Basescu and Minister for Immigration and Multicultural Affairs - [2000] AATA 317

DECISION AND REASONS FOR DECISION [2000] AATA 317

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2000/127

GENERAL   ADMINISTRATIVE   DIVISION )
           Re      Constantin Marian Basescu
  Applicant
           And    Minister for Immigration and Multicultural Affairs
  Respondent

DECISION

Tribunal Deputy President B.M. Forrest

Date20 April 2000
PlaceMelbourne

Decision      The decision under review is set aside and the matter is remitted to the respondent with a direction that the visa the subject of the application for review should not be cancelled under s. 501 of the Migration Act 1958.
  .........(Sgd. B.M. Forrest)...........
  Deputy President
CATCHWORDS
IMMIGRATION – Cancellation of permanent residence visa on character grounds – applicant arrived in Australia in 1988 as a refugee from Romania – fails to pass the character test due to substantial criminal record – whether discretion should be exercised – Direction No. 17(2) – criminal offending result of heroin addiction – recidivism – best interests of the children – Refugee Convention – decision set aside.
Migration Act 1958 ss. 499, 501(2), (6)(a) and (7)(c)
Luu and Minister for Immigration and Multicultural Affairs unreported decision No. 12,190
Luu v Minister for Immigration and Multicultural Affairs (1998) 157 ALR 213
Minister for Immigration and Multicultural Affairs v SRT (1999) FCA 1197

REASONS FOR DECISION

20 April 2000 Deputy President B.M. Forrest

This application by Mr Constantin Marian Basescu is for review of a decision made by a delegate of the Minister to cancel his permanent residence visa. In making that decision, pursuant to s. 501(2) of the Migration Act 1958 ("the Act") the delegate found that the applicant does not satisfy the character test.
Section 501 of the Act in its present form is a result of the amendments introduced into the Act by the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998, No. 114, with effect from 1 June 1999. Section 501(2) of the Act provides:
"(2) The Minister may cancel a visa that has been granted to a person 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 the person passes the character test."
In cancelling the visa the delegate relied on s. 501(6)(a) of the Act:
"(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
…
Otherwise, the person passes the character test."
"Substantial criminal record" is relevantly defined in s. 501(7) of the Act:
"(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
…"
The applicant was unrepresented at the hearing. Although he had a good understanding of English he struggled with the task of representing himself. A written submission on his behalf by a legal aid solicitor who was providing him with some assistance was before the Tribunal.
Mr Basescu is a Romanian citizen. He was born in Brasov, Romania on 14 June 1964 and grew up there. He completed year 12 schooling and on leaving school at age 17 worked in the motor trade as a spray painter for two and a half years and then as a wood fabricator for two years. In 1986 he was detained attempting to leave Romania without permission and imprisoned for five months. He then worked for a few months as a painter for a petroleum company before leaving Romania again without permission and travelling to Yugoslavia. He spent four months there, and was granted an Eastern European refugee category visa by the Australian Embassy in Belgrade on 4 January 1988.
He arrived in Australia on 13 January 1988, then aged 23 years. He spoke very little English. In Australia he resided at Enterprise hostel in Springvale for six months then for a short period shared accommodation with other Romanians in the Dandenong area. He had no formal English training relying on friends to gain an understanding of English. About twelve months after arrival in Australia, he obtained work as a spray painter. Six months later he was retrenched through lack of work. He has not been employed since and for most of that time has received unemployment benefits.
While in Enterprise hostel he met Monica Estay now Vezelici ("Monica"), a migrant from Chile. They began living together in 1988. They have three children, Anthony born 25 November 1991, Brian born 4 January 1994 and Constantin Junior born 22 April 1995. They separated in 1995 with the children remaining with Monica.
Mr Basescu has an extensive criminal history in Australia for predominantly drug, motor vehicle and property related offences. It is unnecessary to recite the history in detail which is outlined in the material before the Tribunal. In summary the applicant has a criminal history dating from 1989 which includes six counts of possession of heroin, four counts of use of heroin, two counts of trafficking heroin, four counts of failure to answer bail, seven counts of driving while disqualified, one count of obtaining property by deception, two counts of possessing suspected stolen goods, two counts of theft of motor vehicle, three counts of burglary, four counts of theft, three counts of handling stolen goods and four counts of breach of a suspended sentence.
I am satisfied that pursuant to s. 501(2) of the Act, the Minister has reasonable grounds to suspect that the applicant does not pass the character test and in fact does not pass the character test. That is that the applicant has a "substantial criminal record" as defined in s. 501(7)(c). The applicant is presently in custody serving a sentence of fifteen months imprisonment with a non parole period of nine months for burglary and theft committed on 16 September 1999. He was initially sentenced in the Dandenong Magistrates' Court on 21 September 1999 to nineteen months imprisonment with a non parole period of twelve months. On appeal the sentence was reduced to fifteen months with a non parole period of nine months expiring in June 2000. This sentence satisfies the statutory definition of a substantial criminal record.
There remains the question of whether despite failing the character test, the discretion contained in s. 501(2) should be exercised to cancel the applicant's visa. For the purpose of the exercise of the discretion under s. 501(2) of the Act to cancel a visa, the Minister has issued Direction No. 17(2) with effect from 17 June 1999 which has the force of s. 499 of the Act ("the Direction"). The Direction provides guidance to decision makers in making a decision to refuse or cancel a visa under s. 501 of the Act. The Direction requires that the Tribunal have regard to three primary considerations and a number of other considerations. This requires a balancing exercise having due regard to the primary considerations but also taking into account all relevant considerations. The primary considerations are:
(a)the protection of the Australian community, and members of the community;
(b)the expectations of the Australian community; and
(c)in all cases involving a parental relationship between a child or children and the person under consideration, the best interests of the child or children.
A consideration of community protection requires an assessment be made of the level of risk to the community by the continued stay of the person within its midst. The factors relevant to that assessment are set out in paragraph 2.5 of the Direction as:
(a)the seriousness and nature of the conduct;
(b)the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).
An examination of the applicant's criminal history reveals offences involving illicit drugs. Some of the drug offences fall within the category of "very serious" offences listed in paragraph 2.6(a) of the Direction. There is the very first conviction on 16 October 1989 which was for trafficking heroin. He was sentenced to six months imprisonment. In relation to that offence the applicant claimed that he was not trafficking in heroin. When he was arrested initially for motor car offences he had two caps of heroin in his possession which he said were for his own use. He believed that his then lack of understanding of English led to his conviction on the more serious charge of drug trafficking. There is no material before the Tribunal as to the circumstances of the offence. However it is a well settled principle that the Tribunal cannot impugn the fact of conviction of an offence. See Luu and Minister for Immigration and Multicultural Affairs, unreported Tribunal decision No. 12,190 and on appeal Luu v Minister for Immigration and Multicultural Affairs (1998) 157 ALR 213. More recently this principle was affirmed by a Full Federal Court in Minister for Immigration and Multicultural Affairs v SRT (1999) FCA 1197.
On 29 November 1989 he was sentenced to four months imprisonment for trafficking heroin. There were further offences involving drugs; he received a nine month suspended sentence on 17 October 1991 for possession and use of heroin. On 2 July 1993 he received a community based order for offences including using a drug of dependence and for exceeding the prescribed alcohol concentration while driving. A term of the order required that he undergo assessment and treatment. On 6 June 1994 he was convicted of use of a drug of dependence and sentenced to two months imprisonment suspended for twelve months. On 1 October 1996, he failed to appear on charges of one count of possession of heroin and one count of use of heroin. He was subsequently convicted of these charges on 3 February 1997 and received four months imprisonment suspended for two years. Further, convictions for theft, burglary and other property offences were related to his drug addiction.
It was submitted by the respondent that the applicant presents as an unacceptable risk of further transgression. That risk it was submitted, having regard to his criminal record, his drug addiction and the committing of crimes to support that addiction, is extremely high. It was further submitted that the applicant's assertions that his past behaviour is behind him should be disregarded given his history of reoffending and the fact that he reoffended in September 1999 after receiving warnings about his risk of deportation from the Department on 5 February 1999 and the notice of intention to cancel his visa shortly before his release on parole.
I take into account that the applicant was warned as to the possibility of his deportation under s. 200 of the Act on 5 February 1999. That at an interview on 10 August 1999 he was told that he was liable to be deported. The respondent then proceeded to consider the cancellation of his visa under s. 501 of the Act and on 26 August 1999 sent him the notice of intention to cancel a visa. It is doubtful that this notice of intention constitutes the type of warning contemplated by paragraph 2.10(a) of the Direction. In any event he did not have a proper appreciation of its gravity.
The applicant gave the impression of being motivated to rehabilitate himself and not wanting to reoffend. This has to be viewed with caution as previous assurances to change his lifestyle have not been accomplished yet it would be unfair to equate past failure with an absence of motivation. A number of factors principally drug and alcohol addiction contributed to his offending.
Mr DeMoel, a supervisor at Fulham Correctional Centre where the applicant is serving his current sentence reports (Ex. A2) that the applicant is courteous and respectful of the policies and guidelines governing inmates and at no time has he been involved in any incidents. He added that the applicant has kept himself busy with employment and library use and has been given a position of trust with the centre. Earlier he had completed some vocational courses conducted by East Gippsland TAFE College.
Urine tests for substance abuse (19 occasions from 25 February 1999 to 22 December 1999) were negative. Positive results were confined to prescribed anti-depressant medication. The applicant said that he stopped drinking alcohol in 1998. However his drug addiction remains a problem despite undertaking a methadone program and drug rehabilitation. The burglary committed on 16 September 1999 (after being released on parole on 4 September) was said to have been committed to obtain some money to buy heroin. The applicant said that when he was released on parole he was destitute with no money, no accommodation, no friends and nowhere to turn. It was apparent from his evidence that at the time he was resigned to returning to prison.
Senior Constable Jean who had arrested the applicant on an earlier occasion in 1998 commented that the applicant was leading a vagrant lifestyle. On that occasion the applicant was arrested after eating some food in a city cafe for which he had no money to pay.
Dr Lis, a psychiatrist who is also the medical officer at Fulham said that shortly after the applicant came to Fulham in March this year, he found the applicant moderately depressed at the prospect of deportation. In a report (Ex. A9) Dr Lis wrote that the applicant enjoys good physical health and has not been treated for any serious psychiatric disorders. No evidence was found to suggest that he was suffering from any significant psychiatric disorder or from an antisocial personality disorder. Further, he did not attempt to minimise his culpability in respect of his criminal record. In his evidence Dr Lis remarked that when the applicant was released on parole on the last occasion no pre-release rehabilitation was provided. He said that Fulham has a rehabilitation program which will be offered to the applicant prior to his release.
The applicant's criminal history viewed objectivity suggests that he is more likely than not to reoffend. The task of trying to predict future behaviour is by nature a speculative exercise but in so far as past behaviour is any indicator of future conduct, the applicant appears to be a risk to the community because of the duration and frequency of his offending. Although he has been a persistent offender he is not a hardened criminal. Criminal behaviour commenced in 1989 when he was unemployed and after a friend introduced him to heroin. He acquired an addiction to alcohol and heroin. What can be said is that while the applicant's criminal history is extensive, in terms of seriousness, the heaviest sentences were imposed for recent behaviour, two separate offences of burglary and theft attracting sentences of fifteen months imprisonment on each occasion for each offence.
At face value his personal circumstances would suggest that the prospects of successful rehabilitation are not particularly good. He has no money, no immediate offer of employment and is separated from his family. As against that the report of Mr DeMoel is a positive sign of a person intent on making amends. There is evidence that he is coming to grips with his drug addiction and that circumstances on release will be more appropriate. Dr Lis is aware of the position and will ensure that rehabilitation measures are in place. Additionally, this time he has former friends from Romania settled in Melbourne with whom he was recently reunited and who have offered him accommodation and assistance on release. They attended both days of the hearing and were favourably known to Monica.
All of this leads me to the conclusion that on balance the applicant has moderate prospects of rehabilitation. The key to any risk assessment is in the ability of the applicant to keep his drug addiction under control. In this regard he is as noted earlier reacting in a positive manner.
It was not disputed that the applicant's criminal conduct was linked to his drug addiction. In this context, I do not regard the general deterrence factor as one of much weight as I think it would be unrealistic to suggest that the removal of the applicant from Australia may deter other addicts whose criminal behaviour is motivated by drug addiction.
The community is entitled to expect that it should not have to take an unacceptable risk of further offending by the applicant particularly in trafficking in drugs.
At my request Mr Knowles, solicitor for the respondent made enquires as to the whereabouts of Monica and the children. I commend his efforts to discover her whereabouts and to arrange for her to give evidence at short notice on the second day of the hearing.
Monica, a Chilean by birth is now an Australian citizen. She works as an aged care nurse. In her evidence Monica said that she believed that when she commenced the relationship with the applicant he was not then involved with illicit drugs but after a time she became suspicious. At first he denied it. She was upset because she was anxious to commence a family. By the time their first child was born in November 1991, she knew that he was involved with drugs. He did not use heroin in the presence of the children but when he was away from the home. She confirmed that in 1992 or 1993 he undertook a drug rehabilitation program in an endeavour to control his addiction. In 1994 they decided to move to Churchill in the Latrobe Valley when a Ministry of Housing dwelling had been allocated to them. The move was prompted by their both wanting the applicant to get away from undesirable "friends" in the Romanian community in the south eastern suburbs of Melbourne. The applicant was unable to find work in the Latrobe Valley other than "bits and pieces". He began to drink more heavily.
According to Monica they separated in March 1995 prior to the birth of their third child, Constantin junior. The applicant in his evidence thought that they separated shortly after his birth (in May 1995). The applicant went to live in a boarding house and Monica and the children moved in with Mr Sava Vezelici, a Romanian and a friend of the applicant, whom she had known since her arrival in Australia. Monica married Mr Vezelici on 7 November 1998 and they have one child, an 18 month old daughter. Monica, her husband and the four children live in a four bedroom house. Monica has custody of the three children from her relationship with the applicant.
The applicant maintained contact with his children for a further two to three years after they separated. It was the practice for Monica to bring the children to meet their father at pre arranged meeting places away from her home. The applicant had Monica's phone number but not her address. Currently he has neither. There was tension between them because of her relationship with her now husband who had been the applicant's closest friend.
The applicant has not seen his children since 1997. An access visit had been arranged at a McDonald's restaurant a fortnight after a previous weekend access visit. Monica was late arriving with the children. By the time she arrived the applicant had left believing he had been denied access. She thought that he telephoned her a few times afterwards although according to his recollection there was no further contact. She said she wondered what had happened to him and later heard from her family that he was in further trouble. Monica added that the older boys looked forward to visiting their father, the eldest often asking where his father is and rather than tell him he is in gaol again, she tells him that he is working far away. Before she separated from the applicant, Monica visited him in gaol on a number of occasions with the children. She observed that when he was at home he related well to his children. She said they still talk about him and she is happy for them to resume access visits. She will support any reasonable efforts to re-establish a relationship with his children. She believes that it is her children's right to see their father.

Monica impressed me as an honest well-meaning person concerned that the children have some contact with their father. It was clear from her evidence that the children, in particular the elder two, are aware of their father's existence and have some bonds with him. Human experience would suggest that in those circumstances permanent separation may cause some problems for the children. In this regard I acknowledge that any adverse impact would be likely to be less on Constantin Junior who has had less contact with his father than Anthony and Brian.
The applicant has two children from a defacto relationship in Romania in 1983-85. John aged 17 years and Catalan aged 15 years. The applicant has had no contact with the children or their mother since he first left Romania in 1986. The applicant is unaware of their present whereabouts. Other than the fact that the applicant displayed no apparent interest in the welfare of his children in Romania I am unable to take this matter any further.
The applicant entered Australia in 1988 as a refugee. Before finally escaping from Romania he had been imprisoned for five months for attempting to leave Romania without a permit. At the time he left Romania, the repressive communist regime of President Ceausescu was in power. Ceausescu was assassinated in December 1989. Circumstances have since changed in Romania. It is now a constitutional republic. Romanians are free to travel and return. In 1991 Romania became a signatory to the United Nations Convention Relating to the Status of Refugees and the 1967 Protocol ("the Convention"). The applicant did not suggest he was at risk of persecution if returned to Romania. I accept that there is no likelihood of the applicant's life or freedom being at risk if he is returned. Because of the changed circumstances in Romania, the applicant can no longer claim the benefit of Article 33(1) of the Convention. In view of this finding it is therefore unnecessary to consider Article 33(2) which provides an exception to Article 33(1).
When the applicant left Romania in 1986 both his parents and a younger step brother lived there. He does not know their present circumstances or whereabouts. The last contact with his mother was in 1991 when he telephoned to tell her of the birth of his first child in Australia. He has had no contact with his father (who was separated from his mother) or with his step brother since leaving Romania. He has not made any return visits.
Although the applicant has effectively lost contact with his family in Romania, it is reasonable to expect that he would have some prospect of satisfactory resettlement given his cultural and language ties and the fact he lived there until he was 23 years of age. In saying that I do not disregard the hardship he would face in seeking to resettle in a country somewhat different to the one he left and after a thirteen year absence, and in attempting to overcome an absence of recent work experience and a drug addiction acquired during that absence.
The applicant has not made any worthwhile contribution to the Australian community. His employment in Australia is limited to about six months. He said he made many attempts to find work, frequently visiting the commonwealth employment service but with limited English and a drug problem, the task was difficult. Additionally, the move with his family to the Latrobe Valley region in the early 1990s although well intentioned would not have enhanced employment prospects as it was made at a time of historically high unemployment in the region following the decision of the Victorian government of the day to dismantle the former State Electricity Commission. He was unable to find work in the area.
Clearly the applicant has not been a success story in this country. It must be kept in mind however that his criminal activity is predominantly attributable to a drug addiction acquired since he arrived in this country as a refugee. He regards Australia as his home and while he has been a disappointment in the sense of his criminal behaviour is it the correct or preferable response that his visa be cancelled?
The applicant has three boys, Australian citizens who are entitled to the basic rights of maintaining contact with their father. Certainly their mother had no misgivings about wanting the applicant to remain in Australia and having contact with his children. This was an important consideration as she is in the best position to make that judgment. To deprive the children of that opportunity would to my mind be harsh despite the fact that he has had no contact with his children in recent times.
In my opinion, having regard to the Direction and relevant considerations as discussed, this is a case where the discretion should be exercised in the applicant's favour.
The decision under review is set aside and the matter is remitted to the respondent with a direction that the visa the subject of the application for review should not be cancelled under s. 501 of the Act.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President B.M. Forrest
Signed:         .....................................................................................
  Associate
Date/s of Hearing  4 and 5 April 2000
Date of Decision  20 April 2000
For the Applicant  in person
Solicitor for the Respondent    Mr R. Knowles, Australian Government Solicitor