AHMED MOHAMED IGAL and MINISTER FOR IMMIGRATION AND CITIZENSHIP

[2009] AATA 673

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 673

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/2938

GENERAL ADMINISTRATIVE DIVISION		)
Re		AHMED MOHAMED IGAL

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Deputy President S D Hotop

Date7 September 2009

PlacePerth

Decision The Tribunal sets aside the decision under review and, in substitution therefor, decides that the discretion to cancel the applicant’s visa under s 501(2) of the Migration Act 1958 (Cth) not be exercised in this case.

..........[sgd S D Hotop]........

Deputy President

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – Special Category visa – applicant a citizen of New Zealand – applicant first arrived in Australia in April 2002 when aged 18 years – applicant committed first offence in Australia in June 2002 – applicant convicted of numerous offences committed in period 2002–2007 including unlawful wounding and aggravated armed robbery – applicant not formally warned by Department that visa liable to be cancelled – applicant’s visa cancelled – applicant does not pass character test – discretion to cancel applicant’s visa – primary considerations and other relevant considerations – protection of Australian community favours cancellation of visa – best interests of child and other considerations favour non-cancellation of visa – best interests of child and other considerations outweigh protection of Australian community – applicant’s visa should not be cancelled – decision under review set aside

Migration Act 1958 (Cth), s 501

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

REASONS FOR DECISION

7 September 2009 Deputy President S D Hotop

introduction

1. Ahmed Mohamed Igal (“the applicant”) has applied to the Tribunal for review of a decision of a delegate of the Minister for Immigration and Citizenship (“the respondent”), dated 18 August 2008, cancelling his Class TY, Subclass 444 (Special Category) visa under s 501(2) of the Migration Act 1958 (Cth) (“the Act”). The applicant was, however, not properly notified of that decision until 26 June 2009, and he lodged his application for review with the Tribunal on 29 June 2009.

The Factual Background

2.      The applicant was born in Somalia in March 1984 and he subsequently acquired citizenship of New Zealand.  He first arrived in Australia on 15 April 2002.  He subsequently departed Australia on 25 November 2002 and returned to Australia on 11 October 2004.  He next departed Australia on 5 January 2005 and returned to Australia on 12 February 2005.  He has remained in Australia since that date.

3.      The applicant’s recorded criminal history in Australia is as follows:

Court	Conviction Date	Offence and Date of Commission	Count	Result
Perth Court of Petty Sessions	25.07.2002	No Motor Drivers Licence 8.06.2002	1	$150 (Fine) Disq Hold/Obt MDL 3 Mths
Perth Court of Petty Sessions	25.07.2002	Excess 0.08% 8.06.2002	1	$600 (Fine) Disq Hold/Obt MDL 4 Mths
Perth Magistrates Court	31.10.2005	No Motor Drivers Licence 28.03.2005	1	$150 Fine Disq Hold/Obt MDL 3 Mths
Perth Magistrates Court	31.10.2005	Fail to Stop when Called Upon 28.03.2005	1	$200 Fine Disq Hold/Obt MDL 3 Mths (Conc)
Perth Magistrates Court	31.10.2005	Excess 0.08% 28.03.2005	1	$800 Fine Disq Hold/Obt MDL 6 Mths (Conc)
Perth Magistrates Court	31.10.2005	Reckless Driving 28.03.2005	1	CBO 18 Months CSO 100 Hrs Disq Hold/Obt MDL 12 Mths (Conc)
Perth Magistrates Court	31.10.2005	Refuse to Supply Name and Address/Provide False Name and Address 12.12.2004	1	$150 Fine Disq Hold/Obt MDL 3 Mths (Conc)
Perth Magistrates Court	31.10.2005	No Motor Drivers Licence 12.12.2004	1	$150 Fine Disq Hold/Obt MDL 3 Mths (Conc)
Perth Magistrates Court	31.10.2005	Driving Under the Influence 12.12.2004	1	$800 Fine MDL Canc & Disq  9 Mths
Perth Magistrates Court	31.10.2005	Wilfully Mislead Police 06.07.2002	1	$300 Fine Disq Hold/Obt MDL 3 Mths (Conc)
Perth Magistrates Court	31.10.2005	Excess 0.05% 06.07.2002	1	$100 Fine Disq Hold/Obt MDL 3 Mths (Conc)
Perth Magistrates Court	31.10.2005	No Motor Drivers Licence 06.07.2002	1	$150 Fine Disq Hold/Obt MDL 3 Mths (Conc)
Perth Magistrates Court	31.10.2005	Give False Personal Details to Police	2	18 Months CBO (Adult) Supervision 100 Hrs Community Work
Perth Magistrates Court	31.10.2005	Disorderly Behaviour in Public	1	$500 Fine
Perth Magistrates Court	31.10.2005	Damage	1	18 Months CBO (Adult) Supervision 100 Hrs Community Work
Perth Magistrates Court	31.10.2005	Breach of Bail	3	18 Months CBO (Adult) Supervision 100 Hrs Community Work
Perth Magistrates Court	22.03.2007	Unlawful Wounding 26.03.2006	1	Intensive Supervision Order - 18 Months (Supervision) 120 Hrs Community Work
Perth Magistrates Court	22.03.2007	Breach of CBO (Order of 31.10.2005) 26.03.2006	5	Community Work 120 Hrs Intensive Supervision Order – 18 Mths
Supreme Court of Western Australia	02.10.2007	Aggravated Armed Robbery 31.05.2007	1	Imprisonment: 2 Yrs 8 Mths
Supreme Court of Western Australia	02.10.2007	Breach of ISO (Order of 22.03.2007) 31.05.2007	5	No Penalty
Supreme Court of Western Australia	02.10.2007	Breach of ISO (Order of 22.03.2007) 31.05.2007	1	Imprisonment: 8 Months (Cumulative)
Perth Magistrates Court	17.01.2008	Aggravated Burglary with Intent in Dwelling 17.05.2007	1	Imprisonment 6 Months (Cumulative)

4.      The applicant’s recorded criminal history in New Zealand comprises 13 convictions in the period from 13 May 1999 to 18 February 2002, the most serious of which is a conviction of the offence of assaulting a person with a blunt instrument for which a sentence of 4 months’ imprisonment was imposed.

The Legislation

5. Section 501(2) of the Act provides:

“ The Minister may cancel a visa that has been granted to a person 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 the person passes the character test.”

The “character test” is defined in s 501(6) of the Act which specifies various alternative circumstances in which a person does not pass the “character test” within the meaning of that section. In the present case, the relevant circumstance is that specified in para (a) of s 501(6), namely, “the person has a substantial criminal record (as defined by subsection (7))”. Section 501(7) specifies five alternative circumstances in which, for the purposes of the “character test”, a person has a “substantial criminal record”. In the present case, the relevant circumstance is that specified in para (c) of s 501(7), namely, “the person has been sentenced to a term of imprisonment of 12 months or more”.

The Ministerial Direction

6. In reviewing the delegate’s decision in this matter pursuant to s 500 of the Act, the Tribunal is required, by s 499(2A) of the Act, to comply with a direction given by the respondent under s 499(1) of the Act. The relevant direction as presently in force, namely, “Direction [no 41] – Visa refusal and cancellation under s 501” (“Direction [41]”), was given by the respondent on 3 June 2009 and commenced on 15 June 2009. Part A of Direction [41]:

“ provides directions on the application of the character test ... set out in section 501(6) of the Act;”

and Part B:

“ provides directions on the primary and other considerations that are relevant to determining whether it is appropriate in the specific circumstances of the case to exercise the discretion to refuse to grant or cancel the visa. …”

Direction [41] will be relevantly referred to in more detail later in these reasons.

The Evidence

7.      The evidence before the Tribunal comprised:

·     the “G Documents” (G1 – G17, pp 1 – 114) lodged by the respondent (Exhibit R1);

·     statutory declaration of the applicant, dated 21 August 2009 (including attachments A, B and C) (Exhibit A1);

·     statutory declaration of Rahwa Glezgi Areaya, dated 24 August 2009 (Exhibit A2);

·     statutory declaration of Ruun Ahmed Awad, dated 20 August 2009 Exhibit A3); and

·     the oral evidence of the applicant, Rahwa Glezgi Areaya and Ruun Ahmed Awad.

The applicant’s evidence

8.      The applicant tendered in evidence his statutory declaration, dated 21 August 2009, as follows:

“1.      I am 25 years of age and was born at Mogadishu in Somalia …

2.…

3.My mother is Ruun Ahmed Awad.  My father is Mohamed Igal.  My parents had five children.  They are:

(i)Abdirisak Mohamed Igal (brother), aged 30 years;

(ii)Nimo Mohamed Igal (sister), aged 26 years;

(iii)Ahmed Mohamed Igal (me), aged 24 (sic) years;

(iv)Muno Mohamed Igal (sister), aged 22 years; and

(v)Abdulahi Mohamed Igal (brother), aged 20 years.

4.When I was about 6 years old, my father left the family home and did not return.  At that time we were living in Mogadishu.  My mother took care of us.

5.In 1991, my mother, my siblings and I fled Somalia because of the civil war.  We went to Kenya and sought refuge in a UNHCR Camp Otanga outside Mombassa.  We were in the camp for 2 years.  When we were there, my mother met her second husband Mohamed Abdulahi Adan.  My mother married her second husband and they had 3 further children. 

6.In August 1993 the New Zealand Government granted my mother, her second husband, my siblings and I Humanitarian visas.  We went to New Zealand as refugees. 

7.The family lived in Hamilton but in 1997 my mother and her second husband separated.

8.My mother has cousins who live in Perth and she was not happy in New Zealand. In February 2002, my mother and my siblings (with the exception of my eldest brother Abdirisak) left New Zealand and came to Perth in Western Australia to live permanently. In April 2002 Abdirisak and his wife and child and I came to live permanently in Perth.

9.In 2005 my mother’s second husband came to Perth from New Zealand and he has regular contact with my half-siblings.

10.I met Helenet Rahwa Glezgi Areaya in 2002. We became close and formed a relationship. Rahwa was living with her brother and her sisters in Glendalough and was attending the Aranmore Catholic College in Leederville.

11.In November 2002, I left Australia and went to Kenya. I went with my mother because her brother Abdulahi Awed had died at the Hagadera refugee camp in northern Kenya. We went for his funeral and to make arrangements for his family. I accompanied my mother as an adult male family member. My mother returned to Perth after 2 weeks, but I remained in Kenya because my father was living there and I wanted to re-establish a relationship with him. He was living in Mandera in northeast Kenya. I stayed with him. I did not know how long I was going to stay in Kenya, I had no definite plans and I thought that when it was time to go I would realize this and leave.

12.My father had another family in Kenya from another relationship, so I had a number of half-siblings in Kenya. I developed quite good relationships with them while I was there. My eldest half-brother was Zayad Igal, who I got on with very well.

13.My mother supported me financially. She sent me between US$100-150 per month. I remained in Kenya and did not go into Somalia. I maintained regular contact with my family in Australia by telephone. I did not keep in contact with Rahwa. I considered my relationship with her over.

14.In 2004 I was having difficulties with the Kenyan authorities renewing my visitor’s visa. My mother was also not happy with me remaining in Kenya and was urging me to return to Australia. On 11 October 2004 I arrived back in Perth from Kenya and I returned to live at the house of my mother.

15.The day after I returned to Perth I received a telephone call from Rahwa, who was in Sydney. Shortly afterwards she returned to live in Perth and we resumed our relationship. I did not tell my mother about my relationship with Rahwa. We were not married and because my mother is very religious I knew that she would be upset by me having a sexual relationship with Rahwa.

16.On 5 January 2005 my mother and I travelled to Saudi Arabia to do the Hajj. My mother had wanted to perform the Hajj for many years. She needed to have an adult male family member to accompany her. She asked me to come with her and I agreed. We were in Saudi Arabia for about 1 month and we did the Hajj. We went to Mecca and Medina. My mother’s sister Aisha Awet lives in Jeddah and we stayed with her for 10 days. My mother and I returned to Perth on 12 February 2005. My mother paid the cost of us performing the Hajj.

17.Rahwa and I continued our relationship through 2005 and 2006.  Eventually Rahwa became pregnant and [in] November 2006 gave birth to our daughter Samera Mohamed.  I took Rahwa to King Edward Memorial Hospital when she went into labour and was present at Samera’s birth. 

18.Prior to going to Kenya I committed a number of traffic offences. After I returned from Kenya I committed further offences on 12 December 2004 and on 28 March 2005. On 31 October 2005 I appeared in the Perth Magistrates Court where I pleaded guilty to those matters. I was fined and placed on a Community Based Order (‘CBO’) for 18 months, with 120 hours of community service work. My motor drivers licence was also disqualified.

19.On 26 March 2006 I was arrested and charged with unlawful wounding. I could not get bail and was kept in remand custody for about 4 ½ months from 26 March 2006 until 11 August 2006. I was eventually released on bail and on 22 March 2007 in the Perth Magistrates Court I pleaded guilty to the charge of unlawful wounding and to breaching the CBO and was placed on an Intensive Supervision Order (‘ISO’) for 18 months and ordered to do 120 hours of community service work. Most of my offending has been caused by my excessive use of alcohol. I started drinking alcohol when I was about 15 years old and it has been a problem for me. I tend to binge drink and become very intoxicated and that is when I have committed offences. It is against my family’s religious beliefs to drink alcohol and I have always consumed alcohol away from the family home. When I was younger I engaged in experimental use of cannabis, but I have not used it for a long time. Until May 2007 I had not used methylamphetamine or MDMA (ecstasy).

20.Some weeks after I appeared in court I received news from Kenya that my eldest half-brother Zayad Igal had been killed in Mogadishu. He had been caught in the middle of a gun battle between some clans and shot in the head. This greatly upset me and I started to drink alcohol heavily.

21.On 17 May 2007 I committed an aggravated burglary. The circumstance of aggravation was that I was in company with another person. Police arrested me at the scene of the burglary. I was subsequently released on bail, but on 31 May 2007 I committed an aggravated armed robbery. The circumstance of aggravation was that I threatened to kill a person during the robbery. Police arrested me at the scene of the robbery. I was refused bail and kept in custody until I appeared in the Supreme Court of Western Australia at Perth on 2 October 2007. On that date I pleaded guilty to the armed robbery and was sentenced to imprisonment for 2 years and 8 months for the armed robbery. I was also sentenced to 8 months imprisonment cumulative for the ISO breaches.

22.On 17 January 2008 in the Perth Magistrates Court I was sentenced to 6 months imprisonment cumulative for the aggravated burglary.

23.I was held at the Hakea Remand Centre from when I was on remand prior to being sentenced. After I was sentenced I was held at the Acacia Prison. When I finished my sentences I was transferred to the Perth Immigration Detention Centre. During all of the time that I was in custody I was receiving regular visits from Rahwa, Samera and my family.

24.‘Attachment A’ is a schedule of my prison visits and my telephone calls when I was at Acacia Prison.

25.‘Attachment B’ is a schedule of my visits at the Perth Immigration Detention Centre.

26.Some weeks ago I made an FOI request of the Hakea Remand Centre for a schedule of my prison visits and contacts, but as at the date of this statutory declaration I have not received this.

27.I love Rahwa and Samera very much. I believe that my relationship with them has strengthened since I have been in custody. It has been very difficult for Rahwa to keep in regular contact with me but she has done it. While I have been in custody I have come to realize how much I love Rahwa and Samera and how much I have to lose if we break apart. I have also realized how badly I have hurt them by being locked up and by making their lives so difficult. I realize now that I was very selfish before I was imprisoned in not considering how my foolish actions would impact on them. Rahwa has greatly supported me since I have been in prison.

28.I love my family very much and I am very close to my mother. They have also supported me greatly since I have been in prison. They have regularly visited me.

29.I believe that I have changed since I have been in prison. Being gaoled in October 2007 was the first time I had been sentenced to a term of imprisonment. I have had a lot of time to consider how stupid and foolish I have been. In prison I made an effort to abide by the rules and be a model prisoner. I think I succeeded in that because I kept out of trouble and did not commit any disciplinary breaches. I successfully completed a number of courses while I was in prison.

30.It will be impossible for Rahwa and Samera to come to New Zealand if I have to return there. Rahwa has a sister and a brother who are both greatly reliant upon her in Perth and she has to stay here for them. My mother and my siblings have lived in Perth since 2002 and it is their home. My siblings are studying here and cannot return to New Zealand

31.It will cause great hardship to me, Rahwa and Samera if I am removed from Australia. It will also cause great hardship to my family if I am removed from Australia.

32.‘Attachment C’ is a copy of the full transcript of the proceedings before McKechnie J in the Supreme Court of Western Australia on 2 October 2007.

…” (Exhibit A1)

9.      In his examination-in-chief the applicant affirmed the contents of his abovementioned statutory declaration and gave the following additional evidence:

·     while in prison he worked in horticulture and he completed “Cognitive Skills” and “Moving on from Dependency” courses:

·     his partner and their daughter visited him “almost every week” while he was in prison;

·     those visits were contact visits of 1½  hours’ duration and during those visits his daughter sat on his lap and he hugged and played with her;

·     during those visits he spoke to his daughter in English;

·     his daughter calls him “papa”;

·     when each visit was over, his daughter cried because she did not want to leave;

·     while he was in prison his relationship with his partner and daughter became stronger because he realised how selfish and foolish he had been;

·     his being in prison affected his ability to be a father to his daughter because he was not able to give her full support or to be there for her birthdays;

·     he believes he has changed his ways and realises that he has a big responsibility ahead of him, and he wants to be a good father, partner and son and a good role model for his siblings;

·     if he is allowed to stay in Australia he intends to live with his partner and daughter and assume a full-time parental role;

·     being in prison has had a deterrent effect on him and made him realise that it is not the place for him;

·     while he was in prison he had time to think about his mistakes and what is important to him in life;

·     he has now set goals for himself – he wants to give up alcohol, build a future for his daughter, obey the law and pay his taxes;

·     he is ashamed and remorseful for what he has done and he realises that he has affected people’s lives so that they no longer feel safe;

·     he will try his very best not to re-offend and he believes that he will not re-offend;

·     while he was in prison he told certain people not to visit him because they were people who were only interested in drinking and with whom he had previously got into trouble and they no longer mattered to him and he did not want anything more to do with them;

·     he has never received a formal warning from the Immigration Department about the possible cancellation of his visa and he was not previously aware that criminal activity could lead to the cancellation of his visa;

·     if he is removed to New Zealand his partner and their daughter would not be able to go with him because his partner cares for her brother and sister who are mentally ill and she herself is very ill with a kidney infection and she was in hospital earlier this year and will need to have an operation.

10.     In cross-examination the applicant gave the following evidence:

·     he arrived in New Zealand in 1993 when he was about 9 years old and he went to school there, and he and his family members became New Zealand citizens in 1997;

·     he was happy living in New Zealand with his family;

·     he came to Australia because his family had moved here;

·     after he returned to Australia from Saudi Arabia in February 2005 he became settled in Australia living with his family and he found a job;

·     he has no relatives or friends in New Zealand and is not aware of any Somali community there;

·     he acknowledges that he has a long criminal record for a 25-year old, having commenced offending when he was 15 years old, and that he has committed some serious offences;

·     he has had a problem with alcohol since he was 15 years old, he has experimented with marijuana but it has not been a problem for him, and the occasion of his armed robbery offence in May 2007 was the first time he had used amphetamines;

·     he has learned from his mistakes, he now has a better picture of the way of life in Australia and the law and he intends to respect the law and not to break the law in the future;

·     he realises that alcohol is not the solution and he has made a promise to his family and to himself not to go back to the alcohol way of life;

·     he has started an alcohol rehabilitation course while in Immigration Detention;

·     being in prison for 2 years has made him realise that that is no way to live and he does not want to go back to prison;

·     he acknowledges that his behaviour has had a negative impact on his daughter’s life and would do so in the future if he were to re-offend.

The evidence of Rahwa Glezgi Areaya

11.     The applicant tendered in evidence a statutory declaration of Rahwa Glezgi Areaya, dated 24 August 2009, as follows:

“1.      My full name is Rahwa Glezgi Areaya.I was born at Nazret in Tigray Province, Ethiopia [in] 1986. 

2.…

My background

3.My father was Glezgi Areaya.  My mother is Thuga Habtamryem.  My parents had 4 children. They are:

(i)… (my brother), aged 32 years;

(ii)… (my sister), aged 25 years;

(iii)Rahwa Glezgi Areaya (me), aged 22 years; and

(iv)… (my sister), aged 20 years.

4.My father died in Ethiopia when I was very young. My mother did not remarry. When I was about 2 or 3 years old my brother … left the family home. Later [he] left Ethiopia and came to Australia on a Humanitarian visa.

5.My mother raised my 2 sisters and me by herself. In 1998 we left Ethiopia and went to Sudan.  We were in Sudan for about 2 years. In 2000 we were granted Offshore Humanitarian visas and came to Australia.  My brother … sponsored us. 

6.When we came to Australia we came straight to Perth to live. My mother, my brother, my 2 sisters live in Perth. With the exception of about one year when I lived in Sydney, I have lived in Perth since I came to Australia.

7.I arrived in Australia when I was 13 years old.  When I arrived here I did not speak English.  I spoke Amharic and a bit of Arabic.  I enrolled at the Aranmore Catholic College in Leederville. I was a student there for about 2 years. Later I went to the Cyril Jackson Senior High School, where I studied until I left school halfway through Year 11.

My relationship with Ahmed Igal

8.I first met Ahmed Mohamed Igal in 2002.  I was living with my brother and my two sisters in Glendalough and was attending the Aranmore Catholic College in Leederville.

9.When I met Ahmed, he was living with his mother and family in Mirrabooka. We were girlfriend, boyfriend for a few months time but then he went to Kenya in about November 2002. He did not know how long he was going there for and initially I thought he would be there for a short time. However he didn’t return and I did not hear from him for a long time and I was not sure if the relationship was over. 

10.In January 2004 I moved to Sydney and lived there.  When I was in Sydney I heard that Ahmed had returned to Australia. That was in October 2004. I re-established contact with him, returned to Perth and we resumed our relationship

11.I was living in Maylands where I stayed for several months.  After this I moved and rented a house in Victoria Park and we were living together there for about 6 months. Ahmed’s mother did not know I was having a relationship with him. I did not meet her and I believe that he did not fully reveal our relationship because we were not married and this was against the Moslem religion. Ahmed was living with me but would stay at his mother’s house about twice a week.

12.I got pregnant and had a baby girl called Samera Mohamed who was born [in] November 2006 at King Edward Memorial Hospital in Subiaco.  Ahmed was there when the baby was born.  He took me to the hospital when I went into labour. I was in hospital for about 3 days and went home with Ahmed.  We stayed at South Terrace in South Fremantle. We were sharing with my sister …  Eventually we moved to Maylands. We stayed in several addresses in Maylands.

My relationship with my brother … and my sister …

13.In 2008 I moved to a house next door to my sister …  I need to be living next to her because I am very close to her and she suffers from schizophrenia. In 2008 she was admitted to a psychiatric hospital after she attempted to commit suicide. I was the one who found her and called the ambulance. She was in hospital for a couple of months. She was admitted to a psychiatric hospital twice after that. She is on medication. She has an after care nurse who visits her. 

14.I see … every day because I am her main support person. My mother does not support … and the burden of supporting … has fallen on me.

15.My brother … also has schizophrenia. ... He is single and is on the disability pension. He first got ill after I came back from Sydney. That was in about 2005. He has been to Graylands psychiatric hospital about 3 times.

16.… is also on aftercare and they gave him a house next to me … which is a 3 or 4-minute walk from where I live (sic).  He is sharing with another man who is also on aftercare. I see … every day. He relies upon me a lot for support. Again my mother does not provide any support for my brother and it has fallen on me to support him.

Ahmed’s time in custody

17.Ahmed was arrested in 2007 for armed robbery. He was at Hakea Remand Centre after he couldn’t get bail and I went to see him every week.  He would call me from there and [we] were in contact every day on the telephone.

18.Ahmed was later sentenced to imprisonment for armed robbery and unlawful wounding.  I went to the Supreme Court when he was sentenced. I was very upset with this.  He was sent to Acacia Prison in Wooroloo after he was sentenced.  I went to see him there every week.  I brought my daughter Samera to see him there.  His family used to go with me sometimes.

19.Ahmed is now at the Immigration Detention Centre at the Domestic Airport.  I visit him there regularly with Samera.  I speak to him on the telephone every day.

20.I have a close emotional bond with Ahmed. My daughter has a very strong bond with him. This has developed as she has grown older. Samera has been visiting Ahmed regularly since he has been in custody. Usually I take her to visit him. If I cannot then Ahmed’s mother has taken her to see him.

21.If Ahmed has his visa cancelled and has to go to New Zealand I will not be able to go there as well. I cannot go to New Zealand because my family are all here.  I am very close to my sister.  I support both my sister and brother.  I moved to my present address because I wanted to support them and if I have to go to New Zealand I won’t be able to offer support to my sister and brother. 

22.It will cause great hardship to Samera if Ahmed has his visa cancelled. It will also cause great hardship to me and to Ahmed.

23.It will be impossible for me to visit Ahmed in New Zealand on a regular basis with Samera. I am currently on the parenting payment and I do not work. I do not have the financial resources to go to New Zealand regularly. In addition I have to be in Perth to support my sister and my brother.

24.Ahmed’s mother helps me a lot with Samera.  I go to her house and she helps with babysitting.  I have been to hospital and Ahmed’s mother has been helping me with Samera. I have got kidney stones. I am on medication. When I was in Royal Perth Hospital as an in-patient for a week in June 2009 Ahmed’s mother looked after Samera. They have a very close bond. On 24 August 2008 (sic) I have to have an ultrasound and I will probably have to have an operation for the kidney stones soon.

…” (Exhibit A2)

12.     In the course of her examination-in-chief Ms Areaya affirmed the contents of her abovementioned statutory declaration and gave the following additional evidence:

·     when she and her daughter visited the applicant in prison the applicant would spend the 1½ hours playing with his daughter, and every 3 months when he was allowed a family visit they would go to the park;

·     during those visits their daughter would sit on the applicant’s knee and play and draw pictures;

·     their daughter was always happy when she visited the applicant and cried when she had to leave;

·     their daughter calls the applicant “papa”;

·     she has never been to New Zealand and it would not be easy for her there;

·     she is worried about their daughter and she does not want her to grow up without a father.

13.     In cross-examination Ms Areaya gave the following evidence:

·     when she commenced her relationship with the applicant she was aware that he had committed crimes in New Zealand and that he had an alcohol problem;

·     before their daughter was born the applicant was okay, but he changed after she was born;

·     the applicant used to stay out at night drinking with his friends and he would get into trouble;

·     if her brother and sister had no problems she would probably go to New Zealand with the applicant;

·     if the condition of her brother and sister improved, she would not leave Australia;

·     she does not want to take her daughter out of Australia;

·     if the applicant stays in Australia, he will live with her and their daughter;

·     if the applicant starts drinking and getting into trouble again, she will leave him.

The evidence of Ruun Ahmed Awad

14.     The applicant tendered in evidence a statutory declaration of Ruun Ahmed Awad, dated 20 August 2009, as follows:

“ …

3.I was born at Mogadishu in Somalia [in] April 1965. 

4.When I was 15 years old in Somalia I married Mohamed Igal.  My first husband and I had 5 children.  They are:

(i)Abdirisak Mohamed Igal (son) now aged 30;

(ii)Nimo Mohamed Igal (daughter), now aged 26;

(iii)Ahmed Mohamed Igal (son), now aged 24 (sic);

(iv)Muno Mohamed Igal (daughter), now aged 22 and

(v)Abdulahi Mohamed Igal (son), now aged 20.

5.When my youngest son Abdulahi was about 6 months old, my husband left me.  We were then living in Mogadishu. I was left on my own with 5 children.

6.In 1991 I was forced to flee Somalia with my 5 children because of the civil war.  We fled to Kenya and sought refuge at the UNHCR camp at Otanga outside Mombassa (closed in 1995). 

7.The children and I were in the camp for 2 years.  In the camp I met Mohamed Abdulahi Adan.

8.We married in the camp.  Mohamed and I then had 3 children.  They are:

(i)Sharmaker Abdulahi, now aged 16 years;

(ii)Sadig Abdulahi, now aged 13 years; and

(iii)Salebaan Abdulahi, now aged 11 years.

9.Sharmaker was born in the refugee camp.  In August 1993 the New Zealand Government granted all of us Humanitarian visas and we went to New Zealand as refugees. 

10.When we went to New Zealand we lived in Hamilton.  We all lived as one family.  We were in an immigration centre for several months outside Auckland and then were re-settled into a house in Hamilton.

11.In 1997 my eldest son Abdirisak married and moved away to live with his wife. Also in 1997 my second husband and I separated when he left the home and the 7 other children remained with me. In February 2002 my children and I (with the exception of Abdirisak and Ahmed) left New Zealand and came to Perth in Western Australia. In April 2002 Ahmed and Abdirisak, his wife and son also came to live in Perth.

12.The reason the children and I came to Perth was because I had cousins who were living in Perth and I had a social network here.  Things were very difficult for me in New Zealand.  I had no family there and felt isolated.  The children, Abdirisak and his family and I have lived in Perth since then.  In 2005 my second husband came to Perth from New Zealand and he has regular contact with my three younger children.

13.In November 2002 Ahmed and I left Perth and went to Kenya. When we were there we attended the funeral of my brother Abdulahi Awed who had died at the Hagadera refugee camp in northern Kenya. Ahmed accompanied me as an adult male family member. I returned to Perth after 2 weeks. However Ahmed decided that he wanted to remain in Kenya because his father was living there and he wanted to re-establish his relationship with him. Ahmed did find his father who was living in Mandera in northeastern Kenya.

14.While Ahmed remained in Kenya I supported him financially. I sent him between US$100-150 per month. We maintained contact regularly by telephone. Ahmed was having some difficulties with the Kenyan authorities renewing his visitor’s visa. In about September 2004 I told Ahmed that I was not happy with him being in Kenya and I asked him to return to Perth. On 11 October 2004 Ahmed returned to Perth and came to live with me.

15.In January 2005 Ahmed and I travelled to Saudi Arabia to do the Hajj. I wanted to do the Hajj but I needed to have a male family member to accompany me and Ahmed agreed to come with me. We were in Saudi Arabia for about 1 month and we did the Hajj. We went to Mecca and Medina. My sister Aisha Awet lives in Jeddah and we stayed with her for 10 days. Ahmed and I returned to Perth on 12 February 2005. I paid the cost of Ahmed and I attending the Hajj, which was about AUS$6,000.

16.My son Abdirisak lives with his wife and 5 children …

17.My daughter Nimo is married and lives with her husband and young son …

18.My daughter Muno is single and works as a nurse …

19.My son Abdulahi is single and is a second commerce (sic) student …

20.Muno and Abdul live with me  …

18.I also have care of my three sons Sharmaker, Sadig and Salebaan all of whom go to school.

19.My son Ahmed is currently in the Perth Immigration Detention Centre.  He was sentenced to imprisonment in 2007 for various offences including aggravated armed robbery.

20.Prior to Ahmed being imprisoned, he was living with me and although I did not know it at the time, was also living with his girlfriend. Rahwa Areaya.  I did not now about Ahmed’s relationship with Rahwa until I found out that Rahwa was pregnant with her daughter Samera Mohamed, born [in] November 2006. 

21Ahmed is not married to Rahwa and it is against our Muslim religion for him to be having a relationship with her and having children outside of marriage.  I think that Ahmed was frightened to tell me about it because he thought I would be upset. 

22.I didn’t know that Samera had been born until she was about 2 months old.  Ahmed and Rahwa brought the baby round to my house and showed her to me.  Since then I have developed a very close relationship with Samera. I love her very much. I also have a close relationship with Rahwa.

23.In May 2007 Ahmed was arrested and put into Hakea Remand Centre in relation to various charges against him.  Eventually he pleaded guilty to those and was sentenced to a period of imprisonment. 

24.I have a close relationship with Ahmed and love him very much.  I kept in regular contact with him. I was very upset when Ahmed was arrested and imprisoned. I was constantly worried and was always thinking about him.

25.After he pleaded guilty Ahmed was sent to Acacia Prison.  I contacted him there on the telephone numerous (sic).  I wasn’t able to visit him as often as previously.  In January 2008 I was involved in a motor vehicle accident and suffered a broken leg and head injury.  I was an in-patient in Sir Charles Gairdner Hospital for one week and was an outpatient for about 6 months after that.  I had to undergo regular physiotherapy and was not able to travel and did not have as much mobility as I had prior to the accident.

26.After Ahmed was released from prison he was sent to the Perth Immigration Detention Centre. I have visited him there. When I have visited him I have usually had his daughter Samera with me. I have kept in regular contact with Ahmed since he has been at the Perth Immigration Detention Centre.

27.Ahmed has no family in New Zealand. All of his family are in Western Australia.

28.I do not intend to return to New Zealand because I have nothing to return to there.  All of my family are here.  My three younger boys are enrolled in school.  My son Abdul and my daughter Muno are also studying at University and my second husband is living in Australia too. My married son and daughter live with their families in Perth.

29.I have had the opportunity of observing Ahmed with his daughter.  He has a very close relationship with her.  I know that he loves her very much and that she is very close to him.

30.I know that Rahwa has family in Western Australia.  She has never been to New Zealand.  I know that she has a brother and sister who have mental health problems and she is largely the main support in their lives.  For that reason she would be unable to leave Australia and return to New Zealand.

31.I ask the Tribunal not to cancel Ahmed’s visa. Since his sentence of imprisonment I have noticed the change in his character.  I know that he does not want to return to New Zealand and I believe that it is unlikely he will commit offences in the future given the fact that the stakes are very high and that he knows that if he does continue to break the law, he will not only end up in jail but will then also have his visa cancelled and he will be removed from Australia and return to New Zealand.

32.If Ahmed has to return to Australia (sic) this will cause great hardship to Samera because she will not have the love and support of Ahmed. It will also cause great hardship to Ahmed because he will be separated from his child and from his partner and his family.

…” (Exhibit A3)

15.     In her examination-in-chief Ms Awad affirmed the contents of her abovementioned statutory declaration.

16.     In cross-examination Ms Awad gave the following evidence:

·     the applicant is her son, she needs his support, and she wants him to stay in Australia;

·     she cannot go to New Zealand as she is a single mother and is responsible for looking after her young children;

·     if the applicant went to New Zealand she would keep in contact with him but she would not send him any money although, because he is her son, his problems are her problems;

·     the applicant has done something very bad and she feels deeply sorry for his actions but he has now changed for good.

Additional material

17.     The Tribunal will refer to certain material contained in the G Documents and in Exhibit A1 in the course of the following analysis.

Analysis

Application of the “character test”

18. By reason of the fact that the applicant has been sentenced to a term of imprisonment of more than 12 months – namely, on 2 October 2007 (see paragraph 3 above) – the Tribunal finds that the applicant has a “substantial criminal record”, as defined in s 501(7) of the Act, and that, by reason of s 501(6)(a) of the Act, he does not pass the “character test”.

19. It follows from that finding that the discretionary power to cancel the applicant’s visa pursuant to s 501(2) of the Act is enlivened in this case.

Should the discretionary power to cancel the applicant’s visa be exercised in this case?

20.     Part B of Direction [41] comprises paragraphs 8 – 11.  Paragraph 9 states:

“(1)     … decision-makers must take into account the primary considerations in every case.  The other considerations (defined in paragraph 11) should be taken into account where relevant.

Note:The primary considerations are set out in paragraph 10 of this Direction.  The other considerations are set out in paragraph 11.

(2)Decision-makers should only take into account directly relevant considerations.

…”

The primary considerations

21.     Paragraph 10 sets out the primary considerations as follows:

“ 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).”

Protection of the Australian community

22.     Paragraph 10.1 states:

“ 10.1      Protection of the Australian community

(1)Due consideration is to be given to the Government’s objectives set out in Part 1, paragraph 5 of this Direction.

(2)The factors relevant to assessing the level of risk of harm to the community of the person’s entry or continued stay include:

(a)  the seriousness and nature of the relevant conduct; and

(b)  the risk that the conduct may be repeated.”

23.     The objectives set out in Part 1, paragraph 5 are as follows:

“ 5.1        Objectives

(1)The objective of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens.

(2)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.

(3)The Government is especially mindful to protect the safety of the community’s more vulnerable members, including minors, the elderly and the disabled.”

The seriousness and nature of the relevant conduct

24.     Paragraph 10.1.1(1) states:

“ 10.1.1    The seriousness and nature of the conduct

(1)Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community.  Those crimes involving violence, particularly against vulnerable persons (such as minors, the elderly and the disabled), are especially abhorrent to the whole community.”

Paragraph 10.1.1(2) lists (in paras (a) – (m)) “examples of offences and conduct that are considered serious”, including (relevantly):

“(d)     grievous bodily harm, reckless injury, assault and aggravated assault (including abduction);

(e)robbery;

…

Note:For the purposes of paragraph 10.1.1.(2) of this Direction, the list of offences and conduct is non-exhaustive.

For the purposes of paragraph 10.1.1(2)(e) of this Direction, robbery is defined as the direct taking of property (including money) from a person (victim) through force, threat or intimidation. ‘Armed robbery’ involves the use of a weapon capable of causing bodily harm, such as, but not limited to, a firearm, knife or club.”

Paragraphs 10.1.1(3) and 10.1.1(4) relevantly state:

“(3)     The sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community.  Due regard must be given to the extent of the person’s criminal record, including

(i)the number and nature of offences;

(ii)the period between offences; and

(iii)the time elapsed since the most recent offence.

(4)     The following factors are also to be considered:

(a)any relevant information, including, but not limited to, evidence from independent and authoritative sources in respect of the person such as judicial comments in an individual’s case, professional psychological reports, pre-sentence reports for the courts, parole assessments, victim impact statements and similar sources of authoritative information or assessment;

(b)any relevant factors the person provides as mitigating factors;

…”

25.     The circumstances of the offences of unlawful wounding and aggravated armed robbery which the applicant committed on, respectively, 26 March 2006 and 31 May 2007, and for which he was sentenced on, respectively, 22 March 2007 and 2 October 2007 (see paragraph 3 above), are described in the Hakea Prison Immigration Report, dated 25 October 2007, as follows:

“ On 26^th March 2006, Igal and the victim were at the Base Nightclub in Northbridge.  Igal was by himself and the victim was accompanied by a male person.  Five months earlier Igal and the victim were involved in an altercation which resulted in the victim’s motor vehicle being damaged.  On seeing Igal, the victim approached him to discuss payment for the damage to his car.  Igal agreed to accompany the victim and his male associate to a nearby street where the car was located.  An argument developed with Igal stating he would not be paying for the damage before pushing the victim.  The victim informed Igal he was calling police.  Igal withdrew a cylindrical deodorant can from his rear pocket, raising it above his head before bringing it downward in a forceful motion, striking the victim above his lip causing a deep laceration.  Igal then turned and fled, running into a tree and falling to the ground.  Igal then picked up a broken glass bottle, ran towards the victim and then threw the bottle at him.  The victim raised his right hand to deflect the bottle, resulting in four deep cuts to his fingers and palm.  Igal then left the scene.  The victim located Police and identified Igal who was sighted nearby.  Police conveyed Igal to Curtain (sic) House for further questioning, before charges were laid.

On 22^nd March 2007, Igal was placed on an Intensive Supervision Order for the above offence.  He breached this order when he committed the following offence.

On 31^st May 2007 Igal entered a Coles Express Service Station in West Perth.  He had his hand concealed in his right hand pants pocket when he approached the console operator, stating he had a gun and demanding cash.  Igal threatened to kill the console operator before snatching a personal alarm from the employee’s neck, which Igal then placed in his pocket.  Igal stole $333.90 from the till before stealing a plastic bag containing tobacco and cigarettes valued at $1582.99.  As Igal left the premises he told the console operator that if police were called he would return and kill him.  Police observed Igal leaving the service station.  He then fled the scene but was arrested by Police a short distance away, still in possession of the stolen property.” (G11, p76)

26.     In sentencing the applicant on 2 October 2007 McKechnie J said:

“ … There is no question that the armed robbery committed was a very serious offence even though you were caught a short time later.

The fact that you committed it while under the influence of illicit and other drugs no doubt in contravention of your religion excuses in the sense that they explain it but not excuses in the sense that they minimise your actions.  The overall impression I get from reading the background material including the fact that you have made no effort to pay off the very considerable fines and your constant breach of community based orders is that you have little insight or understanding as to your obligation of living within a community.  You seem to show a particular disregard for the law and so at the age of 23 you come to be sentenced for two serious offences.

The importance is always the protection of the community.  In this case you had a community based order which you breached by offending by unlawful wounding and then you received an intensive supervision order which you breached by a further offending.  We are not in the habit in the courts of giving people lots and lots of opportunities.  It is your obligation to seize the opportunities that are given to you in response to your lawless behaviour.  You have not shown any insight into seizing the opportunities, in fact quite the contrary.

I take into account the fact that you have pleaded guilty at an early stage.  I take into account your youth and the fact that nobody was actually injured albeit you made a threat which is an aggravating feature: a real aggravating feature in this case.  You are a refugee to this country.  You have escaped turmoil but you have escaped into a county (sic) which has given you opportunities and which is a lawful and peaceful community.

Many hundreds in your position have escaped from refugee camps and violence and taken the most of their opportunities.  No doubt your family are part of them but you seem to exhibit a particular aspect of lawlessness that I am not prepared to risk the community in having you roam free for a time. …

… For the count of armed robbery taking into account the transitional provisions you are sentenced to a term of two years and eight months’ imprisonment.  For the breach of the intensive supervision order I cancel the intensive supervision order and now sentence you on a count of unlawful wounding to a term of eight months’ imprisonment taking into account as I have said four months spent in custody on that to make a total of three years and four months’ imprisonment because I direct that each of those sentences be served cumulatively.

I will make a parole eligibility order so that you will serve one half of that time and I will backdate the sentence on the armed robbery to 31 May 2007. …” (G12, pp 80 – 81)

27.     The applicant’s recorded criminal history in Australia (set out in paragraph 3 above) indicates that the applicant, since his first arrival in Australia in April 2002, has committed offences in each year in which he has been in Australia (namely, 2002, 2004, 2005, 2006 and 2007) until 31 May 2007 (since which date he has been in custody).  Included in those offences are two offences which are referred to in paragraphs 10.1.1(1) and 10.1.1(2) of Direction [41] and which are clearly to be regarded as serious, namely, the offence of unlawful wounding, committed on 26 March 2006, and the offence of aggravated armed robbery (including threats to kill), committed on 31 May 2007.  The seriousness of the latter offence was referred to by McKechnie J in his sentencing remarks and was reflected in the substantial sentence of imprisonment for 2 years and 8 months which he imposed (see paragraph 26 above).

28.     As regards the abovementioned offence of aggravated armed robbery, the applicant, by way of mitigation, attributed his commission of that offence to his being heavily under the influence of alcohol and amphetamines by reason of the recent violent death in Somalia of his older half-brother whom he had met and become close to when he was in Kenya in the period from November 2002 to October 2004.  The Tribunal is prepared to accept that the death of the applicant’s half-brother had a severe emotional impact on him and that that impact contributed to his abusing alcohol and amphetamines on the relevant night and subsequently committing that offence.  Although those circumstances may serve to explain, to some extent, the applicant’s commission of that offence, they do not, in the Tribunal’s opinion, excuse, or significantly mitigate the seriousness of, his conduct in committing that offence.

The risk that the conduct may be repeated

29.     Paragraph 10.1.2 of Direction [41] states:

“ 10.1.2    The risk that the conduct may be repeated

(1)The person’s previous general conduct and total criminal history are to be considered highly relevant to assessing any risk of re-offending.

(2)The following factors are to be considered as particularly relevant to this assessment:

(a)a recent history of convictions, which should be considered as indicating an increased risk of re-offending;

(b)evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation.  Greater weight should generally be given to evidence from independent and authoritative sources, such as judicial comments, professional psychological reports, pre-sentence reports for the courts, parole assessments, and similar sources of authoritative information or assessment; and

(c)evidence that the person has breached judicial orders, including parole, bail, bonds, suspended sentences and any other relevant undertakings or conditions imposed by the courts.”

30.     The frequency and consistency of the applicant’s offending in both New Zealand and Australia in the period from 1999 (when he was 15 years of age) to 2007 strongly suggest, in the Tribunal’s opinion, that he is likely to continue to re-offend.  The Tribunal notes, in this connection, McKechnie J’s sentencing remarks on 2 October 2007 in which he referred to the applicant’s “disregard for the law” and his “lawless behaviour” (see paragraph 26 above).

31.     On the other hand, the applicant has recently served his first substantial custodial sentence and he referred in his evidence to the significant deterrent effect this experience has had on him.  He also referred to the additional deterrent effect of his becoming aware, by reason of the cancellation of his visa, of his liability to removal from Australia and indefinite separation from his partner and daughter and other members of his family in Australia in the event of criminal conduct.  He also expressed shame and remorse for, in particular, having committed the aggravated armed robbery offence, and he stated that he had recently completed certain rehabilitation courses while in custody (although he did not provide any documentary or other objective evidence of this).

32.     There is, unfortunately, no objective, authoritative evidence before the Tribunal (such as, for example, a report by a prison psychologist or counsellor) regarding the extent of rehabilitation already achieved by the applicant and the prospect of further rehabilitation in his case, and the degree of risk of his re-offending.  As regards the applicant’s own evidence, although the Tribunal has reservations about his general credibility, the Tribunal is prepared to accept that the experience of serving his first substantial custodial sentence and his present awareness of his liability to removal from Australia in the event of criminal conduct will act as an effective deterrent to his committing serious offences in the future and

thereby significantly reduce the risk of his re-offending in that way such that that risk, in the Tribunal’s opinion, is not high.  The Tribunal acknowledges, however, that (as frankly conceded by his counsel) there remains a real risk of recidivism in the applicant’s case.

Conclusion regarding protection of the Australian community

33.     Having regard to the considerations referred to in paragraphs 22 – 32 above, the Tribunal concludes that the “primary consideration” referred to in paragraph 10(1)(a) of Direction [41] – namely, “the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence” – militates in favour of cancellation of the applicant’s visa but, primarily because, in the Tribunal’s opinion, the risk of the applicant’s committing serious offences in the future is not high, it militates substantially less strongly in favour of cancellation of his visa than would have been the case had that risk been assessed as a high risk.

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

34.     Paragraph 10.2 of Direction [41] states:

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

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

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

Note: For example, if the person was between 17 and 18 years old on arrival.”

35. By paragraph 6(1) of Direction [41] the word “minor”, for the purposes of the Direction, “has the same meaning as in section 5(1) of the Act”, namely, “a person who is less than 18 years old”. It is common ground that the applicant was 18 years old when he first arrived in Australia in April 2002. The applicant was, therefore, not a “minor”, within the meaning of paragraph 10.2 of Direction [41], when he began living in Australia.

36.     Accordingly, this “primary consideration” is not applicable in the applicant’s case.

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

37.     Paragraph 10.3(1) of Direction [41] states:

“ 10.3   The length of time that a person has been ordinarily resident

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

Counsel for the Applicant         Mr D McKenna
Solicitor for the Applicant          Legal Aid WA
Counsel for the Respondent     Mr A Gerrard
Solicitor for the Respondent     Australian Government Solicitor