BAKER and MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2011] AATA 622
•5 September 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 622
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/2339
GENERAL ADMINISTRATIVE DIVISION ) Re SOLOMON BAKER Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Ms N Isenberg, Senior Member Date5 September 2011
PlaceSydney
Decision The Tribunal affirms the decision under review. ......................[sgd]......................
Ms N Isenberg
Senior Member
CATCHWORDS
IMMIGRATION – visa cancellation – character test – substantial criminal record – whether Tribunal should exercise discretion not to cancel Applicant's visa pursuant to s 501(2) of the Migration Act 1958 – Minister’s Direction No 41 applied – primary considerations – protection of the Australian community – seriousness and nature of the conduct – risk that conduct may be repeated – evidence of rehabilitation – whether a minor when person began living in Australia – length of time ordinarily resident in Australia – best interests of the child – other considerations – family ties and nature and extent of any relationship with the Australian community – links to the country to which they would be removed – hardship likely to be experienced by the person or their immediate family members –whether the person has been formally advised in the past of conduct that brought the person within deportation provisions – decision under review affirmed.
Migration Act 1958 (Cth), ss 499, 500, 501.
Green v Minister for Immigration and Citizenship (2008) 100 ALD 346; [2008] FCA 125
Gunner and Minister for Immigration and Multicultural Affairs [1997] FCA 1492
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Kumar and Minister for Immigration and Citizenship (2009) 107 ALD 178; [2009] AATA 124
Minister for Immigration and Ethnic Affairs v Daniele (1982) 5 ALD 135; [1981] FCA 212
Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 40 FCR 493; [1993] FCA 75
Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358; [2010] FCA 1445
Minister for Immigration and Citizenship v SRT (1999) 91 FCR 234; [1999] FCA 1197
R v Dunn (2004) 144 A Crim R 180
R v Henry (1999) 46 NSWLR 346
Tuatara v Minister for Immigration & Citizenship [2010] FCA 1324
Tui and Minister for Immigration and Citizenship [2010] AATA 689
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133; [2001] FCA 568
Weti and MIMA [2006] AATA 1054
Direction [no. 41] - Visa Refusal and Cancellation under section 501
REASONS FOR DECISION
5 September 2011 Ms N Isenberg, Senior Member INTRODUCTION
1. Solomon Baker is a citizen of Papua New Guinea (PNG). He arrived in Australia with his parents in 1986, when he was nearly 7 years old. He is now aged 31. Since that time he has held a Class BF Transitional (permanent) Visa, by virtue of which he has been allowed to remain in Australia, subject to the provisions of the Migration Act 1958 (the Act).
2. Mr Baker has committed numerous offences. Most recently, on 25 May 2010 he was convicted of one count of aggravated break and enter committing the serious indictable offence of assault occasioning actual bodily harm and one count of reckless wounding for which he was sentenced to three years and five months and two years and one month respectively; not being eligible for parole for two years and three months. On 7 June 2011, the Minister for Immigration and Citizenship (the Minister) cancelled his visa on the ground that he did not pass the character test in s 501 of the Act. Mr Baker seeks review of that decision.
RELEVANT LEGISLATION
3. By s 501(2) of the Act, the Minister may cancel a person’s visa if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that she or he passes the character test.
4. A person is taken not to pass the character test if she or he has a substantial criminal record: s 501(6). A person has a substantial criminal record if she or he has been sentenced to a term of 12 months imprisonment or more, or has been sentenced to two or more terms of imprisonment totalling two years or more: s 501(7). It is common ground that Mr Baker does not pass the character test.
5. The discretion in s 501(2) must be exercised in accordance with Direction [No. 41] - Visa refusal and cancellation (the Direction), made by the Minister on 3 June 2009. The Direction is made pursuant to s 499 of the Act and is binding on the Tribunal: ss 499(1) and (2A). It requires that due consideration be given to the objective of the Act to regulate, in the national interest, the coming into and presence in Australia of non-citizens and, in this regard, to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious misconduct by non-citizens: Paras 5.1(2) and 10.1.
6. By way of general guidance, the Direction requires a decision-maker to consider the nature of any harm the person may cause to the Australian community and the risk of that harm occurring. A wide range of factors must be taken into account, including whether the person began living in Australia as a minor, the length of time she or he has been ordinarily resident in Australia and any relevant international obligations: Para 5.2.
7. To the extent that they are relevant to the particular case, a decision-maker must take into account four primary considerations and seven other considerations.
8. The primary considerations, each of which excepting non-refoulement obligations is relevant in this case, are set out in Para 10(1) of the Direction. They are:
(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 law 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).
9. The other considerations are set out in Para 11. They must be taken into account where relevant but, generally, should be given less weight than the primary considerations: Para 11(2). The other considerations relevant in this case are:
(a)family ties, the nature and extent of any relationships:
(i)the extent of disruption to the person’s family, business and other ties to the Australia community…
(d)any links to the country to which they would be removed. For example, where the person has no significant familial ties or support in that country, this may be considered in the person’s favour;
(e)hardship likely to be experienced by the person or their immediate family members lawfully resident in Australia:
(ii)including whether the immediate family members are able to travel overseas to visit the person; the nature of the relationship between the person and the immediate family members; and whether immediate family members are in some way dependent on the person for support which cannot be obtained elsewhere…
(g)whether the person has been formally advised in the past by an officer of the Department of Immigration and Citizenship about conduct that brought the person within the deportation provisions of the Act… or the character… provision of the Act.
THE ISSUE
10. The relevant issue in this case is whether the Tribunal should exercise its discretion not to cancel Mr Baker’s visa.
(A) Protection of the Australian community from serious criminal or other
harmful conduct, particularly crimes involving violence
11. Factors relevant to assessing the degree of risk to the Australian community of Mr Baker’s continued stay include the seriousness and nature of his conduct and the risk that it may be repeated. Violent crimes are of special concern: Para 10.1.1(2).
(i) The nature and seriousness of Mr Baker’s conduct
12. In May 2010, Mr Baker was convicted of one count of aggravated break and enter committing the serious indictable offence of assault occasioning actual bodily harm and one count of reckless wounding. The victim, Ms D, had previously been in a de-facto relationship with Mr Baker and the offence was committed in her home with a weapon in the presence of young children of the relationship. Mr Baker pleaded guilty to those offences, apparently on the first day of his scheduled trial. Mr Baker’s solicitor before me, Mr Turner, did not canvass the fact of the conviction for those offences, and conceded that the nature of those offences was serious. However, he submitted that an unsigned document extracted from the court file headed ‘Statement of agreed facts’ tendered by the Respondent did not properly represent the events that occurred, and in any event, that there was no evidence that this represented the agreed facts to which Mr Baker had pleaded guilty, especially as it was unsigned, as apparently, is the usual course.
13. As I observed at the hearing, there may be many reasons a defendant may agree to facts which do not precisely accord with his recollection of the matters with which he was charged; indeed, it was Mr Baker’s evidence before me that he had pleaded guilty because of a plea bargain deal; he said he had attempted to have the agreed facts changed but the deal was ‘on the table’ and he was (otherwise) ‘looking at 7-14 years’. Mr Baker said that at the time he had not realised that his guilty plea would ‘come back on him’ in the context of an application for custody of his children or on his continued permitted residence in Australia. Over Mr Turner’s objection I admitted the document purporting to be the Agreed Statement of Facts, noting that it had been extracted from the summonsed court file and its location within the file suggested it had been marked as part of an exhibit, that there was no other document purporting to outline the agreed facts, and that the sentencing judge had referred to matters set out in that document in the course of her sentencing remarks.
14. The Respondent had also tendered from the court file, extracts from the Crown’s Brief of Evidence. Mr Turner referred me to a number of clear inconsistencies in the evidence on the face of various documents in the Brief. Further, it was submitted, if the alternate version of events provided by Mr Baker in his statement in the present matter and his evidence before me were preferred, this would reduce the ‘seriousness’ of the offence. Mr Turner was also critical of the Respondent for not producing the victim, Ms D, Mr Baker’s former partner, to give evidence, presumably so that aspects of her account, particularly in relation to whether their children were present during the assault, could be tested.
15. The Respondent submitted, correctly in my view, that it was not open to the Tribunal to canvass the facts leading to the conviction upon which the decision under review is based. In its decision in Minister for Immigration and Citizenship v SRT (1999) 91 FCR 234, at 244; [1999] FCA 1197, at [40], the Full Federal Court said:
... [I]t is not open to the Tribunal to engage in any inquiry which would impugn the sentence. Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence.
There are good policy reasons why such a principle should prevail. It could only undermine the criminal process for an administrative decision to be based on considerations inconsistent with the conviction or sentence imposed.
(Emphasis added.)
16. The Court in that case specifically rejected a submission that findings of fact made by a sentencing judge can be challenged provided the Tribunal accepts the fact of the sentence itself.
17. The Court further explained that:
It is improbable that the legislature intended that an administrative tribunal with wide investigatorial powers, not bound by the rules of evidence and free to inform itself from any source, should review the essential factual bases of a conviction and of the resulting sentence. The policy must be that a conviction and a sentence imposed as a result of a conviction, are matters for the criminal law and its procedures. If a sentence, like a conviction, is otherwise than in accordance with law, a right of appeal is available to remedy any miscarriage of justice. If new or fresh evidence comes to hand, again criminal procedures can be availed of.
18. In relation to the Tribunal considering the circumstances under which a crime is committed, in Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, at 370; [2010] FCA 1445 at [77]-[78], Katzmann J referred to an earlier decision of the Full Federal Court which had considered this issue:
As the Full Court explained in Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649 at 653:
There are powerful reasons of public policy why the Tribunal cannot ignore the conviction or seek to set it at nought. That is not to say that the circumstances surrounding the commission of the offence or matters relating to the trial itself cannot be examined by the Tribunal. However, such examination is for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the applicant's criminal conduct and not for the purpose of assessing the propriety of the conviction or the fairness of the trial.
[Emphasis added.]
Their Honours acknowledged ‘that the Tribunal is bound to accept the fact of the conviction as the source of jurisdiction and as a stigma affecting the applicant’s standing and credit in the community’. But they added:
However, we cannot accept that the Tribunal is not entitled to examine for itself all facts including those necessarily found by the jury. To conclude otherwise would be to attempt to introduce into proceedings of the Tribunal a doctrine equivalent to that of issue estoppel.
(Original Emphasis.)
19. Mr Baker’s evidence before the Tribunal included assertions that he did not hit his wife more than once, that he did not take the alleged weapon to the scene, and that his children did not witness the assault on their mother. I do not think that the Court in Minister for Immigration and Ethnic Affairs v Daniele (1982) 5 ALD 135; [1981] FCA 212 envisaged that the Tribunal should revisit the facts giving rise to the conviction. In this matter there was no jury trial where, for example, despite the defendant’s persistent denials, he was convicted; there was, instead, a guilty plea. The assertions about the agreed facts made by Mr Baker go to the very heart of the matter of which he was convicted.
20. I observe that Mr Baker was represented in the criminal matter, and Her Honour Judge Murrell, the sentencing judge, in fact specifically accepted some submissions made orally on his behalf. It cannot be said that he did not have an opportunity to make submissions, taking issue with the facts, or for the purposes of mitigation. Further, if incorrect or extraneous matters were considered in sentencing, recourse was available to Mr Baker through the appeal process.
21. Having said that, it is unclear to what extent the sentencing judge may have taken into account the evidence in the Crown Brief in supplementation of any agreed facts. I observe, for example, that some of her conclusions refer to some of the material in the Brief, such as the victim impact statement. The sentencing remarks set out what Her Honour regarded as relevant in sentencing Mr Baker.
22. I do not propose to rely on the tendered material extracted from Crown Brief of evidence or the purported statement of ‘agreed’ facts, but in making my assessment of the seriousness of the offence, I am guided by Her Honour’s sentencing remarks. I accept that some of the Crown Brief may have been discussed by Her Honour and, to that extent, I take it into account as extracted and relied upon by Her Honour.
23. Therefore in relation to the alternative version of the events Mr Baker sought to put forward, to the extent of inconsistencies, I prefer the version outlined by Her Honour.
24. As to Ms D’s evidence, having regard to the acrimonious violent relationship between her and Mr Baker, and the allegation by Mr Baker that she is a drug addict, I doubt that her evidence would have been helpful to me in reaching my decision in any event.
25. In sentencing, her Honour noted that in respect of the aggravated enter with intent to commit an assault occasioning actual bodily harm the objective seriousness of the offence was ‘very significant for a number of reasons’. She referred to the offence having been committed while there was an interim apprehended violence order in place to protect the victim, that it was committed in Ms D’s home, that Mr Baker knew their children would be present, that a weapon was used, and that Mr Baker must have intended to use the weapon to commit the attack. She also observed that the offence of assault occasioning actual bodily harm, while a serious indictable offence, was not the most serious of such offences, and considered it to be ‘at the lower end’ in terms of the seriousness of ‘serious indictable offence’’.
26. As to the reckless wounding, Her Honour considered the offence to be in the mid-range for objective seriousness. In her assessment she referred to 2 important considerations – the nature of the conduct and the nature of the injury. She considered that one wound requiring suturing was ‘not the most serious type of wounding that might be the subject of such an offence’ and ‘that it was possibly towards the lower end in terms of seriousness of injury’. As to the nature of the conduct Her Honour observed that Mr Baker deliberately took a weapon into Ms D’s home and utilised it in relation to a potentially quite vulnerable part of the body (her lower spine). She accepted that Mr Baker intended to cause injury to Ms D’s lower back but because of Mr Baker’s guilty plea, she could not proceed on the basis that he deliberately intended to cause an actual wound. Nevertheless she considered it to be a very serious matter. Because of the extent of the injury – ‘significant abrasions and bruising’ – she found that the offence was slightly below, but not much below, the mid-range of objective seriousness.
27. I accept that the terms of imprisonment for Mr Baker’s most serious offences are closer to the lower, rather than higher, end of the scale and that this is relevant to assessing the seriousness of his offences but does not detract from Her Honour’s sentencing remarks. It remains though that Mr Baker has a long history of serious offences from the age of 19 and that he has been sentenced several times to periods of imprisonment.
28. The sentencing judge, citing the decision of R v Dunn (2004) 144 A Crim R 180, noted that crimes involving domestic violence have two important characteristics that differentiate them from other crimes of violence, being an attitude of justification on the part of the offender and that the continued estrangement implies continued threat, such that the victim never feels safe. Her Honour observed that these factors were present in respect of Mr Baker’s offences.
29. Her Honour had regard to Ms D’s victim impact statement, which described ‘a continuing and very serious impact not only on [the victim] but also on her children, who still carry serious emotional scars from the incident'. Her Honour observed that ‘it was to be expected that the victim would suffer very serious psychological consequences. And similarly that her two young children, who visually witnessed and heard the assault on their mother, must have been absolutely terrified. Such an incident would scar any child for life’.
30. Also relevant under the Direction is the extent of Mr Baker‘s criminal record including the number of offences, the period between offences and the time elapsed since the most recent offence. Mr Baker has a history of other serious offences, including some offences involving violence: common assault (2000, 2006), assault against a police officer (2000, 2006), and stalk and intimidate with intent to cause fear of physical and mental harm (2006). Between 1998 and 2006 he was brought before the court on over thirty occasions and convicted of forty offences. The sentencing judge noted that Mr Baker had an extensive criminal record, mainly for offences relating to drugs and dishonesty. The frequency and extent of his offending are, in my view, factors that deserve considerable weight.
31. The Tribunal must also consider any relevant mitigating factors put forward by an applicant when determining the seriousness of the conduct. When sentencing Mr Baker on 25 May 2010, her Honour noted that the only mitigating factor was the plea of guilty. The offences occurred in the context of drug use, which, it appears, was the underlying cause of most, if not all, the offences in Mr Baker’s long criminal history. To his credit, between 2006 and 2009, he did not come to adverse attention. For some of that time, on his evidence, he was heroin free. However, drug addiction is not a mitigating factor in sentencing: R v Henry (1999) 46 NSWLR 346 at 382-395. Indeed, when it leads to the commission of other crimes, the community has all the more need to be protected: Weti and MIMA [2006] AATA 1054 at [34].
(ii) The risk that the conduct may be repeated
32. Para 10.1.2(2) of the Direction provides that factors particularly relevant to assessing risk of re-offending are:
(a)a recent history of convictions, which should be considered as indicating an increased risk of reoffending;
(b)evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation. Greater weight should generally be given to independent and authoritative sources, such as judicial comments, professional psychological reports, pre-sentence reports for the courts, parole assessments, and similar source of authoritative information or assessment; and
(c)evidence that the person has breached judicial orders, including parole, bail, bonds, suspended sentences and any other relevant undertakings or conditions imposed by the courts.
33. Mr Baker has a long history in Australia of offences dating back to 1998, when he was aged 18, commencing with drug possession and including numerous theft-type offences. There were also a number of crimes of violence, especially assault convictions. His offences resulted in a number of custodial penalties of relatively short duration. His convictions in December 2006 represented an escalation of the seriousness of his offending in terms of violence and the sentences imposed reflect this, though they were suspended and subject to a bond.
34. Mr Baker was subject to an interim apprehended violence order when he committed the offences in March 2009, and he has also been convicted of offences while subject to good behaviour bonds and parole in 1999, 2000, 2001, 2003, 2004 and 2005.
35. As the sentencing judge observed, Mr Baker had initially made some progress since his conviction for his first attack on Ms D, after she fell pregnant in 2005, and his crime-free period between December 2006 and March 2009 appears to coincide with a period of stability in Mr Baker’s life when he was living with Ms D. In his evidence he said that his children had ‘saved him’ and, for a time when they were together, neither he nor Ms D used heroin and they commenced a methadone program. Mrs Baker, the Applicant’s mother, gave evidence that she would sometimes drive them to the clinic and mind the children. I accept that during at least some of that period, he appears to have made an effort to address his drug use and, consequently, his criminal behaviour.
36. However, as the sentencing judge observed, Mr Baker relapsed into drug use and criminal behaviour when his relationship with Ms D broke down in 2008. His evidence before me was that shortly after he and Ms D had split up he had ‘come into’ a large quantity of heroin. Daily he would take it to Ms D and he would take the children away for a short time so that they would not see their mother self-administering drugs. He said he provided Ms D with the drugs so that he could continue to see his children. Then the drugs ran out and Ms D found a new supplier.
37. In his evidence before me he said that he had started using heroin again about six to nine months before he went to gaol. At the time of the offences though he was back using methadone, which, he said, he had only gone onto because he had run out of heroin. He said that when he first went to gaol for these offences he required 60-80 mg of methadone. Currently he requires only 3 mg. His hope is to be free of methadone by the time of his release. He thinks he can remain off drugs because he is ‘over it’.
38. Regarding his conduct in prison, Mr Baker has a record of misconduct with ten breaches during his current incarceration, including drug possession and drug implement possession. In his evidence Mr Baker said that some of those offences related to him having sleeping tablets and agreed that they had not been prescribed for him. He denied that some offences were in fact drug-related, and that in respect of at least one, he was the victim of having drugs found in a cell which he had only recently occupied. I find his explanation in an apparent attempt to minimise his prison offences to be implausible, having regard to the number of offences and to his admission that the sleeping tablets were not his.
39. While there is evidence that Mr Baker is currently undertaking methadone treatment for his heroin addiction whilst in prison, there was no independent evidence upon which I could be satisfied as to the success of that treatment program. I am not confident of his ability to maintain methadone treatment and refrain from illegal drug taking in the wider community, especially in light of his earlier drug relapse upon the deterioration of his relationship – a relapse that resulted in his most serious criminal offences. I also cannot be confident, on the available evidence, that he would be able to maintain any rehabilitation that he has achieved when subjected to the vicissitudes of life. One might also speculate what course he might take if he were again to ‘come into’ a large quantity of drugs.
40. In the context of offenders whose offending is linked to substance abuse, I note the Tribunal's decision in Tui and Minister for Immigration and Citizenship [2010] AATA 689 in which at [89] the Tribunal stated:
That Mr Tui has a significant criminal history does not, of course, mean that he necessarily poses a risk to the Australian community. The expert evidence is that if he can stop alcohol use, his risk of re-offending is low. While possible that Mr Tui might be able to beat his alcohol addiction, it is equally possible that he will fail. As such, my opinion is that there is a real risk of continued violent conduct and harm to others if he were to remain in Australia. I am of the opinion that the protection of the Australian community strongly outweighs those factors which favour Mr Tui retaining his visa.
41. Unlike in Tui, the psychologist’s evidence did not go as far as to suggest that if Mr Baker can stop drug use, his risk of re-offending is low. The psychologist considered that without treatment Mr Baker was likely to relapse in times of stress or opportunity. She considered that Mr Baker would be at high risk of further legal difficulties if he did not address his substance abuse. Mr Baker’s evidence was of having reduced his reliance on methadone, and that, by the time of his release, he hoped to no longer need that form of treatment. While it is possible that Mr Baker might be able to beat his reliance upon drugs, it is also possible that he will fail, especially in times of stress or disappointment.
42. Her Honour referred to a psychological assessment of Mr Baker, which had been tendered on his behalf on sentencing, which stated that his overall response to his actions was characterised by minimisation and justification. Her Honour considered that although there was hope for rehabilitation, Mr Baker first had to accept responsibility for his actions and stop seeing himself as a victim. Unfortunately there was no current psychological evidence before me to formally report if there had been this attitudinal change.
43. The Respondent submitted that Mr Baker has shown no evidence of rehabilitation or remorse. The sentencing judge found, in December 2010, that Mr Baker had shown no remorse mitigating the determination of an appropriate sentence. She had available to her the psychological report of Debbie Case dated 5 March 2010 which concluded that Mr Baker had not taken responsibility for his actions. In his evidence before me, Mr Baker now says he should have handled things differently. It was not entirely clear to me if this related to his guilty plea and the consequences to which he is exposed as a result of his conviction, or to how he dealt with his former partner. Determining whether a person facing deportation is genuinely remorseful for their actions is difficult and their evidence must be carefully considered. I find Mr Baker now to have expressed some degree of remorse.
44. Mr Baker has undertaken some employment in prison and has completed two short courses, but he has not completed any offence targeted programs; though he has informed prison officials that he would be willing to do so. His evidence was that on release he plans to move to the Illawarra area where he has family, and where his eldest child, T1 lives. He also said he had job offers from two friends there. He said he had never really previously thought about work and had only ever had a few labouring jobs ‘here and there’.
45. I accept that, between December 2006 and March 2009, Mr Baker had no convictions. His discovery that Ms D continued to use drugs clearly played a part in his resumption of drug use, and the offences that occurred while under the influence of drugs but these offences cannot be viewed in isolation. They continued his history of serious offences, breached orders and relapses.
46. In Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 40 FCR 493; [1993] FCA 75 the Full Federal Court held that a real risk of recidivism is one which is not far-fetched or fanciful and can include a low or minimal risk. I find that the risk of recidivism in Mr Baker’s case is not ‘far-fetched or fanciful’. I do not accept that Mr Baker has, during his period in prison, rehabilitated to an extent that it can now be said that it is unlikely he will re-offend. I find that the likelihood of Mr Baker re-offending is reasonably high, and I consider it a strong factor in considering the exercise of the discretion.
47. Mr Baker may well now have greater insight into his problems. He has taken some steps towards rehabilitation. However, I am not satisfied that when released into the community, he will resist the temptation of using illicit drugs, which may in turn cause him to re-offend. In my view, given his past history of serious offences including crimes of violence and drug use and his failure to comply with judicial orders, he represents an unacceptable risk to the Australian community. Thus, the first primary consideration strongly favours the cancellation of Mr Baker’s visa.
(B) Whether Mr Baker was a minor when began living in Australia
48. The Direction indicates that more risk may be acceptable where the person has spent formative years here and become part of the Australian community.
49. Mr Baker has spent most of his formative years in Australia. I accept he has ties to the Australian community: he has family here; his children are here; he has not been to PNG since January 1991 and he has few, if any, ties there. This primary consideration therefore weighs in Mr Baker’s favour.
50. In my view this consideration does not outweigh the first primary consideration; the protection of the Australian community.
(C) The length of time that the person has been ordinarily resident in
Australia prior to engaging in criminal activity or other relevant
conduct
51. Mr Baker convicted of his first offence in 1998, eleven years and five months after his arrival in Australia. He was sentenced to imprisonment for eight months with a non-parole period of four months (1999), one month (1999), seven months suspended on entering a good behaviour bond (2002), seven months with a non-parole period of three months (2003) and has most recently been imprisoned since March 2009 to present.
52. In his Personal Details Form, Mr Baker listed only two periods of employment as a labourer for a total of ten months which, combined with his criminal lifestyle and drug dependency, suggests he has limited employment, financial or other business links with Australia. However, his children, his parents and brother live in Australia so he has important family ties to this country.
53. While this consideration weighs in Mr Baker’s favour it does not outweigh the first primary consideration; the protection of the Australian community.
(D) Any relevant international law obligations including the best interests
of the child, as described in the Convention on the Rights of the Child
54. Reflecting Australia’s obligations under the Convention on the Rights of the Child (CROC), if there is a child in Australia who is potentially affected by the decision, the decision-maker must have regard to best interests of the child: Para 10.4. Factors going to the best interests of the child, among the other factors I have considered in Para 10.4.1(5), include:
(a)the nature of the relationship between the child and the person;
(b)the duration of the relationship including the length and reasons for any separation;
(c)the extent to which person likely to play full parental role up to child’s 18th birthday;
(d)the child’s age;
(e)the likely effect on the child of any separation;
(f)any known wishes of the child;
(g)the existence of other person who already fulfil a parental role;
(h)any negative or positive impact of the person’s conduct.
55. Mr Baker’s children, T1, T2 and R, are now aged nine, five and four respectively. In his Personal Details Form Mr Baker indicated that he wishes to remain in Australia and have a parenting role. Mr Baker has not seen any of his children since 26 March 2009 when he was arrested. The period in which Mr Baker has not seen his children represents a relatively large part of their lives. It is important to note that there is no suggestion whatever that Mr Baker has ever physically harmed his own, or any other, children.
56. There were no statements or other evidence from Mr Baker’s children, or from their mothers or others, on their behalf. The Respondent contended that it is appropriate for an inference of the kind identified in Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 be drawn, namely that it is open to the Tribunal to draw an adverse inference from the failure of a party to call a witness in appropriate circumstances. The Respondent submitted that the Tribunal should draw an adverse inference from the failure of the Applicant to provide evidence from his children or their mothers – specifically it should be inferred that such evidence would not have assisted the Applicant. The Respondent referred me to Kumar and Minister for Immigration and Citizenship (2009) 107 ALD 178; [2009] AATA 124 where the rule in Jones v Dunkel was held to apply to proceedings before the Tribunal. Conversely, in Green v Minister for Immigration and Citizenship (2008) 100 ALD 346; [2008] FCA 125, the Tribunal came to a different view.
57. I do not need to come to a view about the application of Jones v Dunkel, because I do not propose to draw adverse inferences solely from Mr Baker’s failure to call particular witnesses. To the extent that there are gaps in the evidence produced by or on behalf of Mr Baker, I note that the omission has made my task more difficult, and I have come to my view on such material that was before me. There may be many reasons other evidence was not available – for example the strict timetable in proceedings necessitated by the legislation or costs. It is not for me to speculate, although I might observe that it is hardly surprising that Ms D did not provide a statement.
58. T1, I was informed by Mrs Baker, lives with her maternal grandmother. There was no evidence about the mother’s circumstances. Mr Baker said in his evidence that before he went to gaol he would spend weekends with T1 – taking her to the park or the beach. He said he last saw her about a week before he was arrested. He did not want her to visit him in gaol so had had no contact with her since. Mrs Baker said she had a very close relationship with T1, who lives only 10 kms away from her. She sees her whenever she can, which is about once per fortnight. In his Personal Details Form he wrote that he has contact with her by mail. No information was provided about frequency or whether the correspondence is reciprocated.
59. I accept that he had a relationship with T1 until he went to gaol and I accept that he does not want her to see him in gaol. I accept that Mrs Baker, her grandmother, has endeavoured to maintain her family’s connection with T1 while Mr Baker is in gaol. I do not know the likely effect on T1 of any separation or her wishes. I understand that she lives with her grandparents. The mother’s role in her parenting is unknown. Her attitude towards her father’s offences and his subsequent imprisonment – if indeed she knows him to be in gaol at all – is unknown. It was unclear if there was any formal shared care arrangement in place in relation to T1 and whether such an arrangement, formal or otherwise, could be re-activated on his release. Notwithstanding the limited available evidence, I find that it is likely to be somewhat in T1’s best interests that she have the opportunity to resume a relationship with her father should she wish to do so.
60. It was agreed that the interests of T2 and R were appropriately considered together. Mr Baker said he had a good relationship with them until he went to gaol. He last saw them on the night of the assault on their mother. He said he would also see them, ‘the same as [T1]’ although, given the AVO taken out by their mother, it is difficult to see how this might have eventuated. T2 and R are believed to reside with their mother. Mr Baker said he would like to resume his relationship with them on his release, and ideally obtain custody, because, since his incarceration, he believes them to be unsafe because he knows their mother to be a long-term drug user. He does not know if DOCS has had any involvement since he has been in gaol. There was no evidence, because of his concern for their welfare, that he himself had previously reported his children’s situation to DOCS. Further, although Mr Baker’s evidence was that he and Ms D were ‘clean’ because of the children, he himself, on his account before me, had supplied Ms D with drugs for some time after they separated and while the children were in her care. I do not accept his explanation – that he did so in order to see his children and to prevent them from seeing their mother administer her drugs – to be plausible, and is entirely inconsistent, in my view, with his stated concerns about his children’s welfare.
61. Mrs Baker said that two years ago she had applied for custody of T2 and R. Only recently she has withdrawn those proceedings because Ms D continually failed to appear and costs were mounting. The independent children’s lawyer told her she would be able to see the children, but it was unclear how this has been, or might be, managed. She has not seen them since her son and Ms D separated but she sends them birthday and Christmas presents through their lawyer because she does not know where they live. As to how Mr Baker might re-establish his relationship with the children she thought that would depend on the outcome of his custody application.
62. Mr Baker’s solicitor conceded that Mr Baker would ‘face a battle’ in seeking custody of T2 and R. His prospects, in my view, would be grim, especially given his criminal history, his drug use, that he seriously assaulted the children’s mother, and that the sentencing judge observed that the children witnessed that assault. His solicitor thought Mr Baker may have some success in obtaining, in the first instance, some supervised access to the children. He submitted that any access Mr Baker had to the children was better for them than none at all.
63. I consider that there is little prospect of Mr Baker having contact with T2 and R in the foreseeable future, let alone providing them with daily care, given his history of chronic drug abuse, his long criminal history and the violent assault upon their mother. He has not lived with T2 and R since 2008 and is subject to an Apprehended Violence Order preventing him from having contact with their mother. These factors, in my view, make it doubtful that he would be able to pursue any kind of close or meaningful relationship with his children in the future.
64. The Direction provides at 10.4.1(4)(b) that factors which may indicate that a child's best interests are served by separation from the person include ‘any evidence that the child has suffered or experienced any physical or emotional trauma arising from the person's conduct’. The sentencing judge found that T2 and R had witnessed Mr Baker’s attack on their mother – which Mr Baker denies – and the sentencing judge stated that they would have been absolutely terrified by the event, and scarred for life by it. Her Honour also characterised the children as secondary victims of the offences. Whether the children actually witnessed the assault or not, noting here that I prefer Her Honour’s statement that they did, it seems to me that they, nonetheless, are likely to have subsequently observed their mother’s injuries or at least have been confronted with the knowledge that their father seriously assaulted their mother.
65. The Direction acknowledges that it is generally presumed under Australian law, that a child’s best interests are served by remaining with its parents. In this case, living with both parents is not a realistic option for any of the children, especially T2 and R. Mr Baker’s solicitor agreed that any relationship Mr Baker might have with T2 and R in the future was unlikely to occur in the absence of a court order. Whether he would succeed in obtaining such order is, in my view, unclear.
66. In summary, I do not consider that it is necessarily in the best interests of T2 and R that Mr Baker remain in Australia. In forming that view, I placed particular weight on Mr Baker’s disregard for his children’s welfare in supplying their mother with heroin.
67. The Respondent contended that, even if this consideration were found to weigh in Mr Baker's favour, this primary consideration is outweighed by the primary consideration of the protection of the Australian community. In Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133 at 142; [2001] FCA 568 at [32] the Full Federal Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or-children with respect to the exercise of the discretion and, second:
to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.
68. While I consider that it is marginally in the best interests of T1 that Mr Baker remain in Australia so that he can be in a position to resume a parenting role, this primary consideration however does not outweigh the ‘protection of the Australian community’: Tuatara v Minister for Immigration & Citizenship [2010] FCA 1324 at [45]-[47].
OTHER CONSIDERATIONS
69. Other considerations must be taken into account if relevant, but generally should be given less weight than primary considerations: Para 11(2). The relevant considerations in this matter are considered below.
Family ties, the nature and context of any relationships
70. Mr Baker is not currently in a relationship. The relationship with Ms D, the mother of T2 and R, ended some years ago, and there is a long-standing Apprehended Violence Order in place.
71. Mr Baker’s parents and brother reside in Australia, as well as an extended family including ten uncles and aunts, seven nieces and nephews and thirteen cousins. Whilst in prison, I was informed, he has been visited by his brother, aunt and mother. His parents are prepared to offer him accommodation and support upon his release from prison.
72. The available evidence indicates that if his visa is cancelled his family members may suffer a degree of emotional distress.
73. Although I accept that Mrs Baker and his family would prefer that he remain in Australia, this does not outweigh the primary consideration of the protection of the Australian community.
Links to PNG
74. Mr Baker and his mother expressed a degree of apprehension and anxiety about the prospect of his returning to Papua New Guinea (PNG). He does not know his family members, although he went to PNG on two occasions for a total of fifty days. His mother said that the whereabouts of her sisters are unknown because they have left their tribe to join those of their husbands. She can get a message to them but they are otherwise non-contactable. She would not ask them to help her son.
75. I accept that Mr Baker may suffer a degree of hardship in re-settling in PNG.
Hardship likely to be experienced by the applicant or their immediate family members lawfully resident in Australia
76. The Respondent accepted, and I agree, that the cancellation of the visa may require Mr Baker to readjust to life in PNG. After years in Australia, Mr Baker has very limited links to PNG and it would be undoubtedly difficult for him to re-establish himself there.
77. Mrs Baker foreshadowed problems for her son if he returned to PNG. She fears he will be killed, as was another son and other family members, because of jealousy of her family’s relative wealth. She thought there are limited job opportunities in PNG. Here he would have family support and she would make sure he got a job and settled down.
78. Mrs Baker did not think she would be able to visit her son because she is on the waiting list for a further operation, and was worried she might lose her place on the waiting list. She expected that her son would care for her if he remained in Australia.
79. Mr Baker has had drug dependency issues and is undergoing methadone treatment in prison for his heroin dependency. I accept that in PNG he may not have access to a similar level of medical and rehabilitation services, although there was no evidence to this effect. In fact, as his evidence was to the effect that he expected to be methadone-free by the time of his release, and would thereby not require assistance, such consideration would be largely irrelevant.
80. I also accept that unemployment is high in PNG. I did not have details of Mr Baker’s TAFE studies, beyond that his evidence was that they entailed drug counselling which he had undertaken shortly after T2’s birth. I might speculate that, if he has that training, and is indeed drug-free, his skills would be readily utilised.
Previous formal advice
81. Mr Baker has not previously been formally warned in relation to his criminal conduct and the character provisions of the Act.
BALANCE OF CONSIDERATIONS
82. Mr Turner invited my attention on a number of occasions to Gunner and Minister for Immigration and Multicultural Affairs [1997] FCA 1492 where the Court noted: ‘Sometimes important issues of principle are raised by people who might be thought by some not to be particularly deserving of sympathy’.
83. Mr Turner submitted that Mr Baker had ‘been to the depths’, and that the only way to turn his life around was for him to remain drug free and crime free.
84. Mr Baker has a long and consistent record of serious offences, including major incidents of violence. He has shown a disregard for the law despite several periods of imprisonment. He has expressed remorse in the past and undertaken to change his behaviour but he has continued to offend.
85. Despite evidence that suggests Mr Baker may have been making efforts to change his behaviour, I am not satisfied that he will not revert to committing serious and violent offences. His history suggests a high probability that he will again revert to abusing drugs and commit serious, violent offences. There is, in my view, an unacceptable risk of harm to the Australian community from his conduct in the future. I am not satisfied that the other primary considerations outweigh that unacceptable risk of harm. In particular, I am not satisfied, on the available evidence, the best interests of two of Mr Baker’s three children favour that he remain in Australia. As to the third child (T1) it is only marginally in her best interests that Mr Baker remain in Australia His relationship with all his children has been non-existent for over two years, and there is no evidence that their best interests would be served by him remaining in the country or even that he will be able to see them in future if he does.
86. I accept that Mr Baker’s family, especially his mother, wish to support him and that they may be distressed at his removal from Australia. I acknowledge that he has few, if any, meaningful ties in PNG and that it will be very hard for him to establish himself there. It is quite possible that, if he is deported, his rehabilitation will be set back. However, I am satisfied that the degree of unacceptable risk that he poses to the Australian community outweighs all other considerations. The discretion in s 501 of the Act should not be exercised in Mr Baker’s favour.
DECISION
87. The Tribunal affirms the decision under review.
I certify that the 87 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.
Signed: ...................................[sgd].........................................
AssociateDates of Hearing 8 and 9 August 2011
Date of Decision 5 September 2011Solicitor for the Applicant Ray Turner, Turner Coulson Immigration Lawyers
Solicitor for the Respondent Julian Pinder, DLA Piper Australia
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