Baker and Minister for Immigration, Multicultural and Indigenous Affairs

[2004] AATA 1338

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1338

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2004/1171

GENERAL ADMINISTRATIVE  DIVISION		)
Re		JASON WILLIAM BAKER

Applicant

And MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal The Hon C R Wright QC., (Deputy President)

Date14 December 2004

PlaceMelbourne

Decision The decision under review is affirmed.

[The Hon C R Wright QC]

Deputy President

CATCHWORDS

Immigration – Sub-Class 444 Special Category visa – long term Australian resident – extensive and continuing history of criminal conduct – several warnings – visa cancellation – discretion – best interests of children.

Migration Act 1958 – s501

Wan v Minister for Immigration and Multicultural Affairs (2000) 107 FCR 133

REASONS FOR DECISION

14 December 2004 The Hon C R Wright QC., (Deputy President)   

1. This is an application to review a decision of the Minister’s delegate to cancel the applicant’s Sub-Class 444 Special Category visa on the ground that the applicant does not pass the character test prescribed by s501 of Migration Act 1958 (“the Act”).

2. The applicant is currently serving a sentence of imprisonment at Beechworth prison in Victoria. His estimated release date is 16 January 2005. By reason of the provision of s500(6L) of the Act, the Tribunal is required to make a decision on or before 27 December 2004 or the delegate’s decision will be taken to have been affirmed by operation of law.

3. The applicant was born on 27 March 1974 in Christchurch, New Zealand,. He first entered Australia 2 weeks later in company with his mother and siblings. The applicant returned to New Zealand from Australia on 26 February 1982 and remained there with his family until 21 February 1986 on which date he returned to Australia. Had the applicant remained in Australia until 2 April 1984 and not left Australia between that date and 1 September 1994 he would have been entitled to an “absorbed” person’s visa pursuant to s34 of the Act. As it is, on 1 September 1994 he was deemed to be the holder of a visa permitting him to remain in Australia while he remains a New Zealand citizen.

4. The applicant is now 30 years old. He has an extensive criminal history and his counsel at the Tribunal hearing held in Melbourne on 2 December 2004, Mr Doran, conceded that he is not a person of good character within the meaning of s501. I should add that my independent assessment of the evidence leads me to the same conclusion and in my opinion Mr Doran’s concession was properly made.

5.      The applicant’s diverse record of offending commenced in 1990 when he had several appearances in the Ballarat Children’s Court for offences of (inter alia) burglary, theft and property damage.   On 9 September 1991, when he appears to have had his first appearance in the adult court, he was ordered to undergo assessment and treatment for alcohol and drug abuse.    The extent to which he complied with this direction is not clear from the material presented, but many of his subsequent offences have been explained by him as being due to excessive use of drugs or alcohol.   From 1991 to 1994, he had frequent appearances in the Ballarat Magistrates Court for burglary, theft, motor vehicle theft and the like.   He also received suspended sentences of imprisonment and other lesser forms of penalty.  

6.      In 1994, he was convicted of armed robbery and was sentenced to 12 months at a Youth Training Centre.    A similar pattern of offending has occurred since 1994.   In addition there have been some convictions for anti-social behaviour offences and some for threats of violence and the infliction of actual violence.   He has been to prison on a number of occasions.   His more recent transgressions are discussed later in these reasons.    In addition to Victorian offences he has also come under notice in New South Wales and South Australia, principally for traffic offences, but in 1998 in South Australia he was sentenced to 15 months imprisonment for breaking and entering and allied offences.    In total he has over 50 offences in respect of which he has been convicted or which have been found proved against him.

7.      At the Tribunal hearing on 2 December 2004, Mr Doran indicated on his client’s behalf that it was not intended to call any oral evidence.   Nor were statutory declarations or other documents submitted.   Mr Brereton, counsel for the respondent, relied on the G documents.   Accordingly, I heard no direct evidence from any witness.   I have however read the G documents in their entirety with particular reference to those to which counsel directed my attention.

8.      To give some chronological sequence to the steps which have been taken by the Department leading up to the visa cancellation, I think it appropriate to mention the following:

(a)      19 November 2001.

The applicant was convicted of multiple offences at Ararat Magistrates Court for stealing, theft, criminal damage, burglary, resisting police and using indecent language - he was sentenced to 365 days imprisonment – 105 days minimum to serve; the balance suspended for 2 years.

(b)      21 February 2002

The Department issued a Notice of Intention to cancel the applicant’s visa under s501(2) of the Act, relying on the offences mentioned in paragraph (a) above and “Your criminal history whilst in Australia” He was invited to respond and did so. On 3 October 2002 he was interviewed by an officer. At the interview he said (inter alia) “I don’t see myself as a criminal.  I’ve been in certain places at the wrong time.”

(c)       11 October 2002

The applicant was convicted in Ararat Magistrates Court of intentionally causing injury, possessing a firearm, behaving riotously and offensively, using indecent language and breaching the suspended sentence imposed on 19 November 2001.   He was sent back to jail.

(d)      20 October 2003

The Department wrote to the applicant and indicated awareness of the convictions mentioned in paragraph (c).   The applicant was asked to contact the relevant officer.   He was not put on notice of visa cancellation on this occasion.

(e)      28 October 2003

The applicant contacted the Department by letter dated 22 October 2003 asking that his visa not be cancelled and providing family and other details.  He concluded “I am prepared to undertake further counselling and/or self improvement education, if this is required to assist me to be a more responsible and law abiding person.”

(f)       4 January 2004

The applicant committed further offences at Ararat.

(g)      1 March 2004.

The Department again wrote to the applicant giving further notice of intention to consider cancelling his visa.   Reliance was placed upon “Your criminal convictions in Australia, in particular your conviction of 14 May 2002 in Ballarat Country Court for theft (2 counts) and intentionally causing injury.”  Mention was also made of new charges (which were detailed) preferred against him on 7 January 2004 at Ararat (see paragraph (f)).

(h)      26 March 2004.

The applicant committed further offences at Ararat.

(i)        17 May 2004.

The applicant was convicted at Ararat Magistrates Court in respect of those offences mention in paragraphs (f) and (h) and sentenced to 8 months imprisonment.   The offences included intentionally threatening serious injury, assaulting police and 3 vehicular offences.

(j)        9 July 2004.

The Department sent to the applicant a third Notice of Intention to Consider cancellation of his visa based upon his “criminal convictions in Australia”.    Reference was made to his convictions on 17 May 2004 referred to in (i) above and other matters.   He was provided with a further opportunity to comment on these matters.

(k)       15 – 20 July 2004.

The applicant responded in writing.   His mother also spoke to an officer.  Ms Miskovic, his de facto partner, attended an interview on his behalf and written submissions were received from his sister, his brother-in-law and a close friend, Belinda Ross.

(l)        24 September 2004.

The Departmental delegate decided to cancel the applicant’s visa.

9.      I have mentioned these steps in detail because Mr Doran placed some emphasis upon an argument that the applicant had not been “formally advised” about conduct which may bring him into contention for visa cancellation in accordance with the process envisaged by the terms of paragraph 2.17(k) of the Minister’s Direction No 21, dealing with the exercise of discretion.

10.     It may be true that the applicant was not formally warned in a face to face encounter with a departmental officer, but the real question in my view is whether or not he fully appreciated at the relevant times that further offending would place his visa in jeopardy and that as consequence, he may be deported.   I am in no doubt that he did.   He became aware of this not later than 3 October 2002.    The Departmental notices which I have referred to above made it abundantly clear that his continuing criminal conduct was being monitored for just such an eventuality.   His correspondence in reply also betrays this awareness on his part.  In this respect paragraph 2.10(a) of the Direction 21 which is less rigid in its requirements than 2.17(k) is plainly applicable.

11. By Direction No 21 under the provisions of s499 of the Act, the Minister has directed decision-makers, including those engaged in the review process, to have regard to a number of considerations when exercising a discretion to decide whether or not a non-citizen should be permitted to enter or remain in Australia. Decision-makers are enjoined to have due regard for the importance placed by the Government on three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations. The three primary considerations referred to are:

(a)      The protection of the Australian community and members of the community.

(b)      The expectations of the Australian community.

(c)In all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of that child or children.

A. Protection

12.     Consideration needs to be given to the necessity to take reasonable steps to protect the community from criminal activity and the risk of such activity.   To this end account must be taken of the seriousness and nature of the applicant’s established conduct, the risk of recidivism and the potential for visa refusal or cancellation to deter similar conduct by others.

13.     The pattern of the applicant’s criminal behaviour over a long period of time has some examples of conduct which would be regarded as “very serious” in the table provided in paragraph 2.6 of the Minister’s Direction No 21.    There is one conviction for armed robbery, and two for intentionally causing serious injury.   The Minister does not include housebreaking (burglary) or stealing in the “very serious” list (except theft involving large sums of money) but whether taken singly  or collectively, I take the view that illegal entry into a residence for the purpose of crime is indeed a serious matter.   It usually involves at least a risk of violent confrontation and can cause distress and upset to a victim who may feel his or her sanctuary has been violated or has lost property of sentimental value.   There are several examples of housebreaking and associated theft in the applicant’s record.

14.     It is also relevant to note that the applicant’s history of offending includes numerous examples of criminal behaviour extending over a wide spectrum.    He has been convicted of dangerous driving, criminal damage to property, intentionally causing injury, burglary, theft, armed robbery, carrying a firearm, resisting police motor vehicle theft, false pretences, riotous behaviour.  There are several examples of most of these.   From reports provided by the police it is pretty obvious that he has a contempt for police and a lack of consideration for the rights of other citizens.   Furthermore, his convictions show no indication of becoming less frequent or serious.    In the popular sense he could well be regarded as an habitual criminal.  At all events it is a fair inference in my opinion that his criminal activity shows no sign of moderating and accordingly I regard the risk of recidivism as high.

15.     In my opinion there would be a clear message sent to other potential recidivists if the applicant’s visa were to be cancelled.    It should not be seen that his propensity to ignore the clear warnings signalled by the Department between November 2001 and September 2004 may allow him to escape the imposition of consequences.

Expectations

16.     Community expectations are to be judged in the light of the inferred views of moderate and reasonable members of society with an intelligent understanding of all relevant facts.

17.     As Direction 21 says, the community expects non-citizens to obey Australian laws.    The real question in the present case in this.   Would the community expect a 30 year old offender who has spent most of his life in Australia to have his visa cancelled by virtue of his chronic history of antisocial criminal behaviour.   He identifies himself as Australian and his immediate family, except for his grandmother in New Zealand, resides in Australia.    There is a close bond with his sister.   Mr Doran submitted that the middle-of-the road Australian would say “Baker is Australia’s challenge to deal with and we should give him an opportunity to prove himself here”.

18.     I do not agree.    The applicant has been given opportunity after opportunity to prove himself but has failed.   He is 30 years old and he is still offending.  He is making no contribution of value to Australian society.   By requiring incarceration and police attention he is obviously a financial burden to the Australian taxpayer.   He may improve in years to come but there is no certainty as to this.    He can no longer be regarded as a wayward youth.    I can see no reason apart from extravagant sentimentality or an abnormal proclivity to weakness as justifying the view that Australia should continue to put up with the applicant’s chronic offending behaviour.  I am confident the Australian community expectations would be that his visa should be cancelled.

Children

19.     The best interests of the children of the applicant must also be taken into account as a primary consideration pursuant to Direction 21.   To properly evaluate this consideration as a factor in reaching a conclusion whether or not to exercise my discretion in the applicant’s favour, those best interests must be specifically identified (Wan v Minister for Immigration and Multicultural Affairs (2000) 107 FCR 133). If such best interests indicate that the applicant’s visa should not be cancelled, the strength or cumulative effects of other considerations may nonetheless outweigh them in the final analysis (see Wan).   I turn therefore to consider these issues.

20.     Prior to his present incarceration, the applicant was living in a de facto relationship with Tanya Miskovic now aged 27 years.   Ms Miskovic is the mother of 2 children – Jade aged 4½ and Alana aged 19 months (d.o.b. 30 April 2003).   The applicant is the father of Alana.   Jade’s father was involved with Ms Miskovic in a previous relationship.   Jade’s father maintains a close parental relationship with her.  He sees her at weekends.    Ms Miskovic has indicated that she would follow the applicant to New Zealand if necessary to preserve her relationship with the applicant.   She would obviously take Alana with her if she did so, but there would equally obviously be an impediment to this plan if she were to take Jade with her as well.  At the present time she is Jade’s primary carer.    As neither Ms Miskovic nor her former partner gave evidence any potential means of accommodating this difficulty has not been capable of exploration.    I think it must be inferred that if the applicant’s visa is cancelled and he is deported to New Zealand, he would not be joined by Ms Miskovic and Alana who would, in all probability, continue to reside in Australia.   Ms Miskovic is an Australian citizen.

21.     In these circumstances it may be contended that it is in Alana’s best interests that her father be permitted to stay in Australia.   However this issue is not clear cut.   The applicant has a bad criminal record.   He was sentenced to 4 months imprisonment on 11 October 2002 and was directed to serve the remainder of a suspended sentence (a total of 260 days).   Thus he was in jail when Alana was born and was not released until 27 October 2003.   Alana was then 6 months old.   He was re-arrested on 7 January 2004 and charged with further serious offences.   Some of these had been committed within 2 months of his release from prison.   He was convicted on these charges on 27 May 2004 and sentenced to an aggregate of 8 months imprisonment.   His estimated release date is 16 January 2005.     His pattern of offending shows no indication that his antisocial and violent behaviour is diminishing, and it is reasonable to conclude that there is a substantial likelihood that he will continue to offend and, on detection and conviction, be imprisoned in the foreseeable future.    In such circumstances it is questionable whether he will be in a position to form a close and lasting relationship with Alana.

22.     It is also open to doubt whether his influence on her, if he were to do so, would necessarily be beneficial and in her best interests.    He cannot be regarded as a “young” offender who is likely to change his ways either by the process of maturity or the benign influence of matrimony and paternal responsibility.   Nor can it be assumed that he is likely to secure worthwhile employment or be able to financially secure his daughter’s future by lawful means, particularly if his past fondness for liquor and drugs continues upon his release.

23.     Furthermore, it cannot be assumed that he will necessarily lose all contact with Alana if he returns to New Zealand.   Australia and New Zealand have close cultural ties and travel from one country to the other is now little more difficult or costly than travelling between Australian states.   I see no reason why Alana should not have fairly regular contact with the applicant in the future if there is a mutual wish for this relationship to endure.   There has been no suggestion and no reason to suspect that Ms Miskovic will be unable to continue to care for Alana in an appropriate manner on her own.   There is also some uncertainly, which I have from considering the G documents as to the nature of the applicant’s relationship with Tanya Miskovic.   In a report (G14, page 245, 8 January 2004) Detective Constable Walker of Ararat CIB  advises the Department that the applicant was then living at 2/13 Marx Crescent Ararat and Ms Miskovic was living at 4/10 Blake Street.    “They are only just boyfriend/girlfriend and not de facto or anything serious”.  I am unable to conclude that it would be in Alana’s best interests that the applicant’s visa not be cancelled.

24.     The applicant is also the father of 3 other children (1 son and 2 daughters) from a previous relationship with Ms Tanya Fagg which came to an end after he was convicted of armed robbery and imprisoned in 1994.    Those children, now aged 10,11 and 12, reside at Ballarat with their mother.    The applicant has been refused contact with these children since the end of the de facto relationship.   The applicant claims to miss his children and has contemplated seeking legal help to obtain access.   There is no evidence that he has taken any such steps over the last 10 years.    It seems likely that after such a long period apart the children and their father would be virtual strangers, at least in the short term.    In the present circumstances, I am unable to conclude that the interests of any of these 3 children would be best served by the applicant remaining in Australia.

25.     After separating from Ms Fagg, the applicant lived in a de facto relationship with Ms Samantha Edwards.   There were no children born of this union.   However Ms Edwards’ four children from a previous relationship lived with them until their relationship ended in 2000.   Thereafter the applicant had no further contact with Ms Edwards’ children nor did he expect to do so.   There is no basis for concluding that his relationship with these children may be revitalised if he remains in Australia.   His return to New Zealand should not be a cause for concern on this account.   It is not in the best interests of these children that he remains in Australia.

Other Considerations

26.     Mr Doran directed my attention to the issues identified in paragraph 2.17 (a) – (k) of Direction 21.    I have already referred to the applicant’s family relationships.   He is close to his sister Angela, and she would be extremely upset if he were to return permanently to New Zealand.    I have already mentioned that Ms Miskovic would probably find it difficult if not impossible to follow him with Alana.   Her emotional reaction to such a prospect is difficult to gauge from the material on file.   The applicant’s mother, Susan Barr, says that she would be “devastated” if her son were to be sent back to New Zealand.   She says she is afraid to travel because of terrorism so it would be a problem to see him while she remains resident in Australia.   I do not accept that this attitude amounts to an inability on her part to travel to see her son if she really wishes to do so.   It would be fair to say that in each of the 3 cases just mentioned a degree of hardship would be caused to the relevant family member.    There is no basis on which it can be concluded that any of them is financially dependant on the applicant,.    As already mentioned above there is no evidence of the applicant’s rehabilitation.   I have already dealt with the “formal advice” issue raised by Mr Doran in respect of paragraph 2.17(k) of the Direction.   There are no relevant international obligations.

Conclusion

27.     In my opinion the contentions raised in the applicant’s favour do not outweigh the considerations which suggest to me that the applicant’s visa should be cancelled.  Accordingly, I do not propose to exercise my discretion to take action to preserve the visa.   The decision under review is affirmed.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright QC., (Deputy President)

Signed:  K L Miller (Administrative Assistant)

Date/s of Hearing  2 December 2004
Date of Decision  14 December 2004
Counsel for the Applicant         Mr Doran
Solicitor for the Applicant          Nevett Ford 
Counsel for the Respondent     Mr Michael Bereton
Solicitor for the Respondent     Australian Government Solicitor