Anthony Hurn and Minister for Immigration and Citizenship
[2013] AATA 79
[2013] AATA 79
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/5450
Re
Anthony Hurn
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Ms G Ettinger, Senior Member
Date 19 February 2013 Place Sydney The Tribunal affirms the decision under review.
.................[sgd].......................................................
Ms G Ettinger, Senior Member
CATCHWORDS
MIGRATION – Class BF Transitional (Permanent) visa – cancellation – character test – substantial criminal record – protection of the Australian community – risk of re-offending –nature of the risk is unacceptable – strength, duration and nature of ties to Australia – best interests of minor children, grandchildren – other considerations – decision under review affirmed
LEGISLATION
Migration Act 1958 ss 500, 501
CASES
Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 40 FCR 493
Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81
Re Visa Cancellation Applicant and Minister for Immigration and Citizenship [2011] AATA 690SECONDARY MATERIALS
Direction no. 55 – Visa refusal and cancellation under s501
REASONS FOR DECISION
Ms G Ettinger, Senior Member
19 February 2013
SUMMARY
Mr Anthony Paul Hurn is a 52 year old man who came to Australia with his mother and sister from the UK in 1968, when he was aged seven. He is a British citizen. Mr Hurn has resided in Australia since his arrival, and has not left this country. He was granted a Class BF Transitional (Permanent) visa. Mr Hurn’s mother died in 2009, and his father who is approximately 77 years old, lives in England. Mr Hurn’s evidence was that he has limited contact with his father. Mr Hurn has a sister and a half sister in Australia, the latter the product of his mother’s remarriage. He says he is close to both.
Mr Hurn has given evidence about his five significant relationships. He has four adult children, and one daughter under 18 years of age. Ms N and Mr D are from his first marriage, Ms S and Mr J from the second marriage, and Ms T from a relationship dating back to 2000 or 2001. Mr Hurn has been in contact with Ms N and Ms S, who also gave evidence at the Tribunal, and whose relationship with him will be discussed in the paragraphs that follow. Mr Hurn has had no contact with Mr D and Mr J since his separation from their mothers.
Mr Hurn’s youngest daughter, Ms T, is now 12 years old. He has not seen her since a day before her first birthday. Ms N’s four children are his grandchildren. Due to domestic violence, his drug and alcohol abuse, and his incarceration, contact with the children has been sporadic. This will be discussed below.
Mr Hurn has a history of criminal conduct commencing with a criminal conviction in a Children’s Court for building breaking and felony when he was almost 15 years old, and eight years after his arrival in Australia. He has been convicted of a number of offences since that time, six convictions in the Children’s Court, many more as an adult, and has been sentenced to prison several times. Certain of the offences and convictions involved violence, and in particular four assaults, including an assault on a family member. The assaults took place in February and March 1990, 1997, and 2002 (Exhibit R5). The most serious conviction has been one for burglary and two counts of rape of a 14 year old in 1989, with the conviction following in 2006, approximately 16 years later.
Mr Hurn admits that most of the offences he has committed have been associated with alcohol and cannabis consumption. He has sought to address his violence and addiction, and anger management issues by undertaking courses, particularly in his most recent seven and a half year incarceration.
On 16 November 2012, a delegate of the Minister for Immigration and Citizenship (the Minister) made a decision to cancel Mr Hurn’s visa. He is currently in immigration detention.
Mr Hurn seeks a review of the Minister’s decision before this Tribunal. The Minister made the decision because Mr Hurn does not satisfy the character test set out in the Migration Act 1958 (the Act). Mr Hurn does not satisfy this character test because he has a substantial criminal record. Both the Minister and the Tribunal standing in his shoes can exercise a discretion to cancel Mr Hurn’s visa.
I am satisfied on the basis of the evidence before me that the decision of the Minister should be affirmed. My reasons follow.
Mr G Tremelling of Legal Aid NSW represented Mr Hurn at the Tribunal. Mr R Prince of the Australian Government Solicitor represented the Minister for Immigration and Citizenship. I am mindful of Mr Tremelling’s submission that Mr Hurn was not warned about a possible visa cancellation. It is not a matter to which I give weight. I am grateful to both representatives for their assistance.
LEGISLATIVE CONTEXT
The relevant legislation in this matter is the Migration Act 1958, and Direction no. 55 – Visa refusal and cancellation under s501 (Direction no. 55). Section 501(2) states that the Minister may cancel a visa granted to a person if the person does not satisfy the Minister that he or she 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 section 501(7) as, among other things, having been sentenced to a term of imprisonment of 12 months or more, or to two or more terms of imprisonment where the total of those terms is two years or more.
Mr Hurn has been sentenced to various terms of imprisonment, including most recently, a sentence of 12 years and one month of which he served seven and a half years. I have reviewed the offences with which Mr Hurn has been charged, those of which he was convicted, and the sentences which followed, and find that he exceeds the minimum contemplated in section 501(7) of the Act in order to constitute a person having a substantial criminal record. As a result of his substantial criminal record Mr Hurn does not pass the character test. Accordingly the discretion under section 501(2) of the Act is enlivened.
Direction no. 55 which is made pursuant to section 499 of the Act, must be applied when exercising the discretion where a person has been held to fail the character test in section 501 of the Act.
Direction no. 55 states that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens (clause 6.2(1)), and sets out six principles of critical importance in furthering that objective which are stated to reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable (clause 6.2(1)). These principles must inform the exercise of the discretion, and involve a balancing exercise (clause 7(1)). The principles are as follows:
6.3Principles
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(4)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(6)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Clause 8 provides guidance about the decision-making process. Decision-makers must have regard to the primary and other considerations as set out in Direction no. 55, and information and evidence from independent and authoritative sources should be given appropriate weight. The primary considerations should generally be given greater weight than the other considerations, and one or more of the primary considerations may outweigh other primary considerations.
There are four primary considerations, three of which are relevant to this case, being protection of the Australian community from criminal or other serious conduct, the strength, duration and nature of Mr Hurn’s ties to Australia, and the best interests of minor children affected by the decision. It is common ground that the fourth primary consideration relating to international non-refoulement obligations is not relevant in this case.
The other considerations include, but are not limited to, the effect of cancellation on the person’s immediate family in Australia, the impact on Australian business interests, the impact of a decision not to cancel a visa on members of the Australian community (including victims of the person’s criminal behaviour and family members of the victims), and the extent of any impediments the person may face if removed from Australia.
PRIMARY CONSIDERATIONS
Protection of the Australian Community
Clause 9.1(1) of Direction no. 55 provides that decision-makers, and hence the Tribunal, should have regard to the principle that the Government is committed to protecting the Australian community from harm. Relevantly, it states:
Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
In considering the protection of the Australian community, the Tribunal must have regard to the nature and seriousness of Mr Hurn’s conduct (clause 9.1.1), and the risk to the Australian community should he commit further offences or engage in other serious conduct (clause 9.1.2).
The nature and seriousness of Mr Hurn’s conduct
Sub-clauses a) to j) of clause 9.1.1(1) have been compiled for consideration when assessing the nature and seriousness of a person’s conduct. The sub-clauses relevant to Mr Hurn’s conduct include:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
c)…
d)The principle that any conduct that forms the basis for a finding that a person does not pass the character test under s 501(6)(b) or (d), or is not of good character under s 501(6)(c), is considered to be serious;
e)The sentence imposed by the courts for a crime or crimes;
f) and g)The frequency of the person’s offending and whether there is any trend of increasing seriousness; the cumulative effect of repeated offending.
Mr Hurn appeared before the Children’s Court nine times between 1975 and 1978.
The table below, based on document Exhibit R5, indicates the dates of conviction for the various crimes Mr Hurn has committed since becoming an adult.
Date of conviction
Date of offence
Offence
Sentence
3 Nov 1980
n/a
Unregistered vehicle
Convicted – fined $10
n/a
Uninsured vehicle
Convicted – fined $30 – licence disqualified for 1 week
18 Aug 1982
n/a
Imposition (3 counts)
On each count: without conviction – discharged without penalty [Crimtrac records]
or [inconsistent records]
Found proved – without conviction – fined $30 – pay reparation $519.60 [NPC]
17 Oct 1990
25 Feb 1990
Assault occasioning actual bodily harm
Convicted – imprisonment 9 months – suspended sentence on $250 good behaviour bond for 1 year
16 Apr 1991
8 Mar 1990
Common assault
Convicted – fined $100
9 Dec 1993
23 Sep 1993
Drive with excess blood alcohol
Unlicensed driver
On both charges: convicted – fined $600 – licence disqualified for 8 months
20 Dec 1993
as above
Breach of bond imposed 17 October 1990
Found proved – refrain from revoking suspension – in lieu: imprisonment 9 months – suspended sentence on $250 good behaviour bond for 1 year
20 Jul 1995
15 Mar 1995
Disobey traffic lights
Convicted – fined $140 (plus court costs)
30 Nov 1995
14 Jun 1995
Possess cannabis
Convicted – fined $160 (plus court costs)
9 Jan 1996
7 May 1995
Unlawful possession
Convicted – fined $200 – pay compensation $15.33 (plus court costs)
23 Mar 1998
9 Jan 1998
Unregistered vehicle
Convicted – fined $90 (plus court costs)
15 May 1998
3 Nov 1997
Commit common assault on member of own family (3 counts)
Assault occasioning actual bodily harm
On all charges: convicted – imprisonment 12 months with non-parole period 4 months – suspended sentence on $50 good behaviour bond for 2 years. Restraining order against named persons
29 Aug 2000
3 Mar 2000
Unregistered vehicle Uninsured vehicle Unlicensed driver
On all charges: convicted – fined $200 (plus court costs)
2 Nov 2000
17 Mar 2000
Unregistered vehicle Uninsured vehicle Unlicensed driver
On all charges: convicted – fined $300 (plus court costs) – licence disqualified for 1 day
21 Nov 2000
9 Jun 2000
Unregistered vehicle Uninsured vehicle
On all charges: convicted – fined $400 (plus court costs) – licence disqualified for 1 day
27 Apr 2001
9 Dec 2000
Unregistered vehicle Uninsured vehicle
On all charges: convicted – fined $150 (plus court costs) – licence disqualified for 3 days
7 Jun 2001
8 Jan 2001
Drive a motor vehicle whilst licence is suspended
Convicted – fined $300 (plus court costs)
21 May 2002
27 Jan 2002
Unlicensed driving
Fined $225
11 April 2003
30 & 31 Jan 2003
Breach of bail condition (2 counts)
On both counts: – convicted – fined $200
4 Feb 2003
Breach bail undertaking
Convicted – no penalty imposed
30 Jan 2004
27 Aug 2003
Breach bail undertaking
Convicted – no penalty imposed
2 Aug 2004
31 Mar 2004
Breach bail undertaking
No conviction recorded – fined $200
15 Dec 2004
22 Nov 2003
Breach of release conditions
On each charge: convicted -imprisonment 3 months – sentence wholly suspended to be of good behaviour for 2 years
10 Dec 2002 & 15 Aug 2003
Breach of order
10 Dec 2002
Assaults occasioning bodily harm
14 Sep 2004
Breach bail undertaking
29 Oct 2004
Possession of weapons
Convicted – fined $200
5 Dec 2003
Possession of property suspected stolen or unlawfully obtained
Possess utensils or pipes etc (not to be used for needles and syringes)
On each charge: convicted – fined $150
23 Nov 2004
Breach bail undertaking
Convicted – no penalty imposed
11 & 15 Mar 2004
Breach bail condition
Convicted – no penalty imposed
30 Oct 2004
Unlicensed driving
Drive under influence of liquor (0.150 and over)
Fined $800 – disqualified 10 months
2 May 2005
26 Aug 2003
Fail to comply with domestic violence restraining order
Convicted – dismissed without penalty
19 Apr 2004
Attempted damaging property
Convicted – dismissed without penalty
22 Aug 2005
16 Jun 2005
Fail to comply with bail agreement (2 counts)
On both counts – convicted – discharged without penalty
27 Jul 2006
21 Jan 1989
Rape
Burglary
Threatening Life
Convicted – imprisonment 12 years, 1 month with non-parole period 7 years, 6 months from 18 Jun 2005
As can be seen from the table above, Mr Hurn has been convicted of various crimes. The offences of burglary and two counts of rape of a 14 year old girl which Mr Hurn committed in January 1989, and of which he was convicted in 2006, have been the most serious. As can be noted, there was approximately a 16 year gap between Mr Hurn committing the rapes, and his conviction. He was charged with the 1989 rapes after a DNA test conducted in Queensland following the commission of an offence there in 2004 linked him to the 1989 offence.
During the 16 year period from 1989 to his arrest in 2004, Mr Hurn committed assaults on four occasions (twice in 1990 and once each in 1997 and 2002). The 1997 assault was on a member of his family.
For the February 1990 offence of assault occasioning actual bodily harm, Mr Hurn was convicted and sentenced to prison for nine months. He was given a suspended sentence on a $250 good behaviour bond for one year. For the second incident, a common assault in March 1990, he was convicted and fined $100. Mr Hurn’s evidence was that not all were his fault, he was drinking and had to defend himself in a fight.
For the 1997 offences of common assault on member of own family (three counts), and assault occasioning actual bodily harm, he was sentenced to 12 months’ imprisonment with a non-parole period of four months. This sentence was suspended on $50 good behaviour bond for two years, and a restraining order was made against named persons.
On 10 December 2002, Mr Hurn again engaged in assaults occasioning bodily harm, for which he was convicted, sentenced to prison, and had his sentence wholly suspended to be of good behaviour for two years.
Mr Hurn sought to place blame for his conduct in his early life on his separation from his father in the UK at age seven, physical beatings from his stepfather from the age of approximately 10 or 11 when his mother remarried in Australia, and to poor learning skills which led to problems at school. Mr Hurn also said that his stepfather’s friends tried to get him to perform sexual acts with them, but that he got away from them. He recounted how humiliated he was when his teacher made him wear a girl’s dress, then have to bend over and be hit with a yardstick (large ruler).
Mr Hurn said that if he had been able to read and write, he would have wanted a career as a police officer or soldier in the army.
There is little doubt that his dysfunctional childhood had an effect on Mr Hurn, and that his drug and alcohol abuse arose, in part, at least due to his poor self-esteem. Dr White, a psychologist who examined Mr Hurn and made a report dated 8 June 2006 stated that Mr Hurn’s pattern of offending was often unplanned and impulsive, consistent with his personality. When he was affected by substance use his disinhibition often led to dysfunctional acting out behaviours. Dr White opined that the rapes in 1989 were likely to have been the consequence of his personality type mixed with disinhibition from heavy substance abuse.
Dr Westmore, a forensic psychiatrist, examined Mr Hurn and wrote a report dated 29 January 2013 for the purpose of these proceedings. He also gave oral evidence before the Tribunal. He found Mr Hurn had antisocial personality traits but was unable to confirm, after one examination, whether Mr Hurn had an Antisocial Personality Disorder. He also opined that Mr Hurn did not suffer a specific Psychosexual Disorder.
Mr Hurn’s evidence was that in the early hours of 21 January 1989 he had been drinking and smoking cannabis and returned from the pub before taking overalls and a balaclava from a shed, and going into the neighbour’s house to commit rape on the 14 year old victim. It is undisputed that after returning next door where he lived, Mr Hurn took off the disguise and knocked on the front door of the house where the victim was babysitting, expressing an intention to check on her welfare. Rice J held however:
You then took those items off, and pretended to be checking that everyone was all right at the [V’s] house, whereas you were really there to see whether [Ms A, the victim] realised it was you.
His Honour stated as follows on 27 July 2006, in sentencing Mr Hurn for the 1989 rapes and burglary:
… you broke into the house of your next-door neighbour with the intention of raping a 14 year old girl who was babysitting there. You had disguised your appearance and features by wearing overalls and a balaclava. You then raped this 14 year old twice, once by putting your penis into her vagina and the other by placing your fingers in her vagina. Although she does not remember seeing a knife or weapon, you told her not to scream or you would slit her throat.
…
As to the question of contrition and remorse, I have before me medical notes from the Lyell McEwin Health Service for 24 January 1989, some three days after your offending. You presented on that day with a lacerated right forearm about 18 centimetres or seven inches long. It was sutured and you left. You claimed to the hospital staff that you fell onto glass…
In your handwritten letter to me, you state that you were trying to kill yourself and that you went to the police station many times to hand yourself in but could not bring yourself to do so.
…
You have a number of traffic offences and motor vehicle offences as both a juvenile and as an adult. More importantly, however, as an adult, you have a number of convictions for assault occasioning actual bodily harm and common assault… You received three suspended sentences over those years. All of those offences were committed after these offences in 1989. It was … the offending in 2004 in Queensland that led to your arrest and extradition. Your offending since 1989 does not inspire confidence in positive rehabilitation, particularly as you knew you were guilty of these rapes.
…
I have no trouble in accepting that you had been drinking heavily that night and smoked some cannabis. However, your actions displayed a calculating intent, foresight and a degree of planning…
His Honour then went on to read the victim impact statement, including a passage where the victim wrote:
To hear that you at one point had suggested that I, as a fourteen year old girl, may have consented to anything that happened on that night was insulting, infuriating, and made me feel sick to my gut. I do not wish you to have any doubts about that night. I was the child victim of a terrifying act. I did not and still do not fully understand why it happened. I was confused. I felt powerless and very afraid.
…
The emotional and psychological pain has been so intense at times that I’ve craved numbness. Some days I have not had the emotional strength to even get out of bed to go to work…
…
It seems to me that you get off quite easy, you can serve your sentence and move on. This will stay with me for the rest of my life.
His Honour continued:
Similarly, [Mrs V, the neighbour], although she has since remarried, described the emotional trauma that she and her former husband suffered as indescribable. They blamed themselves for what happened and feared that the offender may have touched their children as well.
I noted that Mr Hurn sought at one point to say that the victim of the rape consented, and pleaded guilty to the rapes only after he had been in custody for approximately a year, during which time he attempted to have the charge reduced to unlawful sexual intercourse.
Mr Hurn expressed remorse at the Tribunal for committing the rapes. He said he wishes he could turn back the clock. He told me that the day following the rapes (records indicate it was three days later), he cut his arm in an attempted suicide. He said he was depressed. He then admitted himself to hospital, informing the doctors that he had put his arm through a window. Mr Hurn said that he wanted to self report the crimes and approached police stations a couple of times, but could not bring himself to do it because he did not want to hurt his family, and another time, because he feared the consequences.
Mr Hurn tried to explain away the rapes by saying that he had been lonely, and that and the alcohol and marijuana had been the motivating forces for the rape. However, when it was pointed out to him at the Tribunal that he was in a relationship with a woman at the time, his evidence was that she was older than he was, and it was not a good relationship.
As noted above, (clauses 9.1.1.a) and b)), violent or sexual crimes such as Mr Hurn committed between 1989 and 2002, are serious crimes, and the rapes in particular, were committed against a vulnerable member of the community who was 14 years old at the time.
His one year prison sentence in 1998, for assaulting a family member in 1997, notwithstanding the suspension, forms the basis for a finding that Mr Hurn does not pass the character test pursuant to the Act, and is to be viewed as serious (clause 9.1.1.d)).
The other relevant sub-clauses in clause 9.1.1, are clauses 9.1.1.e), f) and g). I have noted the seriousness of the rape convictions reflected in the sentence of 12 years and one month given by Rice J, and the repeated violence evidenced by four assault convictions (two in 1990, one each in 1997 and 2002).
I was also concerned by Mr Hurn’s inability to recall the assaults. He attributed any inability to recall to alcohol consumption. He stated in regard to the first assault conviction in 1990 that it was not his fault, and that he was defending himself. He did not recall the others precisely, although he recalled that the 1997 assault was on his second wife, Ms P. When asked about a notation made in an Assessment at Port Lincoln Prison (Exhibit R4-181 dated 29 September 2010), which recorded as follows:
Mr Hurn has a history of domestic violence, and has previously been convicted for assaulting his ex-wife in 1998, when according to police reports, he punched the victim in the face, attempted to strangle her, and attempted to ‘shove his wedding ring down her throat’.
Mr Hurn indicated that he did not recall the detail.
In summary, Mr Hurn’s criminal conduct has been serious, primarily because of the frequency of his offending, as indicated in Exhibit R5, taking into account the assaults, and particularly because of the rapes of a minor committed in 1989 for which he was not convicted until 2006. He did not confess to the rapes for a long time, and it was not until he was arrested for another offence in 2004, and as a result of a DNA match, that he was charged with the burglary and rapes. The length of the sentence reflects the seriousness of these offences.
Mr Hurn has also exhibited a lack of respect for authority and breached court orders. He also breached his home detention in June 2005 by cutting off his bracelet and putting it on his dog before heading for Queensland.
My consideration of the nature and seriousness of Mr Hurn’s conduct which I find has been serious in terms of clause 9.1.1 of Direction no. 55, is that it weighs heavily in favour of cancelling his visa. I moved then to consider the risk to the Australian community of the Applicant committing further offences.
The risk to the Australian community should Mr Hurn commit further offences or engage in other serious conduct
In considering the application of clause 9.1.2 of Direction no. 55, I must have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. I note further that clause 9.1.2.(1) states that some conduct, and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. I must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should Mr Hurn engage in further criminal or other serious conduct; and
(b)the likelihood of him engaging in further criminal or other serious conduct, taking into account information and evidence on the risk of him re-offending, and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since his most recent offence.
Mr Hurn’s evidence was that he realises that he had alcohol, and drug problems and an inability to control his violence, as evidenced by his criminal activity, in particular the assaults. He gave evidence that he was a changed person following his incarceration, and cited the courses he has undertaken which have contributed to his rehabilitation. I noted that Mr Hurn undertook the following courses: Drug Alcohol A and B; Violence Prevention Program; Peer Support, Certificates in English, numeracy, computer skills, horticulture, communication, responding effectively to difficult or challenging behaviour and first aid.
Mr Hearn expressed remorse for his actions, and the effect on his victims. He said that he had ceased to have any interest in alcohol, not having drunk during his seven and a half year incarceration. Notwithstanding the courses he undertook in prison, Mr Hurn continued to test positive for drugs until 2009.
Mr Hurn was very insistent on telling me that he would not re-offend, and spoke at length about his children and grandchildren, and his contact with them. He blamed his criminal activity on low self-esteem dating back to his experiences in the home with his stepfather, school, where he was held to be dumb, leading to finding relief in alcohol and cannabis. He described how, since learning to read, and doing the courses in prison, he had improved his sense of self-worth.
Rice J stated as follows in his 2006 sentencing remarks:
More importantly, however, as an adult, you have a number of convictions for assault occasioning actual bodily harm and common assault… You received three suspended sentences over those years. All of those offences were committed after these offences in 1989. It was … the offending in 2004 in Queensland that led to your arrest and extradition. Your offending since 1989 does not inspire confidence in positive rehabilitation, particularly as you knew you were guilty of these rapes. [Tribunal’s emphasis]
…
I have no trouble in accepting that you had been drinking heavily that night and smoked some cannabis. However, your actions displayed a calculating intent, foresight and a degree of planning…
Dr Westmore stated that he finds risk prediction extremely problematic. He stated that based on the Violence Prevention Program report, Mr Hurn has made progress from a psychological perspective since the offences in 1989. He considered the risks of Mr Hurn reoffending in a sexual way to be within the low to moderate range. He opined that the risk is at the lower end of that particular spectrum; however should he return to drugs and alcohol, then the risk would increase.
Dr Westmore considered that Mr Hurn is of at least moderate risk in terms of future aggressive behaviour which is likely to occur within the context of intense intimate/emotional relationships. He noted that all but one of Mr Hurn’s previous relationships was characterised by domestic violence. Once again the risk would increase if alcohol or drugs were involved.
Dr Westmore emphasised however, that as Mr Hurn is now 52 years old, it is generally accepted that advancing age and maturation can soften antisocial qualities people might express when younger. He considered some degree of maturation had occurred in Mr Hurn, and mentioned that Mr Hurn considered he had developed personally since in custody and had improved self-esteem. This was also corroborated by Mr Hurn when he gave his evidence. He expressed particular pleasure that he can now read and write and do some maths.
I had the evidence from Mr Hurn’s many witnesses, who without exception spoke of him being a changed person. Friends, Mr Rosser and his wife, Ms Fox, have been particularly loyal to Mr Hurn, and visited him frequently while he was in prison. His sisters, Ms Carthew and Ms Hompas said that they were unable to visit Mr Hurn often when he was at Port Lincoln Prison because of the great distance from their homes; further the cost and time it would take, was prohibitive. Ms Hompas offered to have Mr Hurn live at her place on his release, but was not approved by parole because of her grandchildren visiting, and the proximity of a school. Mr Rosser and his wife have plans to host Mr Hurn.
Mr Hurn was also keen for me to take into account the stringent conditions on his parole (Exhibit A4), and the four and a half year parole period during which he would be under supervision. They are both considerations.
Having heard the evidence, I then had to turn to consider the risk to the Australian community should Mr Hurn commit further offences or engage in other serious criminal conduct.
Having regard to this evidence, I am of the view there is a real risk Mr Hurn may reoffend in the future. A real risk of recidivism is one which is not far-fetched or fanciful, and can include a low or minimal risk: Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 40 FCR 493.
According to Dr Westmore, the risks of Mr Hurn reoffending in a sexual way are within the low to moderate range, at the lower end of that particular spectrum. It is worth noting however, the profound effect Mr Hurn’s 1989 offence had on his 14 year old victim, and his neighbours (G-30 and G-32).
Dr Westmore also considered that Mr Hurn is of at least moderate risk in terms of future aggressive behaviour which is likely to occur within the context of intense intimate/emotional relationships. He noted that all but one of Mr Hurn’s previous relationships was characterised by domestic violence. Dr Westmore opined that should Mr Hurn return to drugs and alcohol, then the risk of reoffending would increase.
I note that Dr Westmore also emphasised that as Mr Hurn is now 52 years old, it is generally accepted that advancing age and maturation can soften antisocial qualities people might express when younger. He considered some degree of maturation had occurred in Mr Hurn, and mentioned that Mr Hurn considered he had developed personally since in custody and had improved self-esteem.
The nature of the harm Mr Hurn may however cause if he recommences to consume alcohol and/or drugs, which has not been tested outside the prison setting, may lead him to engage in acts of violence towards family members or other persons, or property.
Given this risk, the issue for consideration is whether the nature of the risk is unacceptable. As noted in clause 9.1.2(1), decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. This principle is consistent with the comments of Davies J in Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81 as follows:
The seriousness of the crime is an important consideration. The more serious the offence the greater the affront there has been to the community and the greater the necessity there is to preclude recidivism.
The nature of the offence is of particular significance in the case of an immigrant who, in substance, seeks to remain in Australia so as to become fully absorbed into the Australian community. Yet, by the nature of his crime, he may have placed himself among the class of persons whom Australia will not accept for entry. The community may prefer to deport the criminal because he no longer meets the criteria which the community, having a choice as to who will and who will not become members of its community, has laid down for entry to Australia…
I have noted above Mr Hurn’s statements that he feels remorse for his crimes, and has recently come to a realisation of the impact of his actions on others. I have also noted above, the evidence of persons who gave their support to him at the Tribunal.
Ultimately I am satisfied that given Mr Hurn’s pattern of offending, the consideration of the risk to the Australian community should Mr Hurn commit further offences or engage in other serious conduct is a real one, and is unacceptable. It may include crimes against members of his family and others, as has already occurred. Accordingly that weighs heavily in favour of cancelling Mr Hurn’s visa.
My conclusions regarding the protection of the Australian community
In considering the protection of the Australian community, I have had regard to the nature and seriousness of Mr Hurn’s conduct, and the risk to the Australian community should he commit further offences or engage in other serious conduct. I have found in the paragraphs above in regard to both limbs, based on his general conduct and criminal history, and considering them cumulatively, that the evidence weighs heavily in favour of cancelling Mr Hurn’s visa.
Strength, duration and nature of the person’s ties to Australia
Clause 9.2 of Direction no. 55 provides that when exercising the discretion under s 501 of the Act, decision-makers must have regard to:
a)How long the person has resided in Australia, including whether the person arrived as a young child, noting that:
i.Less weight should be given where the person began offending soon after arriving in Australia; and
ii.More weight should be given to time the person has spent contributing positively to the Australian community.
b)The strength, duration and nature of any family, social and/or employment links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
As noted in the clause 6.3 principles, a higher level of tolerance of criminal or other serious conduct may be afforded in relation to a non-citizen who has lived in the Australian community for most of their life or from a very young age. The length of time a non-citizen has been making a positive contribution to the Australian community and the consequences of a visa cancellation on minor children and immediate family members in Australia are also relevant considerations.
I note that Mr Hurn arrived in Australia in 1968 when he was seven years old. By way of background, I note that he attended several schools, and was bullied because he could not read or write. He described how school was an ordeal for him. Mr Hurn gave evidence that at a primary school, after he had produced a lizard from under his desk and caused one of the girls to scream, the teacher made him wear a girl’s dress, which he was not permitted to take off until he had bent over and been hit with the yardstick. He said that he got the yardstick a number of times.
The Applicant said that he was humiliated on various other occasions such as being called to read in front of the class, when clearly he could not. Mr Hurn said that he left school just before his fifteenth birthday. Mr Hurn told Dr White that he was beaten up all the time at school, and Mr Hurn expressed the view to Dr Westmore that his violent behaviour arose from being beaten up as a boy.
When considering what contribution Mr Hurn has made to the Australian community in terms of his employment, I noted that after leaving school Mr Hurn worked as a part-time shop assistant for a time. He then left home, partly because he did not get on with his stepfather whom his mother married when he was approximately 10 or 11 years old, and who was violent. He said he then worked on a farm looking after horses and cows. Mr Hurn had a number of other part-time and short term positions on building sites, at a bakery, and an aluminium factory. When I asked him if he had had any longer term employment, Mr Hurn said that he had worked for a floor coverings company for two years, but that he had left because he did not approve of the way his employers were treating their daughter.
I noted also that Mr D Hardi who gave evidence by telephone at the Tribunal told me that in approximately 2003/2004, he had employed Mr Hurn as a wardrobe installer, and doing other jobs at his factory. He said that Mr Hurn also built partitioning for their offices, and was generally multi-skilled. The evidence regarding the duration of the employment was somewhat unclear, Mr Hardi saying that it may have been either 9 – 12 months, or six months. He said that Mr Hurn left him in 2004 to return to be a fisherman in Queensland, and that they did not make contact again until 2007 when Mr Hurn was in prison in Port Lincoln.
In considering the strength, duration and nature of Mr Hurn’s ties to Australia, I am mindful that he was first convicted of a criminal offence in 1975, approximately seven years after arriving in Australia, when he was almost 15 years old. As noted above, he was then convicted of multiple offences, some relatively minor, but on four occasions he has committed assaults (twice in 1990, once each in 1997 and 2002), and the most serious charges being the two rapes and burglary. He most recently spent seven and a half years in custody.
Mr Hurn has some ties with the community via his sisters and two of his adult children, as well as in regard to the employment he has undertaken, and the future employment offered by Mr Hardi.
Mr Hardi said that he did not know details of Mr Hurn’s assaults or the rapes, and was not in a position to judge him. He said that Mr Hurn knew he had to do the time for his crimes, and that both he, Mr Hardi, and others knew Mr Hurn felt true remorse. Mr Hardi said that either way Mr Hurn’s past did not affect him, or the business. He came to the Tribunal offering Mr Hurn fulltime employment on his release from detention, and stated that he was interested in assisting Mr Hurn with his re-integration into society.
Mr Hurn’s sisters, Ms Carthew (half sister) and Ms Hompas gave evidence before the Tribunal. Both were very supportive of Mr Hurn, and whilst they did not have full details of his criminal conduct, stated that they would have visited him more often if they could have done so while he was incarcerated, and spoke warmly of remaining close to him. Ms Hompas had also offered to provide accommodation to Mr Hurn on his release from prison.
Mr Hurn’s eldest daughter, Ms N, is 32 years old and has four children. She told me her eldest child, a girl of 13, is very close to Mr Hurn. Ms N said that she did not see her father from the time of her mother’s separation from him when she was two or three years old for approximately 11 years. She said that as a teenager she was rebellious, and left home, but then went to live with her father for three years. The evidence of Mr Hurn and other evidence before me indicates that the actual period during which she lived with her father may have been one or two years.
Ms N also gave evidence of Mr Hurn flying home from Queensland every eight weeks to visit her in 2002/2003. I accept that she was trying to emphasise her affection for her father, but ultimately her assertion appears to have been an exaggeration. At page 150 of Exhibit R4 there is a prison file note dated February 2005 which indicates that Mr Hurn was having difficulty locating Ms N because he wanted to stay with her. Mr Hurn did live with Ms N and her children for some time when he was on home bail detention. She explained that that was why her eldest daughter was so close to him. Mr Hurn’s home bail detention in 2005, lasted only weeks before he removed the bracelet and absconded.
It was put to Ms N that her evidence regarding the frequency of her telephoning with Mr Hurn in recent times was also exaggerated. I am satisfied from the evidence that she has kept in contact by telephone, but accept also that the frequency was exaggerated. The exact frequency cannot be established without documentary evidence which I did not have before me.
I am also mindful of Ms N’s evidence regarding visiting Mr Hurn in prison, and note Mr Tremelling’s concerns regarding the accuracy of records provided in that regard. Whilst I cannot be certain of the complete accuracy of the records, I have noted the document, and what it demonstrates on its face. The evidence regarding visits to Mr Hurn in Port Lincoln Prison is that there were very few from family because of the distance from their homes and the cost of travel.
Both Mr Hurn’s two eldest daughters are in recent times amongst his major ties to Australia. He renewed contact with Ms S, daughter of his second wife, whom he had not seen for some 11 years, after her mother died in 2009. Ms S is 20 years old, and told me that she suffers anxiety, depression, bi-polar disorder and mild schizophrenia. She lives in Victoria in a caravan park and is impecunious. She appears to be very fond of her father, and told me that her mental health would suffer if he were to be removed from Australia. She has begun investigating the possibility of moving to England should Mr Hurn be deported.
As noted above, Mr Hurn has not been in contact with his adult sons, half brothers Mr D and Mr J since his separation from their mothers many years ago. He has also not been in contact with his youngest daughter Ms T, now 12, since the day before her first birthday, although he says that he paid child support at various times. If he is to be removed from Australia, the chances of resuming contact with Ms T would become more remote.
Mr Hurn’s closest friends are Mr Rosser and Ms Fox. They have been loyal friends and visitors to him while he was in prison, and have offered to provide accommodation for him if he is released.
Mrs Bristow (mother-in-law of Mr Rosser), said that Mr Hurn had asked her to be his ‘Ma’ after he lost his own mother, and noted that Mr Hurn had raised $751 from his prison community for the flood victims in Queensland. She emphasised his contribution to the community in this way, also emphasising Mr Hurn was a changed man and would contribute to society. She said that following his anger management courses in prison, he was now a respectful person.
I have also noted from the evidence before me that Mr Hurn has assisted at the prison as a mentor for other inmates as well as working in various areas of the prison including the prison farm.
Mr Jones, the chaplain at Port Lincoln Prison gave evidence to say that he had known Mr Hurn for two and a half years, commented on his rehabilitation, and stated that he felt Mr Hurn had more support in Australia than in England.
In coming to a conclusion regarding the application of clause 9.2 of Direction no. 55, I am not satisfied from the evidence before me that Mr Hurn has contributed positively to a large extent to the Australian community in the terms of clause 9.2. As noted above, he has had some employment, and he has family ties, and a relationship with certain of his children, grandchildren and two sisters. All his five children are Australian citizens, and his four grandchildren are also citizens. Their contact with Mr Hurn, particularly over the past seven and a half years has been mainly by telephone, and if he were to be removed to the UK, the children would be deprived of having their grandfather physically present in their lives.
From the above, I find that the consideration of clause 9.2 weighs somewhat in Mr Hurn’s favour.
Best interests of minor children in Australia affected by the decision
Direction no. 55 requires that the Tribunal determine whether visa cancellation is, or is not in the best interests of the child, and, indeed, each child under the age of 18 years: clauses 9.3(1), (2), (3).
Clause 9.3(4) lists a number of factors that must be considered where relevant in respect to each child. They include:
a) The nature and duration of the relationship between the child and the person. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) The extent to which the person is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c) The impact of the person’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d) The likely effect that any separation from the person would have on the child, taking into account the child's ability to maintain contact in other ways;
e) Whether there are other persons who already fulfil a parental role in relation to the child;
f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) Evidence that the person has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the person’s conduct.
Only one of Mr Hurn’s children is under the age of 18. He last saw Ms T who is twelve years old, a day before her first birthday, although he says he would like to make contact with her. He says he supported her financially for some time, but has not seen her or her mother since her mother left him in 2000 or 2001. I had no documents to corroborate the evidence that Mr Hurn had been maintaining Ms T. It will be difficult for Ms T to have the opportunity of getting to know her father if he is removed from Australia. At present there are no signs that she will be in contact, and he has not seen her for 11 out of her 12 years. Accordingly, I am satisfied that the likelihood of a resumption of contact is remote, despite Mr Hurn’s expressed wish to see Ms T. It can only be assumed that a person or persons, including perhaps her mother, fulfil a parental role in relation to Ms T. There is no evidence that Mr Hurn’s behaviour has been detrimental to her. The Tribunal has no information about Ms T’s views about her father, and her wishes in respect to their future relationship. I find therefore that the evidence regarding Ms T points to her best interests being served somewhat if Mr Hurn’s visa were not to be cancelled.
The next consideration as far as minor children goes, is that Ms N has four children under 18 with whom Mr Hurn is connected. I understand this is particularly so with regard to Ms N’s eldest daughter, aged 13, although the evidence was that the child lives in shared care with her father. Mr Hurn has not met Ms N’s youngest child, aged five, but anticipates seeing much more of Ms N and her children if he is released into the community. Up to now, and during his incarceration, Ms N and her children have mainly kept telephone contact with Mr Hurn, which Ms N said has been more than once daily since the Applicant has been in immigration dentention, and was two to three times a week when he was in Port Lincoln Prison.
Ms N told me that the impact on her children if Mr Hurn were to be removed from Australia would be terrible, and that they would never see him again because they could not afford to go to the UK.
As to clauses 9.3(4)(g) and (h), there is no evidence before me that Mr Hurn has abused or neglected any minor child, and I do not have evidence to satisfy me that any of the children have suffered or experienced physical or emotional trauma arising from Mr Hurn’s conduct. He said that he contributed to his children’s upkeep financially, but was indefinite on the timing or amounts. I am satisfied that because he has only worked sporadically, any payments he may have made have also been on that basis.
I find from the evidence that it would be in the best interests of each of Ms N’s children if they could maintain a face to face relationship with their grandfather who would be just that, and yet not fulfil a full time parental role.
Accordingly, a consideration of the best interests of Ms T and Mr Hurn’s grandchildren weighs somewhat against cancelling Mr Hurn’s visa.
OTHER CONSIDERATIONS
Clause 10 of Direction no. 55 provides a non-exhaustive list of other considerations that must be taken into account, if relevant. The first non-primary consideration listed in clause 10 is the effect of cancellation on the person’s immediate family in Australia, if those family members are Australian citizens, permanent residents or people who have a right to remain in Australia indefinitely. The evidence before me was that if Mr Hurn’s visa is cancelled, and he is required to leave Australia, his immediate family, which includes his two sisters, his two adult daughters, and four grandchildren will all be adversely affected. Mr Hurn’s sisters and his eldest daughter have given evidence that they would not be able to visit him in the UK due to financial constraints, but could keep in touch by telephone, as they have been doing for the time he has been incarcerated. Ms Hompas said that she would never see Mr Hurn again, because she has a fear of flying, and would not contemplate leaving Australia.
Ms S is the only one of his family who expressed a desire to join her father in England if he were to be removed from Australia. The evidence was that she lives in a caravan park in Victoria, and that Mr Hurn was trying to send her money to assist her. Given the state of Ms S’s health, and impecuniousness, it is unlikely she would be able to join Mr Hurn in England.
I am also required to consider clause 10(1)(b), any impact on Australian business interests if Mr Hurn is to be returned to the UK. Mr Tremelling submitted that Mr Hardi’s business would be adversely affected, and suggested he had been holding the position open for Mr Hurn. I did not accept that submission, as Mr Hardi’s evidence was that his business had been thriving without Mr Hurn’s input, and that he was offering Mr Hurn employment because of his past good work, and to assist him to re-integrate into society. Accordingly I don’t accept there would be any impact on Australian business interests if Mr Hurn were to be returned to the UK.
As to clause 10(1)(c); the only evidence regarding the rape victim is the Victim Impact Statement at G-30 which is reproduced in part in Rice J’s sentencing remarks of 27 June 2006. It does not deal with visa cancellation. There is no evidence regarding how Mr Hurn’s former neighbours in whose home the rape took place, would react to any deportation.
As to clause 10(1)(d); I am mindful that Mr Hurn has not lived or visited the UK since he was seven years old. However his first language is English, he is 52 years of age, in good health (medications include Omeprazole and Aspirin), and his father, now aged approximately 77, with whom he has again made contact after an absence of contact for some 26 years, is there. Mr Hurn also has other relatives such as half siblings in the UK whom he has not met. His evidence was that he would not be able to find the sort of support he would be able to obtain in Australia, but I am mindful that he has no knowledge of what the British system can offer its citizens.
Mr Prince also drew to my attention the fact that Mr Hurn has made some inquiries about returning to the UK. Page 89 of Exhibit R4 includes a file note by a social worker dated 16 March 2011 which records that: Tony would like to transfer to England in order to work with his father. Phone call made to John Eitel who will send forms to be completed. He explained the process to Tony and said the process may take 12 to 18 months. Mr Hurn said that he could not work as a mechanic with his father, or run the business. I am satisfied there would be no specific cultural or social issues facing Mr Hurn if he is returned to the UK, although there would naturally be a period of adjustment.
I do not underestimate that it is likely to be difficult, particularly at first, and that he will miss his sisters, two daughters with whom he is in touch, his grandchildren, and his friends in Australia. However there are means of communication easily and at low cost available in order to keep in touch.
Having regard to these matters, my finding is that overall, the other considerations weigh somewhat against the cancellation of Mr Hurn’s visa.
CONCLUSIONS
In order to come to a conclusion, regarding whether the discretion should be exercised for Mr Hurn’s visa to be cancelled, I have had to consider the primary and other considerations listed in Direction no. 55, and any other matters that may be relevant. In doing so, I have been mindful of what the Tribunal (Justice Downes, the former President, and Senior Member McCabe) observed in Re Visa Cancellation Applicant and Minister for Immigration and Citizenship [2011] AATA 690 at [49]:
The balancing process contemplated by the Direction is not a simple mechanical exercise. One does not reach a conclusion by assigning values to particular considerations and tallying the differences. Beginning with each of the primary considerations – and without forgetting other considerations that are generally regarded as being of lesser weight – we must ask ourselves: what is the preferable decision in this case?
The Tribunal in that case was commenting on the predecessor to the current Direction, being Direction [no. 41] – Visa refusal and cancellation under s501, which differs in a number of respects to the current Direction. However, the task and its inherent difficulty remains the same.
There can be no disagreement that Mr Hurn does not pass the character test because he has a substantial criminal record.
I have also had to take into account the principles as enunciated in clause 6.3 of Direction no. 55. I am mindful that persons who commit crimes of violence (Mr Hurn has been convicted of four assaults), and particularly those of a sexual nature, especially against vulnerable persons such as the 14 year old victim who was raped by Mr Hurn, should generally expect to forfeit the privilege of staying in Australia.
In regard to a consideration of clause 9.1 of Direction no. 55, protection of the Australian community; it is not in dispute that the nature and seriousness of Mr Hurn’s conduct to date is that he has engaged in serious criminal activity, involving violence, to the extent that he has been found to not pass the character test.
I have discussed the risk to the Australian community should he commit further offences or engage in other serious conduct in the paragraphs above. The risk of Mr Hurn reoffending in a sexual way was held by Dr Westmore to be within the low to moderate range. He stated that the risk was at the lower end of that particular spectrum; however should Mr Hurn return to drug and alcohol abuse, then the risk of re-offending would move up the spectrum.
Ultimately, I have found that having regard to the protection of the Australian community from criminal or other serious conduct, (clause 9.1), this consideration weighs heavily in favour of cancellation of Mr Hurn’s visa. The risk of further harm to the Australian community by the Applicant is unacceptable.
In regard to a consideration of clause 9.2 of Direction no. 55 with regard to Mr Hurn’s ties to Australia; I have not been able to find that Mr Hurn has contributed positively to a great extent to the Australian community in the terms of clause 9.2. However, he has strong family ties, has been in the workforce sporadically, and has formed close friendships with Mr Rosser and Ms Fox, and Mrs Bristow. Pastor Brett Jones and his future employer have spoken positively of him, and find him a changed man. I find that the consideration of clause 9.2 weighs somewhat in his favour.
In regard to a consideration of clause 9.3 of Direction no. 55 the interests of minor children; I am satisfied from the evidence that if Mr Hurn deals with his alcohol and anger problems on his release as he has indicated he would, on balance he is likely to have a loving relationship with his four grandchildren. He has had no contact with his daughter, Ms T, now 12, since she was one year old, but expressed interest in trying to make contact with her. Accordingly, I find that a consideration of the best interests of Mr Hurn’s child, Ms T, and grandchildren aged under 18 years weighs somewhat against cancellation of Mr Hurn’s visa.
There are no relevant considerations in relation clause 9.4 of Direction no. 55.
In regard to a consideration of clause 10 of Direction no. 55, other considerations; I find, as detailed in the paragraphs above, that these considerations weigh somewhat against the cancellation of Mr Hurn’s visa.
Notwithstanding that the best interests of Mr Hurn’s children which is a primary consideration, weighs somewhat against cancelling his visa, and a consideration of clause 9.2 weighs somewhat in his favour, ultimately, an assessment of the other primary consideration, the protection of the Australian community, (clause 9.1), weighs heavily in favour of cancellation.
For the reasons I have discussed above, and viewing the situation of the various primary and other considerations cumulatively, and with more weight being given to the primary considerations as required, on balance, consideration favours the decision to cancel the applicant’s visa. The correct or preferable decision is that I affirm the decision under review.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 116 (one hundred and sixteen) paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member .................[sgd].......................................................
Associate
Dated 19 February 2013
Dates of hearing 12 and 13 February 2013 Solicitor for the Applicant Mr G Tremelling, Legal Aid NSW Solicitor for the Respondent Mr R Prince, Australian Government Solicitor
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