Anderson and Minister for Immigration and Citizenship
[2011] AATA 158
•10 March 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 158
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/0017
GENERAL ADMINISTRATIVE DIVISION )
Re Jennifer Anderson
Applicant
AndMinister for Immigration and Citizenship
Respondent
DECISION
TribunalMr R P Handley, Deputy President
Date10 March 2011
PlaceSydney
DecisionThe decision under review is set aside and a decision substituted that the discretion in s 501(2) of the Migration Act 1958 should be exercised in Ms Anderson’s favour so that her visa is not cancelled.
……………[sgd].…………...
Mr R P Handley
Deputy President
CATCHWORDS
IMMIGRATION – visa cancellation – Direction 41 - character test – substantial criminal record – primary considerations – protection of the Australian community – seriousness and nature of the conduct – risk that the conduct may be repeated – whether a minor when person began living in Australia – length of time ordinarily resident in Australia prior to engaging in criminal activity – best interests of the child – other considerations - family ties, the nature and extent of any relationships to the Australian community – person’s age – person’s health – links to the country to which they would be removed – hardship likely to be experienced by the person or their immediate family members – level of education – whether the person has been formally advised in the past of conduct that brought the person within deportation provisions – best interests of the children not outweighed by cumulative effect of primary and other considerations - decision under review set aside
RELEVANT ACT
Migration Act 1958 (Cth): s 501
CITATIONS
Lei Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133; (2001) 33 AAR 163; [2001] FCA 568
OTHER AUTHORITIES
Direction [no. 41] - Visa Refusal and Cancellation under section 501
REASONS FOR DECISION
10 March 2011
Mr R P Handley, Deputy President
1. Jennifer Anderson has applied to the Tribunal for the review of a decision of a delegate of the Minister for Immigration and Citizenship (the Minister) to cancel her visa on the ground that she does not pass the character test.
BACKGROUND
2. Ms Anderson was born in New Zealand in 1977 and is a New Zealand citizen. She first arrived in Australia on 2 April 1983, aged 5, with her mother and two siblings to join her father who was already here. She has not returned to New Zealand since. On 1 September 1994, she was granted a Class TY subclass 444 Special Category (Temporary) visa, which permits residence in Australia indefinitely.
3. Ms Anderson has an extensive criminal history including the following offences:
·15 April 1999: ‘obtain money etc by deception’ (4 counts), and ‘receive stolen property’ – good behaviour bond
·22 March 2001: shoplifting – fined
·27 July 2001: larceny – fined
·26 September 2001: larceny – fined
·6 February 2002 and 5 March 2002: warrants issued for larceny, receive/dispose of stolen property, and shoplifting - sentenced on 4 March 2003 to 4 months imprisonment commencing 4 March 2003
·14 February 2002: negligent driving, permit expired – fined
·28 March 2002: larceny, and receive/dispose stolen property – 2 months imprisonment, commencing 18 February 2002
·19 June 2002: ‘steal motor vehicle’ (2 counts), ‘take/detain person in company with intent to obtain advantage’, ‘robbery in company’ – 3 years imprisonment from 17 February 2002 with a non-parole period of 18 months subject to supervised drug rehabilitation and counselling (sentence confirmed on appeal to the Court of Criminal Appeal on 16 December 2002)
·16 December 2003: warrant issued for ‘drive with middle range PCA’, and unlicensed driving - convicted on 25 March 2004 and sentenced to a fine and disqualification for 9 months
·2 November 2004: driving while disqualified, untaxed, unregistered and uninsured vehicle – 12 months disqualification and fine
·31 January 2005: driving while disqualified – 2 years disqualification
·3 March 2006: ‘conspiracy to commit offence unspecified’, ‘conceal serious indictable offence of another person’ – 2 years imprisonment with non-parole period of 18 months suspended on entering into bond and 2 years supervision
·13 March 2006: driving while disqualified – bond and 2 years supervision with conditions
·26 October 2006: driving while disqualified – imprisonment for 3 months and disqualified for 2 years
·19 September 2007: ‘conspiracy to commit offence unspecified’, ‘robbery armed with offensive weapon’ (4 counts) – total of 5 years imprisonment from 18 September 2007 with a non-parole period ending on 17 March 2011 and parole ending on 17 September 2012
Ms Anderson is due for release on parole on 18 March 2011.
4. An Immigration Report dated 22 September 2010 prepared for the Department of Immigration and Citizenship (the Department) by the Windsor office of the Probation and Parole Service, said:
Ms Anderson appears to be making the most of her time in custody, maintaining employment, where she is in receipt of positive reports, and participating in education…
It is considered Ms Anderson is in good stead for when she is released to a period of conditional liberty.
5. An earlier Immigration Report dated 24 February 2009 noted that Ms Anderson had not been the subject of any disciplinary charges or occasions of institutional behaviour while in prison and had not had any adverse urinalysis results. The Report stated that during Ms Anderson’ participation in programs and courses, she had “displayed a high level of insight and was a committed and valued member of the group”. Ms Anderson was described as a “model prisoner”.
6. Ms Anderson has four children under the age of 18: aged 5, 6, 13 and 16. The children are currently in the custody of the NSW Department of Community Services (DOCS). The two youngest children are being cared for by their paternal grandparents. The second oldest child is in the care of her maternal great aunt and the oldest child is in the care of his maternal grandmother, Ms Anderson’s mother.
7. By letter dated 23 January 2003, Ms Anderson responded to the Department’s invitation to make submissions in relation to the cancellation of her visa which was being considered. On 4 June 2003, the Department wrote to Ms Anderson warning her that any further criminal convictions could result in consideration being given to the cancellation of her visa.
8. By letter dated 11 March 2009, the Department notified Ms Anderson of its intention to consider cancellation of her visa and inviting her to respond. On 5 May 2010, she completed a ‘Personal Details Form’ for the Department and, on 19 May 2010, she provided the Department with a response attaching certificates of attainment.
9. By letter dated 23 December 2010, a delegate of the Minister notified Ms Anderson of the cancellation of her visa, which she received on 31 December 2010. On 5 January 2011, she applied to the Tribunal for a review of this decision.
10. The Tribunal was provided with written statements from Ms Anderson, her mother, her two older children and her work supervisor for two years at Corrective Services Industries (CSI), all of whom gave evidence at the hearing - her work supervisor by telephone. The Tribunal was also provided with reports from Rima Nasr, a forensic psychologist, and Mary Jelen, a social worker, both of whom gave evidence at the hearing.
RELEVANT LAW AND POLICY
11. Section 501(2) of the Migration Act1958 (Cth) (the Act) provides that the Minister may cancel a visa if “the Minister reasonably suspects that the person does not pass the character test” and “the person does not satisfy the Minister that the person passes the character test”. Section 501(6) provides that a person does not pass the character test if the person has a substantial criminal record. ‘Substantial criminal record’ is defined in s 501(7) as, among other things, having been sentenced to a term of imprisonment of 12 months or more, or to two or more terms of imprisonment where the total of those terms is two years or more.
12. Ms Anderson has been sentenced to terms of imprisonment of 12 months or more on three occasions, including her most recent sentence of five years imprisonment commencing on 18 September 2007. Thus, she does not pass the character test. It was therefore open to the Minister to cancel Ms Anderson’s visa. In exercising this discretion, the decision-maker must apply Direction [no. 41] - Visa Refusal and Cancellation under section 501 of the Act (Direction No 41). Direction No 41 contains a number of ‘primary’ and ‘other’ considerations to which the decision-maker must have regard when considering whether to exercise the discretion to refuse or cancel a visa.
13. The primary considerations in Direction No 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).
14. These considerations are elaborated on by a range of factors to which regard must be had. There are also a number of ‘other’ considerations that, where relevant, must be taken into account but, generally, in accordance with Direction No 41 paragraph 11(2), they should be given less weight than the ‘primary’ considerations. Those ‘other’ considerations are discussed below.
Primary Considerations
15. The ‘primary’ considerations relevant in Ms Anderson’s case are the protection of the Australian community, the fact that she was a minor when she began living in Australia, the length of time that she was ordinarily resident in Australia prior to engaging in criminal activity, and the best interests of her children. These considerations are addressed below.
the protection of the australian community
16. Direction No 41 identifies two factors relevant to this consideration: the seriousness and nature of the relevant conduct, and the risk that the conduct may be repeated.
The seriousness of the conduct
17. With regard to the seriousness of Ms Anderson’s conduct, the Tribunal notes that paragraph 10.1.1(1) states:
Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community. Those crimes involving violence, particularly against vulnerable persons (such as minors, the elderly and disabled), are especially abhorrent to the whole community.
Among the examples of offences and conduct that are considered serious listed in paragraph 10.1.1(2) are robbery and abduction. Ms Anderson has five convictions for robbery (one on 19 June 2002 and four on 19 September 2007), and one conviction for ‘take/detain person in company with intent to obtain advantage’ (also on 19 June 2002).
18. Paragraph 10.1.1(3) states that “The sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community”, and regard must be had to the number and nature of offences, the period between offences and the time elapsed since the most recent offence. Among the factors to be considered pursuant to paragraph 10.1.1(4) are any judicial comments made about the person, parole assessments and any relevant mitigating factors.
19. The Tribunal has been provided with a copy of the transcript of Judge Tupman’s remarks on sentencing Ms Anderson on 19 June 2002 for four offences to which she pleaded guilty including ‘take/detain person in company with intent to obtain advantage’ and ‘robbery in company’. The Judge described the experience of the 17‑year‑old boy who was detained in the course of the robbery as a “terrifying” one. He was robbed, had a balaclava pulled over his head, bound, threatened, and driven around Sydney on the floor of a car in a semiconscious state. The Judge accepted that Ms Anderson had no knowledge of her co-offenders’ intention to kidnap the victim and played no part in any physical violence. She noted that while she protested to her two male co-offenders about their using excessive force and “spoke consolingly to the victim and took some limited steps to protect him”, she did not take the ultimate protective step of driving off and releasing him “because she anticipated that staying with the co-offenders would yield her some heroin”.
20. Judge Woods, in sentencing Ms Anderson on 3 March 2006, noted that she had pleaded guilty at the earliest opportunity. The matter involved concealing evidence of an offence committed by her husband two years earlier and discussing with him and his sister the giving of false evidence to the police in an effort to create a false alibi for her husband.
21. Ms Anderson was sentenced most recently by Judge Neilson, on 19 September 2007, for conspiracy and four counts of armed robbery to which she had pleaded guilty. It appears that Ms Anderson was not herself armed on the occasion of the first robbery and her role was to act as a lookout. With the second robbery, Ms Anderson accompanied her brother, Jack Etuati in robbing a hotel. “Her role in this offence was merely to stand near Etuati but she also held a knife”. Judge Neilson described the third robbery as the most serious one, involving Mr Etuati and Ms Anderson robbing a McDonald’s restaurant armed with knives while members of the public, including two children who were there with their parents, were present. Two McDonald’s employees, aged 16, who were serving at the time, also gave evidence about how frightened they were. The fourth robbery involved Ms Anderson and her sister-in-law, Samara Kurdi, who were armed with knives, robbing a newsagency.
22. Judge Neilson said that Ms Anderson “had an unsettled childhood and was raised in an environment that was marred by sexual abuse, gambling, alcohol dependency and violence”. She was sexually abused by her father and uncle from the age of seven to 14, when she ran away from home. Her parents separated in 2003 and her father returned to New Zealand. Ms Anderson became addicted to alcohol after leaving home and, at the age of 21, became addicted to heroin. The Judge noted that it appeared Ms Anderson’s “criminal history is all drug related crime”. She was taking heroin at the time the four robberies were committed. While Ms Anderson had had drug and alcohol counselling in the past which had failed to achieve its purpose, “The Offender, to her credit, on this occasion appears to have much greater insight than she has had in the past.” The Judge spoke of the counselling for sexual abuse and in relation to drugs and alcohol that Ms Anderson was having, with good results, and how after nine years of being addicted to heroin she remained abstinent and now realised what the parents in the McDonald’s restaurant at the time of the third robbery must have thought.
23. Judge Neilson made it a condition of Ms Anderson’s release on parole that “she undertake a community based residential rehabilitation program … and comply with all drug and alcohol counselling, treatment and testing as required by the Probation and Parole Service”. If Ms Anderson is released into the community on 18 March 2011, she will be on parole for a further 18 months concluding on 17 September 2012. The Judge assessed her prospects of rehabilitation as fair given Ms Anderson’s greater maturity and insight, but expressed concern about her “associations” and that her “family and support network would appear to be replete with drug users”.
24. Judge Neilson commented:
Perhaps the best thing to be said for the future is the Offender’s maternal role towards her four children, each of whom will require her love and support and should give meaning to her life.
25. There can be no question that Ms Anderson has committed a number of very serious offences culminating in her being sentenced to five years imprisonment for the offences of armed robbery committed in February and March 2007. In three of the robberies, Ms Anderson was armed with a knife. One was a robbery at a McDonald’s restaurant where children were present.
The risk that the conduct may be repeated
26. With regard to the risk that the conduct may be repeated, paragraph 10.1.2 of Direction No 41 requires that consideration be given to Ms Anderson’s previous general conduct and total criminal history and, in particular, to any recent history of convictions, evidence of rehabilitation and evidence as to whether she has breached any judicial orders including bail and parole orders. I note that Ms Anderson’s criminal history includes breaches of the terms of bonds and parole orders.
27. The Probation and Parole Service Immigration Reports for Ms Anderson, referred to above, show that she has not been the subject of any institutional misconduct charges while in custody, has “displayed a high level of insight”, has undertaken counselling and drug and alcohol programs, has completed employment‑related programs, and has been a “model prisoner”. Ms Anderson told me that, looking back, she feels ashamed of what she did and the hurt that she caused to a lot of people, particularly the victims of her crimes. She has strong feelings of guilt, shame and remorse. She said that “taking drugs has ruined my life” and she did not want to put her children through that again. Since she has been in custody, she has “done a lot of growing up” and she can see the damage and suffering she has caused.
28. Ms Anderson said that although they are widely available, she has not taken drugs in prison, and is no longer – since seven months ago - on any anti-drug medication. She has kept herself away from those who take drugs in prison – “it disgusts me”. If she is released into the community, she plans to do the Guthrie House residential program (for which she attended an assessment a few days before the hearing), which includes drug and alcohol counselling and counselling to assist in dealing with sexual abuse, and support and help with integrating back into the community, including assistance in finding suitable housing. This is a three‑month residential program and, only after completing this, would she be able to start work.
29. Ms Jelen, a Social Worker, in her Family Assessment Report dated 17 February 2011, states that she spoke with the Program Manager for Guthrie House on the telephone. The Manager said that Ms Anderson had “self referred” and was to undertake the comprehensive assessment for inclusion in the program on 24 February 2011. The Manager told Ms Jelen that “Pending unforeseeable circumstances … it was highly likely Ms Anderson would be accepted as she appeared highly motivated and committed to her ongoing rehabilitation”. The Manager advised that Guthrie House is:
a specialist residential rehabilitation service for women involved in the NSW criminal justice system. If placed at Guthrie House Ms Anderson will have access to therapeutic counselling services, 24/7 worker support, case management and living skills training. She will also gain assistance in working towards restoration of her children.
30. Ms Anderson told me that she had attended the assessment but had not yet heard the outcome. She said that after completing the program, she hopes to get a clerical job for which she has been interviewed at Mario’s Autos, a mechanics’ shop at Villawood. This came about as a result of her working at the CSI Logistics Services Warehouse, which is part of the John Morony Complex at Windsor where the Dillwynia Correctional Centre is located and where Ms Anderson is presently in custody. Ms Anderson stated she is “determined to make something of myself and provide a stable home for my children”.
31. The CSI Warehouse Manager and Logistics Coordinator provided a reference for Ms Anderson dated 23 February 2011 and gave evidence by telephone at the hearing. He stated that Ms Anderson had worked at the warehouse for a period of two years from 10 December 2008 to 1 January 2011, during which time she worked her way up from being a general hand to being the logistics warehouse clerk. She “displayed exceptional skills in all areas required while in this role”. The manager said Ms Anderson was “very dedicated in her various roles and should be acknowledged for her hard work and great job”, in which “she always gave 110% and went out of her way to get the job completed”, sometimes working 40 to 45 hours a week (rather than the 32 hours required), depending on the work to be done. The manager said his boss had spoken about getting Ms Anderson a job with a company with whom they deal. He thought Ms Anderson’s prospects of getting the job were very good although it had not been “chased up” recently.
32. Ms Nasr, a forensic psychologist, provided a report dated 15 February 2011. She stated, commenting on the risk of recidivism:
Currently, her risks seem moderated by her reported termination of engagement with her former peers, her maturity, which has enabled her to actively participate and engage in offence-related programs targeting her aggression management, in addition to completing several academic and vocational certifications to improve her employment prospects. Furthermore, Ms Anderson has expressed insight and a motivation to engage in long-term psychological treatment to address her history of abuse and her substance-related problems.
33. Ms Nasr spoke of Ms Anderson’s insight and her motivation to engage with counselling services. She would probably need long‑term counselling of between one and two years. Ms Nasr said there is probably a moderate risk of recidivism and the key is how best to manage this and thereby reduce that risk, for example, by disengagement with users, engagement with counselling and support services, family support, appropriate accommodation etc. She noted that impulsivity no longer appears to be a significant risk for Ms Anderson. Ms Nasr said that, in particular, it is imperative that because of her vulnerability Ms Anderson avoids all contact with other drug users. Ms Nasr noted that at the time cancellation of Ms Nasr’s visa was considered previously in 2002/2003, Ms Anderson had not been engaged in community based treatment and she had not experienced an extended period of abstinence.
34. With regard to disengagement from other users, I note Ms Anderson’s mother, Mrs Anderson’s evidence that in addition to Ms Anderson’s son, she currently has her daughter-in-law and her two children living with her, and that her daughter-in-law is addicted to drugs. Mrs Anderson recognises that Ms Anderson will need to find a home of her own and that Mrs Anderson will need to visit her there rather than Ms Anderson visiting her home with the possibility that she will come into contact with other drug users. Mrs Anderson said she has seen a great change in Ms Anderson since she has been in prison and since her becoming “clean”; she is very positive and focused. Ms Anderson also told me that she recognises the need to avoid contact with other drug users including members of her immediate family.
35. Ms Jelen said she interviewed Ms Anderson for over three hours on 8 February 2011. Ms Anderson told her that she had experienced changes in her thinking and attitude over the past three years; she recognises that she needs further assistance and professional intervention, which is not something she had recognised in the past. She said that this time she is taking the initiative and taking responsibility for herself. Ms Jelen said:
In summary, the remorse and regret expressed by Ms Anderson appears to be genuine. She has already commenced the process of change and holds a strong commitment to remaining drug and alcohol free. Ms Anderson is seeking a “second chance” for her children and for herself.
36. In my view, the evidence clearly establishes that the key to Ms Anderson’s rehabilitation is her remaining free of drugs, as she herself recognises. She has now been free of drugs and anti-drug medication for a period of seven months and appears to be firmly committed to this continuing. She impressed me as an intelligent person who has achieved a high level of insight into her past conduct and the consequences of that conduct for others. She seems strongly committed to changing, regaining control of her life, and re-establishing her relationship with her children, recognising that this is very important for her children’s future development, particularly that of her two older children who have been significantly affected by the absence of their mother, as discussed below.
37. Unlike, it appears, in the past, Ms Anderson recognises that she will need professional counselling and support if she is released into the community and she has been proactive in initiating this. She has also undertaken counselling and education programs while in prison to assist her. I have cited the Immigration Report dated 20 February 2009 referring to her as “a model prisoner” and, as I have mentioned, her employer for the past two years at CSI has provided her with a glowing reference. Ms Anderson will need assistance in obtaining appropriate independent housing and employment, although her prospects of obtaining employment appear to be good.
38. I am satisfied that provided Ms Anderson engages with professional counselling and support on being released into the community, has independent accommodation and avoids associating with other drug users, including relevant family members, there are good prospects for her rehabilitation, which is already well advanced. If Ms Anderson achieves this, the risk of her reoffending is low and, in my view, she does not pose a significant threat to the Australian community. I note that if released into the community, Ms Anderson will be on parole until 17 September 2012.
whether a minor on beginning to live in australia
39. The second primary consideration relevant in Ms Anderson’s case relates to her being a minor when she first began living in Australia. Direction No 41, paragraph 10.2(1) states:
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.
40. Ms Anderson arrived and began living in Australia in April 1983, when she was aged five. She has lived in Australia for nearly 28 years. I accept her evidence and that of her family members who were witnesses at the hearing that all her close family are in Australia except the two brothers who have been returned to New Zealand and who are reportedly in prison there. Ms Anderson’s four children are all Australian citizens and the evidence indicates strong family ties and a good level of support for her in the community.
41. Thus, I am satisfied that Ms Anderson has close ties to the Australian community and this primary consideration therefore weighs against cancellation of Ms Anderson’s visa.
length of time ordinarily resident
42. The third primary consideration relevant in Ms Anderson’s case - the length of time she has been ordinarily resident in Australia – is further explained in paragraph 10.3(1) of Direction No 41. This states that “more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character”.
43. Ms Anderson was first charged with an offence on 16 March 1999 (the conviction is dated 15 April 1999) after she had been resident in Australia for 16 years, and she was charged with a series of offences in the period following, culminating in the convictions for armed robbery on 19 September 2007 for which she was sentenced to a total of five years imprisonment. With 16 years residence before offending, this primary consideration weighs against cancellation of Ms Anderson’s visa.
best interests of the children
44. Direction No 41, paragraph 10.4.1(4) states: “Under Australian law, it is generally presumed that a child’s best interests will be served if the child remains with its parents”. In Lei Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133 (Wan), the Full Court said, at 142:
Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of Mr Wan's children, it was entitled to conclude, after a proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children. However, it was required to identify what the best interests of Mr Wan's children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.
45. The Direction sets out a number of factors to be considered in ascertaining the best interests of the child. These include, relevantly, the nature of the relationship between the child and the person; the duration of the relationship including the number and length of any separations and the reasons for those separations; the extent to which the person is likely to play a full parental role in relation to the child; the child’s age, citizenship and relationships with others in a parental role; the likely effect that any separation from the person would have on the child; the impact of the person’s prior conduct on the child; any known wishes expressed by the child; and the circumstances of the probable country of future residence and any language and cultural barriers there for the child.
46. As noted above, Ms Anderson has four children in Australia under the age of 18: sons aged 5 and 6 who are currently living with their paternal grandparents, a daughter aged 13 who is currently living with her maternal great aunt, and a son aged 16 who is currently living with Ms Anderson’s mother. The two youngest sons have been brought up by their grandparents since a very young age and, as Ms Anderson acknowledges, have very little connection with their mother. Ms Anderson said they know she is their mother but she needs to reconnect with them. She last saw them about three months ago and has seen them very little during the time she has been in prison.
47. Ms Jelen spoke with the youngest sons’ paternal grandmother about the boys’ knowledge of their mother. Their grandmother said the boys know their mother is in prison and do not know she may have to leave Australia. They are looking forward to spending more time with their mother on her release from prison. While their grandmother agreed that if Ms Anderson had to leave Australia, it would have very little immediate impact on the boys, she said that in the longer term there may be an adverse effect. She spoke highly of Ms Anderson’s skills as a mother. Ms Jelen said “There is no doubt that should Ms Anderson be allowed to remain in Australia and be given access to [her two youngest sons] they will benefit significantly from physical contact with their mother.” Ms Jelen said both the boys’ grandmother and their father, to whom Ms Jelen spoke on the phone from Junee Correctional Centre where he is in prison, “oppose deportation of Ms Anderson and see this course of actions as being harmful for [the two boys] in the longer term.” Ms Jelen concluded that if Ms Anderson is deported, the loss of the opportunity for the two boys to establish a relationship with their mother may undermine their development, especially “their identity and sense of belonging”.
48. Ms Anderson’s two older children each provided statements and gave evidence at the hearing. Her daughter, aged 13, whom I will refer to as ‘B’, is currently living with her maternal great aunt in Jannali and attending school locally (in Year 8). B said she would like to become a vet or a zoo keeper. She has previously lived at two other aunt and uncle’s houses but chose to move. Although B has only seen Ms Anderson a few times in the last few years, she described their relationship as “awesome” and said they are close and honest with each other. (At this point B dissolved into tears.) She just wants to be with her mother. If her mother had to go back to New Zealand, B said “I would be hurt and angry”.
49. In her statement, B said that she does not have a father: Ms Anderson said B was conceived as a result of a ‘one night stand’ with a stranger whose name Ms Anderson does not know. B said that if her mother is sent back to New Zealand, she will have no parent present and will “feel lonely, sad, angry, broken hearted and scared of making wrong choices”. She said:
Lastly we have all been waiting for this moment for our beautiful mother, Jennifer, to come back home to her loving family … All my brothers and I want is, our mum to be by our sides and in our own home not with other family members or foster parents. We love being with our family and caregivers but we also want our mum and live like a normal family.
50. Ms Jelen spoke with Ms Anderson’s aunt who is currently caring for B. The aunt said she had been caring for B since last year: “being separated from her mum has not been good for [B], she has been moved around the family and when she came to me she was so sad, hurt and scared.” The aunt told Ms Jelen, “there are times I can hear [B] crying at night, she misses her mum very much, she is so happy after her visits with her mum.”
51. Ms Jelen also spoke with B who told her about how much she misses her mother and how she is looking forward to living with her mother and elder brother again. B said she did not want to be separated again from her mother:
I have been moved around the family since mum was sent to jail, I have been very scared and sad and not having my mum in my life has been the worst. I want to be normal, like other kids, I want to live with my mother and brothers, I want to have a normal family just like other kids.
52. Ms Jelen said being separated from her mother has caused B “a great deal of hardship and sadness”. B’s grandmother, Mrs Anderson told Ms Jelen that she had been facilitating contact between B and her mother. Mrs Anderson described B’s reaction to contact with her mother as “big smiles, excitement and joy, she is always so happy to spend time with her mum, she is a different girl”. Ms Jelen said that adolescence is a pivotal stage in a child’s development when the foundations are laid for physical, psychological and social maturity. The loss of her mother will undermine B’s and her older brother’s development progress: “In the event Ms Anderson is deported [B] and [her older brother] will experience significant psychological and emotional trauma.”
53. Lastly, Ms Anderson’s eldest son, aged 16, whom I will refer to as ‘K’, is currently living with his grandmother, Mrs Anderson. He has lived with her since late 2009 but was previously living with his aunt and her family. K said he does not go to school and is unemployed. He is unsettled, upset and gets into trouble with crime and “doing bad things”. He hangs around with the “wrong people” and they play “footy” together. K said he has a good relationship with his mother whom he visits every two weeks with his sister. He wants them all to live together. He does not see his younger brothers very much – only when the boys’ father takes him to visit them, which, most recently, was two to three months ago. K said he does not go to school because “school isn’t for me”, but if his mum told him to, he would.
54. K said if his mother was sent back to New Zealand, he would be “emotional, upset and angry”. He would want to go back to New Zealand with her. K said that on the day before the hearing, he had made contact with his father in New Zealand through Facebook. (Ms Anderson stated that her relationship with K’s father ended when he was deported to New Zealand after serving a four‑year prison sentence. Effectively, however, the relationship seems to have ended when he was imprisoned on this occasion, which was when Ms Anderson was 21. Left alone to bring up two young children, and “with no job, no skills and virtually no education”, her life felt empty and without purpose and it was this time that she stared taking drugs.) K said this was the first contact he had had with his father since K was a little kid. His father told K he is a personal trainer and is married with two other children. K does not know where his father lives in New Zealand but said he would want to meet him if K goes to New Zealand.
55. In his statement, K said he would hate to grow up without a mum or a dad. He said he and his sister have been through a lot without their mother: “It has been one of the hardest things in our life. I have no support no love around me and nothing.” He said he lives separately from his sister and brothers and he misses them very much: “It hurts me so bad that we don’t get to live together … I will always love my mum and will stand beside her with my love, strength, pride and devotion.”
56. Ms Jelen said K told her he is fearful of his mother being deported and it is causing him a great deal of stress. He is more unsettled and angry without his mother who is a calming influence in his life. He also misses living with his sister and enjoys their visits together to see their mother. Ms Jelen said life for K after Ms Anderson’s imprisonment:
was not a happy situation for [K], in one family placement he was expected to sleep on the sofa in the lounge room, had no personal space or resources to do his homework. [K] did not have a sense of being valued or able to find his place within his extended family. In response to his feelings he started to experience behavioural difficulties and school problems. His oppositional and defiant behaviours led onto offending behaviour necessitating juvenile justice intervention.
57. Ms Jelen said K told her that he could not cope with his mother being in New Zealand while he remained in Australia. He would want to be there too. K’s grandmother, Mrs Anderson, told Ms Jelen that since being separated from his mother, she has observed a steady deterioration in K’s behaviour. Ms Jelen said she also spoke with the Juvenile Justice officer who is currently supervising K. The officer said he believes K’s difficulties are connected to the incarceration of his mother, with whom K shares a meaningful relationship and who has a positive influence on his life. The officer expressed concern about the deportation of Ms Anderson, advising that this would have a detrimental effect on K: K has been looking forward to having his mother back and if this does not happen, it will destabilise K and he would again experience emotional and behavioural difficulties.
58. Ms Jelen concluded that if K’s attachment and relationship with his mother is broken, this will cause him and B “irreparable psychological harm”. If Ms Anderson is deported, “this will have a significant and adverse impact on [K’s] life”. As with K’s sister, K is at the adolescent stage in his development, and the loss of his mother will undermine the progress of his development.
59. Bearing in mind the approach to be followed in such matters outlined by the Full Federal Court in Wan, in my view, the evidence clearly establishes that the best interests of Ms Anderson’s two older children are for them to live with their mother. Like their younger siblings, they are both Australian citizens. Both have a strong attachment to their mother. Effectively, neither of them have had a father in their lives and if their mother is removed to New Zealand it is likely to have a significant adverse psychological impact on them at an important stage in their development. Both children have already suffered as a result of their mother’s imprisonment and have been unsettled by having to live with different family members. This has been reflected in their behaviour. In particular, K is at risk of slipping into increasingly antisocial behaviour and involvement in the criminal justice system.
60. The two younger children have spent most of their lives living with their grandparents and, while they know Ms Anderson is their mother, they have not had the opportunity to establish a strong attachment to her, as she acknowledges. While Ms Anderson’s removal to New Zealand might not have any immediate significant effect on them, as Ms Jelen stated and as the boys’ grandmother recognised in speaking with Ms Jelen, in the longer term, the loss of opportunity for the boys to establish a relationship with their mother may undermine their development. I am therefore satisfied that their best interests will be served by their having such an opportunity.
Other Considerations
61. As noted above, Direction No 41 states that ‘other’ considerations, where relevant, must be taken into account but, generally, should be given less weight than ‘primary’ considerations. Relevant ‘other’ considerations in Ms Anderson’s case specifically referred to in the Direction are her family ties and the nature and extent of her relationships with those in the Australian community, her age, her health, her links with New Zealand, the hardship that may be experienced by both Ms Anderson and her immediate family members in Australia, her level of education, and whether she has been formally warned in the past that her visa might be cancelled because of her criminal conduct.
62. The documentary evidence and the oral evidence at the hearing clearly establishes that Ms Anderson has strong family ties in Australia. Her four children are here and the family members to whom she is close. I accept that that if Ms Anderson is returned to New Zealand this will cause both her and her immediate family, particularly her two older children, significant hardship by reason of their separation. While Ms Anderson’s eldest son might well accompany his mother to New Zealand, it would be disruptive for her daughter who told Ms Jelen that she is happy at school. Moreover, Ms Anderson has no contact with any family members in New Zealand and would be faced with establishing herself and making a home for her children without the support mechanisms she has in place in Australia. This assumes DOCS, who currently have custody of the children, would permit the two older children to relocate to New Zealand.
63. If Ms Anderson is removed to New Zealand, it will also be difficult for her to establish and maintain a relationship with her two youngest children. Ms Jelen indicated that it is likely to be a gradual process for Ms Anderson to re-establish a relationship with her youngest children, which their paternal grandmother told Ms Jelen she is prepared to supervise: the process may take a number of years and DOCS will expect Ms Anderson to remain drug-free, not re-offend and maintain an appropriate lifestyle and home environment.
64. Ms Anderson is now aged 33 and apparently in good health, although I accept that further separation from her children as a result of her being removed to New Zealand is likely to have a significant adverse effect on her, in terms both of anxiety and depression, as Ms Jelen indicated and as Ms Nasr contemplated in her report, and in terms of her vulnerability to drugs. Ms Anderson has made considerable efforts while in prison to undertake further education and training which, with her experience in working for CSI, should stand her in good stead in finding suitable employment. I was impressed by her motivation and commitment to turning her life around and re-establishing herself in the community.
65. Finally, I note that Ms Anderson received a formal warning from the Department by letter dated 4 June 2003, after she had made submissions in response to a notice that the cancellation of her visa was being considered. The evidence indicates that since then, Ms Anderson has achieved further insight into her situation, is more highly motivated to overcome her addiction, and, in particular, is more aware of her need for ongoing professional and community support in order to achieve full rehabilitation.
66. Weighing up the relevant ‘primary considerations’, I am satisfied that while Ms Anderson has committed a number of very serious criminal offences, she is strongly committed to ongoing rehabilitation. Given her excellent progress to date, there are good prospects for her achieving full re-integration into the community, free of drugs, in which case the risk of her reoffending is low and she poses little threat to the Australian community. The second and third primary considerations, the fact that Ms Anderson began living in Australia as a minor and the length of time between her becoming resident in Australia and her first misconduct, favour her visa not being cancelled, although these considerations are often outweighed by any need to protect the Australian community. With regard to the fourth consideration, the best interests of her children, in my view this strongly favours Ms Anderson’s visa not being cancelled, as explained above.
67. With regard to the ‘other considerations’, I am satisfied that Ms Anderson’s return to New Zealand would cause significant hardship both to her and, in particular, to her children. I note that Ms Anderson has no means of support there and that the separation and anxiety associated with having to establish herself there could have a detrimental effect on her health and increase her vulnerability to drugs. I have noted the formal warning Ms Anderson received from the Department on 4 June 2003.
68. I have had regard to both the primary and other considerations, and pursuant to the decision in Wan, had particular regard to the best interests of the children and whether the cumulative effect of the other ‘primary’ and ‘other’ considerations outweighs the best interests of Ms Anderson’s children that her visa not be cancelled. I am satisfied that in this instance the best interests of Ms Anderson’s children outweigh any other consideration favouring the cancellation of her visa, specifically the protection of the Australian community for whom, in my view, Ms Anderson poses little risk. Thus, I conclude that the discretion in s 501(2) of the Act should be exercised in Ms Anderson’s favour and that her visa should not be cancelled.
DECISION
69. The decision under review is therefore set aside and a decision substituted that the discretion in s 501(2) of the Migration Act 1958 should be exercised in Ms Anderson’s favour so that her visa is not cancelled.
I certify that the 69 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President.
Signed: ……...[sgd]...................................................................
A Veness, Associate
Date of Hearing: 28 February 2011
Date of Decision: 10 March 2011
Applicant representative: Ms A Toliopoulos, NSW Legal Aid Commission
Applicant counsel: Mr L Karp
Respondent representative: Ms J Cumming, Clayton Utz
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