mr Adamson’s case are his family ties, and the nature and extent of his relationships with those in the Australian community, any hardship which a move away from Australia would cause, and Mr Adamson’s links with New Zealand.

71.     In considering the various sub-paragraphs of paragraph 11, I am mindful that Mr Adamson’s age, and education are not particularly relevant considerations in this case.

72.     I have already noted above that Mr Adamson was born in New Zealand where he lived until 1990, when he moved to Australia, aged 10.  He is now 30 years old, and told the Tribunal he returned to New Zealand only twice, to attend family funerals. He does have uncles, and aunts and cousins in New Zealand. However the family here is close knit. The family gave evidence that they have lived in the same house since they arrived in Australia, and that they would be prepared to move in order to accommodate their son on his release. Meanwhile his aunt is willing, and is able to offer him accommondation in order to take account of his parole conditions. The whole family is in employment, and Mr Adamson’s parents have been visiting him every two weeks since he was incarcerated. His mother told me that they speak on the telephone every day.

73.     Mr Adamson’s family and relationships of significance in Australia are his parents, sisters and aunt. Mr Adamson has an extended family of aunts, uncles and cousins in New Zealand whom he has only rarely seen. I am satisfied that his family situation in Australia weighs well in favour of Mr Adamson remaining in Australia.

74.     I have no doubt that both Mr Adamson and his immediate family in Australia would suffer hardship if he were sent back to New Zealand. I understand also from Mr Adamson senior that work is difficult to find in the family’s home town, and that he would not move back there for that reason. However communications between Australia and New Zealand by way of telephone and email are easy, and travel between the two similarly. Mr Adamson’s mother told me she would stay in touch with her son regardless, and perhaps even move there.

75.     I am mindful also that on his release from gaol Mr Adamson would be under the supervision of his parole officers, and that should any breaches of his conditions occur, he would be in a very difficult situation with regard to remaining in Australia. His resistance to drugs and alcohol have not been tested outside the prison system. However he has had no offences in prison recorded since 2003, and has taken on responsible work and social roles within the prison system.

76.     I have taken into account the other considerations, and consider that on balance they favour the discretion not being exercised to cancel the Applicant’s visa, but am mindful that these are given less weight than the primary considerations. I  am satisfied that the protection of the Australian community would not be compromised by Mr Adamson remaining in Australia.

CONCLUSION

77.     My first duty has to been to weigh up the primary considerations, to which I am required to give greater weight. Not surprisingly Mr Watts argued for Mr Adamson to be able to remain in Australia, while Ms Hooper contended that in determining whether to exercise the discretion to not cancel Mr Adamson’s visa, the primary consideration of the protection of the Australian community, and in particular the risk that Mr Adamson may re-offend weigh heavily in favour of the cancellation of Mr Adamson’s visa.

78.     I have considered both arguments, and the submissions of both parties in the paragraphs above. On the evidence before me, including that of Ms Woodrow, who opined that Mr Adamson had made significant gains in attitudinal change and rehabilitation, and was a low risk to re-offend, my conclusion is that the overall risk of Mr Adamson re-offending is low. One cannot ever be absolutely certain, but then that is not the standard to which I must be satisfied.

79.     In regard to the other primary considerations, I have noted the Respondent’s submission that because he began living in Australia in 1990 at the age of 10, this primary consideration favours the Applicant.  The Respondent’s submission was however that it does not outweigh the first primary consideration, the protection of the Australian community.

80.     Ms Hooper also made a submission in regard to the length of time Mr Adamson had been in Australia before engaging in criminal activity, noting that he has been ordinarily resident in Australia since the age of 10.  She also noted that he was first convicted of an offence in April 1997, six or seven years after his arrival in Australia, agreeing that this primary consideration favours the Applicant, but submitting also that from the Respondent’s point of view it does not outweigh the protection of the Australian community.

81.     I have noted the evidence in regard to both other relevant primary considerations. The first is that Mr Adamson was a minor, 10 years old, when he arrived to live in Australia, and that he has only visited New Zealand fleetingly for family funerals since. The next is the length of time he was ordinarily resident in Australia prior to engaging in criminal activity, which was, at age 15 or 16, committing offences in the school grounds on one occasion, some six years after arriving. I have considered the facts surrounding both those primary considerations, and how they apply. I am satisfied that they favour Mr Adamson remaining in Australia.

82.     I am satisfied to the requisite standard then, that the protection of the Australian community, and consideration of the other primary considerations favour the non-cancellation of Mr Adamson’s visa so that he can remain in Australia. 

83.     In terms of the relevant other considerations to which I am required to give less weight; in my view, Mr Adamson’s family ties are the most relevant of the other considerations, and favour Mr Adamson remaining in Australia.  As noted above, the family is close, they are all in employment, and they have informed me that they have lived in the same house since they arrived in Australia in 1990. One of Mr Adamson’s sisters, and his aunt Leah are the only family members I have heard about who live separately from the parents. The aunt has told me that she is willing and able to have Mr Adamson move into her house on his release, and Mr Adamson’s parents have expressed willingness to move house in order to accommodate their son.

84.     Having weighed up these considerations, I am satisfied that the discretion to not cancel Mr Adamson’s visa should be exercised in his favour, and I remit the matter with the relevant direction for reconsideration by the Respondent.

DECISION

85. The Tribunal sets aside the decision under review, and remits the matter to the Respondent for reconsideration with a direction that the discretion in section 501(2) of the Migration Act 1958 (Cth) not be exercised to cancel Mr Adamson’s visa.

I certify that the 85 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member

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

Associate

Date of Hearing  5 October 2010
Date of Decision  26 October 2010
Applicant’s Counsel                  Mr M Watts

Applicant’s Solicitor                   Mr J Chan, M J Woods & Co.
Solicitor for the Respondent     Ms K Hooper, DLA Phillips Fox