Artigas and Minister for Immigration and Citizenship
[2011] AATA 411
•17 June 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 411
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/1343
GENERAL ADMINISTRATIVE DIVISION ) Re Zenaida Artigas Applicant
And
Minister for Immigration and Citizenship
Respondent
DECISION
Tribunal Mr R P Handley, Deputy President Date17 June 2011
PlaceSydney
Decision The 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 the Applicant’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 – length of time ordinarily resident in Australia prior to engaging in criminal activity – other considerations - family ties, the nature and extent of any relationships – 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 – decision under review set aside and substituted
RELEVANT ACT
Migration Act 1958 (Cth): s 501
CITATIONS
Rosson v Minister for Immigration and Citizenship [2011] FCA 194
OTHER AUTHORITIES
Direction [no. 41] - Visa Refusal and Cancellation under section 501
REASONS FOR DECISION
17 June 2011 Mr R P Handley, Deputy President 1. Ms Artigas 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 Artigas was born in the Philippines in 1952 and is a Filipino citizen. She first arrived in Australia on a student visa on 13 October 1985, at the age of 32. Ms Artigas was the holder of a Class BB Return (Residence) Subclass 155 (Five Year Resident Return) visa at the time of the cancellation of her visa.
3. Ms Artigas has a criminal record in Australia dating from 15 June 1986 when, in respect of five counts of ‘obtaining a benefit by deception’, she was ordered to enter into a recognizance and, in respect of a further count of the same offence, to perform 200 hours of community service. On 6 May 1992, she was convicted of two counts of fraud and one count of failing to appear – she received a fine and was ordered to enter into a further recognizance for a count of ‘dishonestly obtaining a financial advantage by deception’. On 26 October 1993, she was sentenced to a total of two years and nine months imprisonment with a non-parole period of nine months, for three counts of making a false statement to obtain a financial benefit, sentences which were confirmed on appeal on 15 April 1994.
4. On 10 October 1997, Ms Artigas was convicted of two counts of ‘fraudulent misappropriation’ and two counts of ‘obtain property by false pretences’ and sentenced to total of four years imprisonment with a non-parole period of two years and six months. These sentences were confirmed on appeal on 8 December 1999. On 25 June 1998, she was found to have breached her parole (an offence dating, it would appear, from the 1993 conviction) and was ordered to serve the remainder of her sentence. On 16 April 1999, Ms Artigas was convicted of three counts of making a false statement, three counts of making a false instrument and eight counts of using a false instrument receiving a total of six months imprisonment.
5. Most recently, on 7 May 2009, Ms Artigas was convicted of nine counts of ‘obtaining benefit by deception’ and sentenced to a total of six years imprisonment with a non-parole period of four years dating from when she was taken into custody on 13 July 2007 and expiring on 12 July 2011.
6. On 22 March 2002 the Department of Immigration and Multicultural and Indigenous Affairs sent Ms Artigas a warning that conviction for any further offences would result in the cancellation of her visa being reconsidered.
7. By letter dated 14 July 2010, the Department of Immigration and Citizenship (the Department) notified Ms Artigas of its intention to consider cancellation of her visa and invited her to respond. Ms Artigas’ migration agent made an undated response on her behalf. By letter dated 12 January 2011, the Department provided Ms Artigas with a copy of further information it had obtained and invited a response. The agent responded with submissions on 27 February 2011.
8. On 5 April 2011, a delegate of the Minister notified Ms Artigas of the cancellation of her visa. On 12 April 2011, she applied to the Tribunal for a review of the decision.
9. Ms Artigas’ five children provided the Tribunal with statements in support of their mother and gave evidence at the hearing. A forensic psychologist, Tim Watson-Munro, and a gambling counsellor, Michelle Zavaglia, also provided statements and gave evidence at the hearing.
RELEVANT LAW AND POLICY
10. 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)(a) 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.
11. Ms Artigas has been sentenced to a term of imprisonment of six years, with a non-parole period of four years, for nine counts of ‘obtaining benefit by deception’. She has also been sentenced to terms of imprisonment exceeding 12 months on previous occasions. Thus, she does not pass the character test. It was therefore open to the Minister to cancel Ms Artigas’ 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.
12. 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).
(Original emphasis.)
13. 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
14. The ‘primary’ considerations relevant in Ms Artigas’ case are the protection of the Australian community and the length of time that she was ordinarily resident in Australia prior to engaging in criminal activity. She was not a minor when she began living in Australia and there appear to be no relevant international obligations in her case.
the protection of the australian community
15. 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
16. With regard to the seriousness of Ms Artigas’ conduct, the Tribunal notes that serious theft is among the examples of offences and conduct that are considered serious listed in paragraph 10.1.1(2) of Direction No 41. Ms Artigas has on three occasions – in October 1993, October 1997 and May 2009 – been convicted of offences involving what amounts to serious theft, involving on at least two occasions, significant sums of money. In addition to these three occasions, on 16 April 1999 Ms Artigas was sentenced to a cumulative total of six months imprisonment for six counts of making false instruments and three counts of using a false instrument. All her convictions have involved dishonesty or fraud.
17. Paragraph 10.1.1(3) of Direction No 41 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.
18. In sentencing Ms Artigas for her most recent offences in the District Court of NSW on 7 May 2009, Judge Ellis noted that Ms Artigas had pleaded guilty to all nine counts of ‘obtain benefit by deception’. However, having been charged with the first six offences on 27 February 2007 and released on bail, she then committed the last three offences while on bail. The Judge commented:
The facts reveal a systematic, calculated and heartless series of deceptions made upon various individuals who had extended friendship to the offender over a number of years. The offences involved continued false assurances as to repayment and in relation to some of the victims, the deceptions were continued and extended despite the clear financial hardship which was likely to be caused to the individuals.
…in this particular case, there are seven victims and a total of just over three quarters of a million dollars taken from those individuals. As noted, there is no likelihood of repayment, no evidence of demonstrated sacrifice or hardship caused by reason of the efforts made toward restitution. Indeed there is no evidence of significant motivation. There is some evidence that she attended the casino but unlike many cases, there is no evidence before the Court of losses. On the other hand there is evidence of a high lifestyle in the sense of overseas trips, driving of a European car, the possession of expensive clothing and jewellery.
The Court has assessed the overall criminality as being in the high category…
The Court is unable to conclude that she is unlikely to re-offend. The Court is unable to conclude that she has good prospects of rehabilitation. Given the extended time period over which this offending took place and given the numerous offences of dishonesty upon her record, the question of rehabilitation is exceedingly vexed. Suffice it to say that she is unable to gain the benefit of positive conclusions of this Court in terms of the mitigating factors of unlikely to re-offend and good prospects of rehabilitation.
The question of remorse is somewhat difficult. She has pleaded guilty but there has been no apology, no expression of remorse to the victims although there have been many opportunities for her to do that. But she has acknowledged her involvement, she has acknowledged the consequences of her involvement and she has worked hard since her incarceration.
19. The total effective sentence of six years imprisonment with a non-parole period of four years is an indication of the seriousness with which the Judge viewed the offences.
20. The Tribunal has also been provided with the remarks of Judge Johnston in sentencing Ms Artigas on 10 October 1997 for two counts of fraudulent misappropriation and two counts of obtaining property by deception to which she had pleaded guilty. The Judge noted that as a result of dealings with Ms Artigas, the victim had lost about $250,000. He said:
Objectively these were very serious offences which, as the Crown has correctly observed, has created havoc in the lives of many innocent and vulnerable people with whom the prisoner was able to develop a bond of friendship. Even when she was being sentenced by his Honour Judge Viney the prisoner was committing other offences.
21. It appears that Ms Artigas was on bail prior to her sentencing by Judge Viney on 26 October 1993. She was on parole when she committed some of the offences for which she was sentenced by Judge Johnston on 10 October 1997. Judge Viney sentenced Ms Artigas to two years and nine months imprisonment with a non-parole period of nine months, and Judge Johnston sentenced Ms Artigas to four years imprisonment with a non-parole period of two years and six months.
22. The Department of Corrective Services records for Ms Artigas list only one misconduct charge while she has been in prison. On 16 October 2009 she was reprimanded and cautioned for “Poss Create Proh Goods”. Ms Artigas said when she was transferred from Dillwynia Correctional Centre (CC) to Emu Plains CC she sought permission to take with her a bottle of baby oil into which she had inserted some mint leaves from the prison garden. She used this mixture to relieve the lower back pain and sciatica from which she suffers. Even though she had permission to take the bottle with her to Emu Plains, four months later she was reprimanded for having this. When she explained what had happened to the area manager, he cautioned her.
23. With regard to mitigating factors, Judge Ellis referred to a report dated 23 October 2008 from a psychologist, Emma Collins, who assessed Ms Artigas as satisfying the required diagnostic criteria under the Diagnostic and Statistical Manual of Mental Disorders: fourth edition, text revision (DSM-IV TR), for “pathological gambling”. The Judge noted Ms Collins’ opinion that Ms Artigas needed ongoing counselling for her gambling addiction. Ms Collins said Ms Artigas used gambling as a means of escape at stressful times in her life and that she needed to develop more pro-social coping skills.
24. Ms Artigas told the Tribunal that she would use gambling as a means of escaping from relationship problems. She said she has made poor choices with her relationships with men and will not be doing this again. If she is released into the community her children will monitor her relationships in the future. All Ms Artigas’ children said that they had a much better understanding of their mother’s problem now than 10 years ago (in 2001) when they provided statements in relation to the then proposed cancellation of her visa. Ms Artigas’ second oldest daughter said they did not understand the full extent of their mother’s problem until they saw Ms Collins’ report about three years ago.
25. While Ms Collins’ report of 23 October 2008 appears to be the first psychological assessment of Ms Artigas, I note it does not specifically deal with her depression. This does not seem to have been diagnosed until the recent assessment by the forensic psychologist, Tim Watson-Munro. In a report dated 27 February 2011, he said that it appeared she had been suffering from severe depression for many years which has remained undiagnosed. He stated:
… there has always been a direct correlation between her mood state, her gambling and associated with this is a significant impact upon her judgement. …
She described longstanding feelings of depression and is still I believe working through the initial shock and grief referable to the breakdown of her first marriage which in turn has been significantly galvanised and reinforced by the failure of two (2) subsequent relationships. …
Her depression and anxiety have been further compounded by her great sense of shame concerning her actions and the impact that this has had upon her family.
26. Mr Watson-Munro said the clinical history Ms Artigas’ described is a complex one. He said it is apparent that she was emotionally shattered following her discovery that her husband and the father of her children had been involved in a long term extra-marital affair in which he had fathered three other children, and “she drifted into a Major Depressive illness according to DSM-IV TR criteria”. Mr Watson-Munro said “it is apparent there is a strong nexus between her untreated psychiatric problems, her gambling and her forensic history”. In a later report dated 21 May 2011, Mr Watson-Munro states “it is apparent that there is a direct nexus between her depression, her development of her gambling and her drifting into criminal behaviour to support her addiction”.
27. In oral evidence, Mr Watson-Munro said that gambling was a form of therapy – a form of escape – when Ms Artigas was highly depressed and anxious. It was a symptom of her long standing depression and anxiety, her low self-esteem and her loneliness. He said it is also not uncommon for a person suffering such underlying psychological problems to want to surround themselves with luxury items.
28. Ms Artigas’ depression is also referred to in a report dated 19 May 2011 provided by Michelle Zavaglia, a gambling counsellor and regional co-ordinator for Wesley Mission Western Sydney Counselling Services. Ms Zavaglia states:
The Depression Anxiety and Stress Screen (DASS) were administered to Ms [Artigas] on 13th September 2010, the scores obtained were D: 36 A: 28 and S: 34. The scores obtained for depression and anxiety both fall within the extremely severe percentile, and the score obtained for stress falls into the severe percentile, indicating that she is experiencing severe symptoms of depression and anxiety – which is indicative of people with serious problem gambling.
29. In oral evidence, Ms Zavaglia said there is often a significant event or events leading a person to gamble (in this case, the breakdown of Ms Artigas’ marriage) and loneliness and boredom are often factors.
30. In my view, there can be no doubt that Ms Artigas has committed a number of very serious offences involving fraud and dishonesty which have had serious consequences for some of her victims who had extended their friendship and trust to Ms Artigas. The lengthy sentences handed down, the comments made by Judge Ellis in sentencing Ms Artigas on 7 May 2009 and Ms Artigas’s history of similar offences over a number of years make this clear.
31. However, there are relevant mitigating circumstances. Until very recently, Ms Artigas has suffered from undiagnosed depression, of which gambling, in this case, is a symptom. While she has in the past had counselling for gambling, it appears she has never had treatment for her depression, which Mr Watson-Munro told me is the underlying cause of her gambling.
32. I do not accept the submission made by Ms Baggett, for the Minister, that Ms Artigas has sought to minimise the seriousness of her crimes and of her role in them. In her evidence, Ms Artigas said that she accepts full responsibility for her offences and is deeply remorseful for what she did and the pain and hardship caused to her victims. The fact that she sought to explain the circumstances in which the offences occurred is a natural reaction for someone in her situation. Nevertheless, there is no question of the Tribunal going behind the convictions or the material facts upon which the convictions were based.
The risk that the conduct may be repeated
33. 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 Artigas’ 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.
34. An Immigration Report prepared for the Department by the Probation and Parole Service, Windsor District Office, on 19 October 2010 (the Immigration Report), states that Ms Artigas “has mostly complied with Correctional Centre routines and is employed as a prison Clerk in a trusted position of responsibility where she receives positive work reports”. The report expresses reservations about her not reoffending “particularly as [Ms Artigas] continued to just recently demonstrate aspects of deceptive behaviour to this Service by being less than forthcoming regarding the extent of her criminal history”. To what this comment refers is not clear to the Tribunal. However, it appears to relate to a period of past supervision by the Probation and Parole Service. Of concern is Ms Artigas’ evidence that she was only interviewed by the officer who prepared the Report for a period of six minutes and that despite the officer telling her that she would show Ms Artigas a draft of the Report for comment before submitting it, the officer did not do so.
35. The Report notes that when asked about her criminal history, Ms Artigas denied having committed offences overseas. The Minister has provided the Tribunal with information obtained from the US Federal Bureau of Investigation (FBI). This appears to refer to Ms Artigas being arrested and charged with forgery, possessing a bad cheque and theft of personal property in August and September 1991. However, there is no record of any conviction. Ms Artigas told the Tribunal that she was arrested for questioning but after she explained what had occurred, the police let her go.
36. With regard to observance of judicial orders, I note that Ms Artigas was still on parole when she committed some of the offences for which she was sentenced on 10 October 1997. This appears to be the breach of parole of which she was convicted on 25 June 1998 and sentenced to serve the remainder of her term. However, the term seems to have been served concurrently with the offences for which she was sentenced on 10 October 1997. There is also reference in the Department of Corrective Services records to Ms Artigas being convicted of a breach of a recognizance on 10 October 1997 for which she was sentenced to six months imprisonment, again served concurrently with the other offences for which she was sentenced on that day. Finally, I note that in sentencing Ms Artigas on 7 May 2009, Judge Ellis refers to her being charged with six offences on 27 February 2007 and then committing three further offences while on bail.
37. The Immigration Report states that Ms Artigas has engaged well with intervention services while in custody, and then details the program she has completed. Ms Hay, for Ms Artigas, listed the programs as follows:
1)Best Bet – Gambling Problems;
2)Gambling Anonymous Weekly Meetings (In-House);
3)Life Management – Identifying detrimental behaviours, thoughts, feelings and actions. Emu Plains C/C;
4)Positive Life Management – Empowerment techniques and maladaptive behaviours. Salvation Army program;
5)Get Smart Recovery;
6)Depression, Anxiety and Stress – Management of self help & seek help when needed (DAS);
7)Managing Emotions – Coping skills fear, rejections compulsive/obsessive behaviours;
8)Domestic Violence (Out of the Dark) – Don’t remain passively silent when threatened;
9)Kairos Short Journey program – Spiritual Growth;
10)Loss & Grief – To let go the past and move on; and
11)12-step Programme of Gamblers Anonymous.
38. Ms Artigas said she had also completed a Corrective Restoration Community (CRC) program which she was chosen to lead. This is a program to assist in inmates’ transition between prison and the community. Further, she has been a member of the choir, a member of the Prison Fellowship, has completed a TAFE program involving undertaking 19 subjects, and has worked in prison: while at EMU Plains CC as a clerk in the prison dairy, and at Dillwynia CC, where she is currently imprisoned, as a (qualified) barista in the ‘Gloria Jean’s’ outlet in the prison reception area.
39. A reference from the Manager of the outlet states that she has been impressed by Ms Artigas’ “attitude towards her work and her performance on the job”. The Manager states she is confident that Ms Artigas will be able to secure and maintain employment in the “Coffee/Retail Industry” and that her work ethic and professionalism make her highly employable. Ms Artigas said if she is released into the community, she would like to work part-time in one of the three Gloria Jean’s outlets near her daughter’s home where she will be living.
40. Ms Artigas said she has needed good time management skills to organise her days to enable her to undertake rehabilitation programs, work and study. If released into the community, she will use these skills to: enable her to spend time looking after her three grandchildren (for whom she wants to be a role model); undertake treatment for her depression through a mental health plan; continue with counselling and rehabilitation programs (including attending Gamblers Anonymous); work part-time; and contribute to the community through community work such as meals on wheels, volunteering with the Migrants and Refugees Support network (to assist those with similar problems to find help), and teaching Sunday school with her local church (as she used to do). Ms Artigas also referred to the ongoing guidance she will receive from her spiritual mentor, Sister Margaret of Centrecare – Parramatta and Blacktown diocese.
41. Ms Artigas said that in the nearly four years she has been in prison, she has re-examined her life and turned it around. She has changed her attitudes and habits. She wants to be an honest person. She is fully accountable and responsible for her offending behaviour and deeply remorseful for what she did for which she also feels shame and embarrassment. She cannot undo the wrongs but seeks forgiveness and redemption from the people to whom she caused pain and hardship. Unlike the usual practice in her culture, she will be open with her children in the future and will not keep her problems to herself. Her children have supported her in spite of everything.
42. Ms Artigas said that when she was first imprisoned in October 1997 there were no effective rehabilitation programs in place. After she was released from prison, she went to see a counsellor but treatment consisted of her being given tapes to take home and listen to. Her children were still relatively young and she was caring for and supporting them. They were still her primary focus at this time and after a while she stopped the treatment. She was in self-denial and the counselling was very shallow. Ms Artigas said the situation is very different now. She is focussed on her rehabilitation, which will be for the rest of her life. Moreover, she has both the time and commitment to pursue this and the support of her children who have also said they will pay for her rehabilitation where necessary.
43. I asked Ms Artigas about Judge Ellis’ comment on sentencing her on 7 May 2009 that the question of her rehabilitation was extremely vexed. She said when she was first remanded in custody in July 2007 she had to wait her turn to undertake rehabilitation programs. I note that while she may have had counselling for gambling at the time of sentencing, it appears that many of the rehabilitation programs she has undertaken followed later.
44. Ms Artigas acknowledged that the amount of money involved in her most recent fraud and dishonesty convictions was $768,200, of which she lost about $68,000 gambling. Most of the money went to a deposit, mortgage and upkeep of a property purchased by her then partner with whom she was in a relationship at the time. Ms Artigas said that, ultimately, she admitted to one of the victims who had been her friend that she had obtained money from her fraudulently and went with a detective to the police station where she confessed to this and was charged.
45. It is clear from Ms Artigas’ account that she believes her former partner is responsible for her losing a significant part of the money she obtained by deceiving others. She said that because of this, she had intended pleading not guilty to the charges involving the partner’s family but on the advice of her solicitor she pleaded guilty because of her existing criminal record and the adverse effect that this would have on her credibility. Her solicitor’s advice was that she should bring a civil suit against her former partner to recoup the money he had obtained from her and to retrieve furniture she had brought to Australia on the sale of her flat in the Philippines. She has instructed solicitors to commence civil proceedings, which her sister in Belgium is helping her fund, on her behalf against the partner. If she is able to recover money from the partner she will use this to repay the friends she defrauded and not for her own benefit.
46. In his report dated 27 February 2011, Mr Watson-Munro said of Ms Artigas, “there is a strong nexus between her untreated psychiatric problems, her gambling and her forensic history”. He said, “Her depression and anxiety have been further compounded by her great sense of shame concerning her actions and the impact that this has had upon her family”. However, it appeared that Ms Artigas had “used her time in custody in a productive way in terms of thinking long and hard about her position” and had matured.
47. In oral evidence, Mr Munro-Watson confirmed that Ms Artigas suffers from longstanding depression, anxiety, low self-esteem and loneliness. She sought to escape her problems through gambling. He said it is also not uncommon for a person with such underlying psychological problems to surround themselves with luxury items such as those to which the Minister has drawn attention (cars, jewellery etc). During her recent incarceration, Ms Artigas has made considerable progress in her rehabilitation, is more insightful about her condition and is genuinely remorseful. Mr Munro-Watson said it is important that Ms Artigas’ underlying mental health problems are addressed. She needs regular treatment – detailed psychotherapy over an extended period of time.
48. Mr Munro-Watson said he has spoken with Ms Zavaglia about Ms Artigas’ need for further gambling counselling, which he would be happy to supervise. He would also be happy to take her on as a client, or refer her on, under a mental health plan. In his report dated 21 May 2011, Mr Munro-Watson said that apart from treatment for gambling, Ms Artigas needs regular support from a clinical psychologist: “Treatment should involve cognitive behaviour therapy with a focus on impulse control, relapse prevention as well as dealing with her underlying depression and anxiety”. Mr Munro-Watson said Ms Artigas is motivated not to reoffend: planned treatment, family support and supervision, concern about being returned to the Philippines, maturation and learning from rehabilitation are all motivating factors towards her not reoffending. He said the likelihood of her reoffending is minimal.
49. Ms Zavaglia said a person can overcome a gambling addiction with the right motivation and support. Ms Artigas’ circumstances are different now from 10 years ago: her age and greater maturity are important factors – the fact of her being a grandmother and not having to support her family and of her having a greater level of support both from her children and others also contribute. Ms Zavaglia said Ms Artigas seems to have learned in prison that it is safe to be vulnerable. She cares deeply for her family. She wants to change her life and be a parent to her children and a grandparent to her grandchildren. She has expressed genuine remorse and has a strong wish to be part of the community. Ms Zavaglia said she would be personally involved in treating Ms Artigas if she is released into the community. With appropriate treatment, Ms Artigas has good prospects for a full recovery.
50. The Tribunal was also provided with statements from all five of Ms Artigas’ children, all of whom attended the hearing and gave evidence. I was impressed by their support for their mother. The children are mature adults aged between 28 and 37, are obviously close and care deeply for their mother. All said they were not aware of their mother’s underlying problems 10 years ago and, in particular, did not know she had mental health problems and now have a much greater understanding of those problems and the level of support she requires.
51. All the children said they are committed to Ms Artigas’ rehabilitation and to an action plan to achieve this. They will oversee her rehabilitation and provide such financial support as she needs. They will also monitor her relationships and activities and will be strict with her, adopting a sort of parental role to ensure she does not make the same mistakes again. Two of the children said they would support sending their mother back to the Philippines if she reoffends. If Ms Artigas is released into the community, she will live with her second oldest daughter, who is aged 34, and her daughter’s husband and five year old son.
52. In my view, Ms Artigas’ evidence, that of Mr Munro-Watson and Ms Zavaglia, and that of Ms Artigas’ children strongly support a finding that Ms Artigas’ prospects for rehabilitation are very good. While she has a significant history of serious criminal offences, there are mitigating circumstances connected with her undiagnosed depression. With ongoing rehabilitation of the kind described above, I am satisfied that the prospects of her reoffending are minimal. Thus, I am also satisfied that, if released from custody, Ms Artigas poses little risk to the Australian community. I also note that Ms Artigas will be on parole for a further two years and, presumably, subject to conditions in relation to her ongoing rehabilitation.
length of time ordinarily resident
53. The second primary consideration relevant in Ms Artigas’ case - the length of times 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”.
54. According to the Minister, Ms Artigas first offended in January 1986 after having been in Australia for only three months. (The Tribunal has not been provided with evidence of the charge date.) In his sentencing remarks on 10 October 1997, Judge Johnston stated that Ms Artigas “first appeared before the Castlereagh Street Local Court on 15 June 1986 where she received the benefit of a 556A recognizance”. Ms Artigas told the Tribunal that this was the result of her being unable to pay for motel accommodation in Sydney as a result of a dispute between her, five colleagues and their then employer over payment of their salaries. In an undated statement prepared in about September 2010, she said that as a result of their being unable to pay their motel bill, they were charged with obtaining a benefit by deception. Ms Artigas said she explained her predicament to the motel management who, ultimately, testified on her behalf, and some of the charges were dropped. She pleaded guilty to other charges.
55. There is no other information available to the Tribunal about this matter. While generally, such offending so soon after arriving in Australia would tend to favour the exercise of the discretion to cancel a visa under s 501 (Rosson v Minister for Immigration and Citizenship [2011] FCA 194, at [23)], per Rares J), in my view, Ms Artigas’ explanation and the fact she was released on entering into a recognizance, indicates that the matter was not regarded as a serious one. For this reason, I do not consider that this primary consideration, while unfavourable to Ms Artigas, should be accorded any significant weight in this matter.
OTHER CONSIDERATIONS
56. 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 Artigas’ 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 the Philippines, the hardship that may be experienced by both Ms Artigas 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.
57. Ms Artigas is aged 58 and, as noted above, suffers from depression which has only recently been diagnosed and for which she needs ongoing treatment. It appears that appropriate treatment is more likely to be available in Australia where Ms Artigas has a support network in place, both of her family and others. Her family’s support includes financial support for Ms Artigas in obtaining appropriate treatment and in monitoring her progress. I note she also suffers from low back pain and sciatica.
58. In his report dated 27 February 2011, Mr Watson-Munro said if Ms Artigas has to return to the Philippines, he anticipates “a severe escalation in her problems with her having little opportunity for treatment in the Philippines”. In his report dated 21 May 2011, he expressed the opinion that her return to the Philippines would result in:
a severe recrudescence of her depression and anxiety and I would not rule out the possibility of self harm in this case should this woman be prevented from seeing her children and grandchildren and being intrically [sic] involved in their care and development.
59. In his oral evidence, Mr Watson-Munro noted that if Ms Artigas has to return to the Philippines, in the absence of anywhere else to live, she may be compelled to live with an abusive former husband. Ms Artigas has described the breakdown of her first marriage in a number of statements. Ms Artigas’ evidence is that he is 10 years older than her. Mr Watson-Munro noted her fear that if she has to return to the Philippines she will have no option but to cohabit with him because her divorce would not be recognised there. She feared that if this occurred, she would once again be subject to emotional, physical and financial abuse.
60. As noted above, Ms Artigas enjoys a close and loving relationship with her five adult children all of whom are Australian citizens and live in Sydney. She has lived in Australia for approximately 26 years and although she has returned to the Philippines on a fairly regular basis through this period, I accept that she regards Australia as her home and that her links with the Philippines are now minimal and that she has no support network there. Ms Artigas said that her mother is aged 95 and lives with Ms Artigas’ brother a long way from the city. Her other siblings live in Europe and the US. Ms Artigas said her brother could not be expected to support her when he is already supporting their mother.
61. Ms Artigas’ children are already providing financial support for their father (who is 10 years older than Ms Artigas) in the Philippines, who has suffered a stroke. Their evidence is that it would be more difficult to support their mother financially in the Philippines. In Australia, Ms Artigas will live with her second daughter, assist with looking after the grandchildren and, she hopes, find employment to support herself financially. Ms Artigas says that because of her age, it will be much more difficult for her to find work in the Philippines where employers can fix a retirement age of 60 for employees.
62. Ms Artigas’ evidence indicates that her children and grandchildren are, in Ms Hay’s words, “everything to her”. They are her focus for the future. To deprive her of this connection and send her back to the Philippines is likely, as Mr Watson-Munro recognised, to affect her severely, cause her significant distress and adversely affect her mental state. I accept that this would also cause hardship to her children and grandchildren as outlined above. I note that in Filipino culture, grandparents play an important caregiving role in assisting in the upbringing of grandchildren.
63. Ms Artigas has a Bachelor of Arts degree with a major in economics. She has also completed various TAFE and other programs and has had a variety of employment, including a number of responsible positions. She impressed me as an intelligent woman despite the relationship and mental health problems which appear to have dogged much of her adult life to date.
64. As stated above, Ms Artigas received a warning from the Department dated 22 March 2002 that conviction of any further offences would lead to reconsideration being given to the cancellation of her visa. I note Ms Baggett’s submissions on behalf of the Minister that some of the representations made by or on behalf of Ms Artigas in these proceedings are similar to those made in response to a Notice of Intention to Consider Cancelling a Visa in October 2001 that preceded the formal warning. However, whilst I acknowledge that care must be taken in accepting similar representations on a second occasion, in my view, Ms Artigas’ circumstances in 2011 are significantly different from those on 2001 and my assessment is that she and her family were both genuine and honest in providing evidence to the Tribunal.
Conclusion
65. Weighing up the relevant ‘primary considerations’, I am satisfied Ms Artigas’ release into the Australian community poses little risk. She has recently made excellent progress towards rehabilitation and, with the support of her family and others in the community, the risk of her reoffending is minimal.
66. The third primary consideration, the length of time she was ordinarily resident in Australia before engaging in criminal activity, is unfavourable to Ms Artigas because she was only in Australia for about three months before committing an offence but, for the reasons explained above, in my view, this should not be given any significant weight.
67. With regard to the ‘other considerations’, I accept that Ms Artigas’ return to the Philippines would cause hardship to both her and her children and grandchildren. After living in Australia for 26 years, she has few ties with the Philippines. In particular, a return to the Philippines is likely to have a severe adverse effect on her health. Lastly, I have noted that Ms Artigas received a formal warning from the Department in 2001.
68. Having had regard to both the primary and other considerations, my overall conclusion, with particular regard to the low risk posed by Ms Artigas to the Australian community when considered in the light of her excellent progress towards rehabilitation, is that the discretion in s 501(2) of the Act should be exercised in Ms Artigas’ favour and that her visa should not be cancelled.
Decision
69. The decision under review is set aside and a decision substituted that the discretion in s 501(2) of the Act should be exercised in Ms Artigas’ 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]........................................
Nicholas Olson, AssociateDates of Hearing 7 and 8 June 2011
Date of Decision 17 June 2011Representative for the Applicant Bronwyn Hay, Bronwyn Hay Solicitor and Attorney
Representative for the Respondent Emily Baggett, DLA Piper Australia
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