Baudromo and Minister for Immigration and Citizenship

[2011] AATA 896

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 896

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No 2011/4383

GENERAL ADMINISTRATIVE DIVISION		)
Re		Opetaia Babakobau Baudromo

Applicant

And Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal The Hon. Brian Tamberlin QC, Deputy President

Date16 December 2011

PlaceSydney

Decision The decision under review is SET ASIDE.  

....................[sgd]..........................

Deputy President

CATCHWORDS

IMMIGRATION & CITIZENSHIP:  Visa cancellation – character test - substantial criminal record - exercise of discretion to cancel applicant's visa pursuant to s 501(2) of the Migration Act 1958 – Direction [41] applied – protection of the Australian community – seriousness and nature of the relevant conduct – the risk conduct may be repeated – applicant a minor when began living in Australia – substantial ties to the Australian community - Decision under review set aside.

LEGISLATION

Crimes (Administration of Sentences) Act 1999 (NSW), s135

Migration Act 1958 (Cth), s 501

Direction [No. 41] - Visa Refusal and Cancellation under section 501

REASONS FOR DECISION

16  December 2011   Deputy President Mr Brian Tamberlin QC           

1. On 30 September 2011 the delegate of the Minister for Immigration and Citizenship cancelled the Class BF, Transitional [Permanent] visa of the applicant on the ground that the Minister reasonably suspected that the applicant did not pass the character test and in the exercise of the Ministerial discretion under s 501(2) of the Migration Act (1958) (“the Act”).

2.       The applicant first arrived in Australia on 21 December 1988 at the age of eight years, and has lived here continuously ever since.  His visitors visa expired on 21 March 1989 but he remained in Australia unlawfully.  His Class BF, transitional (permanent) visa allowed him to remain in Australia permanently until cancelled.  On 20 April 2011 a Notice of Intention to Consider Cancellation of his Visa was sent to him and he was given an opportunity to comment in response.  He made a response.  He was subsequently given further information by the Minister and an opportunity to meet all information in the possession of the Minister.

3.       It is common ground that the applicant does not pass the character test under s 501(6) of the Act because he has a substantial criminal record having been sentenced to two or more terms of imprisonment where the total of those terms is two years or more.  He is presently 31 years of age and his criminal record dates from the age of 13 years.  The applicant’s offences, committed as adult, are listed as follows:

Court	Date	Offence	Court Result
Sydney, District	24 Jan 2006	Aggravated break & enter & commit serious indictable offence – people there. Aggravated assault with intent to take/drive motor vehicle - armed with weapon	On each: Imprisonment 4 years and 3 months.
Be carried in conveyance taken without consent of owner Break and enter with intent Take and drive conveyance without consent of owner (2 charges) Goods in custody suspected of being stolen.	On each:  taken into account on form1.
Central, Local	20 Oct 2005	Unlicensed driver/rider (Never licensed) Negligent driving	On each charge:  Fined $300
Central, Local	17 Jul 2002	Found with intent to commit indictable offence, previous conviction	Imprisonment 5 months.
Maliciously destroy or damage property (2 charges)	On each charge:  Imprisonment 3 months.
Enter inclosed land not prescribed premises without lawful excuse (2 charges)	One each: without conviction. No further penalty imposed.
Central, Local	24 May 2001	Steal property in dwelling house	Imprisonment 4 months.
Found with intent to commit indictable offence, previous conviction (2 charges)	On each charge:  Imprisonment 3 months.
Enter prescribed premises of any person without lawful excuse (2 charges)	On each charge:  Fined $500.
Goods in personal custody reasonably suspected being stolen.	Convicted. Sentenced to rising of the court.
Balmain, Local	07 Mar 2001	Possess prohibited drug	Fined $500
Parole Board, Not Applicable	27 Feb 2001	Break and enter building Commit serious indictable offence	(Call up) Imprisonment 8 months and 7 days
Central, Local	30 Aug 2000	Break and enter building Commit Felony (Steal)	Imprisonment 15 months
Use motor vehicle/trailer without obtaining consent of owner	Fined $100
Central, Local	04 Aug 2000	Possess/use a prohibited weapon without permit	Fined $500
Possess prohibited Drug; Resist or hinder police officer in the execution of duty	On each charge:  Fined $100
Goods in personal custody reasonably suspected being stolen (2 charges); Receiving theft (2 charges)	On each charge:  Imprisonment 6 months
Break and enter building (2 charges)	On each charge:  Imprisonment 15 months
Downing Centre Local	25 Jan 2000	Goods in personal custody reasonably suspected being stolen	Fined $1,000

4.       The applicant was sentenced to a total term of 11 years 3 months commencing on 17 December 2003 which would expire on 16 March 2015 with a total non-parole period of 7 years and 6 months which expired on 16 June 2011.  On 28 September 2011 a Parole Order was issued by the NSW State Parole Authority (“Parole Authority”) which directed the offender be released on parole not later than 6 October 2011.  He was released and immediately placed into Immigration Detention. 

5.       The applicant lodged an application for review of the cancellation decision with this Tribunal. 

6.       The issue for the Tribunal is whether the decision of the Minister was the correct and preferable decision in the exercise of his discretion under s501 and if not, what is the correct and preferable decision.

BACKGROUND INFORMATION

7.       In deciding this issue, the Tribunal is bound to have regard to the Ministerial Direction No.41 Visa Refusal and Cancellation under section 501.  In para 10(1) of that Direction, there are four primary considerations the Tribunal must take into account and these are as follows:

(a)the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;

(b)whether the applicant was a minor when he began living in Australia;

(c)the length of time that the applicant was ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and

(d)relevant international obligations.

8.       In addition, paragraph 11 of the Direction requires certain other considerations to be taken into account where relevant but they are generally given less weight than the primary considerations referred to above.

9.       The other considerations are:

·The extent of disruption to the applicant’s family, business and other ties to the Australian community;

·The health of the applicant;

·Any links the applicant may have to Fiji of which he is a national;

·Any hardship likely to be experienced by the applicant or his immediate family members lawfully resident in Australia if the visa is cancelled;

·The applicant’s education;

·Whether the applicant has previously been formally advised by an officer of the Department about conduct that brought the person within the character visa refusal and cancellation provisions of the Act.

10.     The applicant was born January 1980 and has lived in Australia since 1988 when he arrived aged eight.  Five years after his arrival in Australia at age 13 he first engaged in criminal activity.  Some of his offences were committed whilst on parole or bail.

11.     An account of the applicant’s most recent offence in 2003 for which received the longest sentence appears in the sentencing remarks of Judge Blackmore of the District Court as follows:

“At about 1pm on Thursday 12 June 2003 the offender attended the Commonwealth Bank, Marion Street Leichhardt in company with three other persons.  The offender and other persons were in possession of a stolen five series model BMW vehicle.  The vehicle had apparently been stolen at Vaucluse on 10 June 2003.

The offender and others entered the Commonwealth Bank and at that time they were armed with a sledgehammer and were disguised.  The offender was disguised using a baseball cap and a bandanna and was wearing a latex glove on his left hand.  The other males were wearing balaclavas.  Upon entering the bank the offender and the others declared their intentions to the staff and customers and demanded that they lay on the ground.   The offender and other males commenced to attempt to smash their way into the teller area using a sledgehammer on the door which allowed entry to the teller area.  Whilst that was occurring the staff activated the screen doors and called the police.

The offenders continued to hit the staff door but failed to make the door give way.  The male person that was hitting the door was wearing a police scanner indicated that they had to leave.  The offender and others ran back to the BMW sedan and drove from the bank towards Annandale.  Whilst travelling in Booth Street the offender and others were sighted by police and followed to Glebe.

I should note that in respect of this particular offence the Crown accepts that the offender was not the one armed with the sledgehammer.

Having proceeded from the bank at Leichhardt to Glebe the BMW vehicle drove into Junction Street at Glebe against the traffic as it was a one way street.  At that time a woman, Zara Bollard, was driving her Nissan Pulsar sedan in Junction Street and was blocked by the offender and others in their stolen vehicle.  A male with the offender alighted from the BMW and approached the stationary vehicle of Ms Bolland, and was then blocked.  The male went to the front passenger door of the vehicle and tried the handle.  He said to Ms Bollard ‘Open the fucking door bitch’.  He produced a knife to her and commenced to elbow the front passenger window of Ms Bollard’s vehicle until it smashed.

As the window smashed Ms Bolland managed to get out of her Nissan Pulsar.  At this point in time the police turned into Junction Street with lights and sirens activated.  The offender and others drove into the driver’s door of Ms Bolland’s vehicle narrowly missing her.  This caused the front wheels of the BMW to bend at a 180 degree angle making it undriveable.

The offenders and others got out of the BMW and ran away from the police in different directions in Junction Street.  The offender ran into a construction site… In relation to the last offence I should not so that it is clear on the facts that it is not alleged that the offender was the one who approached Ms Bolland’s vehicle.  The allegation is one of joint enterprise.

The mere outlining of the facts reveals the very serious nature of the offending behaviour which covers a period of approximately fifteen months.” [Emphasis added]

12.     When imposing the sentence, the Judge noted the serious nature of the offending course of behaviour of the applicant over a period of approximately fifteen months.  The Judge noted that the offender pleaded guilty and that this was a basis for the finding that the standard non-parole period did not apply.  His Honour noted that three of the offences were committed while the offender was on bail awaiting sentence for other offences and that this was a serious aggravating factor.  He noted that the offence of robbery in company at the Commonwealth Bank was a particularly serious offence, and emphasised that the offender had an extensive criminal record that preceded the commission of the first offence.

13.     It was also noted that departmental records indicated that the applicant received regular visits from family members and that his mother described the offender as being basically a good person but added that he could easily be influenced by his negative peers.

14.     The applicant had been in several short term relationships over the years but has no children.  His only strong ties to Australia from a family viewpoint are his mother and sister.  He also has a brother in Australia with whom he does not appear to have had much contact.

15.     His Honour found that there were good reasons to find special circumstances and proceeded to sentences with a total non-parole period of eight years and three months, so that he would be eligible for release to parole on 16 March 2012. 

16.     On appeal to the Court of Criminal Appeal, the overall non-parole period of seven and a half years was substituted which meant, at the time of that Courts decision on 27 February 2007, a balance term of three years and nine months.

REASONING ON APPLICATION

17.     The first and primary consideration is the protection of the Australian community.  Examples of serious categories of offences include robbery, causing grievous bodily harm, reckless injury, assault and aggravated assault or ancillary offences.  In particular, the sentence imposed for a crime is considered to be indicative of the seriousness of the offenders conduct against the community.

18.     Also of importance is the risk that the conduct might be repeated (recidivism) and, on this aspect, it is necessary to look at the recent history of convictions; evidence of the extent of rehabilitation; and evidence of any breach of judicial orders including parole, bail bonds and suspended sentences, or the nature of any conditions imposed.

19.     Although the applicant has been “involved” in crimes involving violence, or the threat of violence, there is no evidence that he personally used any weapon or carried out any violent act.  He was present at, and to that extent “involved” in the crimes, and he took no steps to prevent those crimes being committed.  However, there is no evidence that he has ever injured a person in the course of the crimes in question.  To the extent that he may have been involved in the criminal activities shown in his record, there is no indication that he has caused grievous bodily harm or reckless injury but it was his presence at the scene of actions which would no doubt have given rise to fear in the victim and would amount to assault.  There is no doubt that these offences are serious, or that he has received, particularly in relation to the last series of crimes, substantial and lengthy sentences.

20.     His criminal record shows an ongoing and continuous involvement. 

21.     However, since his most recent sentencing, eight years have elapsed.  Having seen him in the witness box and considered his record, I am satisfied that he has made some substantial efforts to improve himself and to obtain training.  He has completed a series of prevention and rehabilitation training programs. 

22.     In a detailed “Psychological Assessment” on 12 August 2011 by Corrective Services the provisional psychologist and the therapeutic manager of the South Coast Correctional Centre concluded that risk assessment showed that the applicant was at “moderate” risk of reoffending.  The report states that although the applicant’s cognitive function is very low, he does not qualify for an ageing and disability home care support, and that if he were released on parole he should receive a close supervision in the community to monitor the risk factors, and that he may require additional support in engaging in employment and education.  If he were to have his parole refused it was recommended by the authors of the report that he could continue to improve his employment prospects by further training and education.

23.     Although the applicant’s full sentence was not due to expire until 16 March 2015, after reviewing all the relevant reports, the Parole Authority decided to release the applicant early on parole on 6 October 2011.  There is evidence that during the lengthy period of his recent incarceration there have been a substantial number of incidents involving refusals to cooperate and various instances of aggression, however no reports of physical injury or violence. 

24.     There is also a brief pre-release home visit assessment form completed by the Community Offenders Services for the South Coast Correctional Centre on 15 August 2011 which refers to the applicant’s risk rating as being “high” but there is no reasoning or background material or other information to substantiate this conclusion.

25.     The applicant and his mother gave evidence that he has made arrangements with his sister to live with her in Griffith if released and enquiries have been made for employment in that area, where there appears to be a number of opportunities.  The evidence of his mother confirms that he is on good terms with her and with his sister who lives in Griffith.  The applicant also gave evidence that he is on good terms with his sister and has had telephone contact with her for the past year. There is evidence that he has a brother residing in Fiji who may be prepared to assist him if he returned but the indications by the applicant and his mother were that links with Fiji were tenuous.  There were indications that he would not receive any practical assistance or help if returned to Fiji.

26. The Tribunal notes that under s135 of the Crimes (Administration of Sentences) Act 1999 (NSW), (“the Sentences Act”), the Parole Authority must be satisfied on the balance of probabilities that the release of the offender is appropriate in the public interest. The Parole Authority must have regard to the need to protect the safety of the community, and must also consider guidelines issued under the Sentences Act. These include a consideration of whether a definite decision has been made by the Department of Immigration and whether the offender would otherwise be released to parole in Australia if not subject to deportation. Having given regard to all these matters the Parole Authority decided to release the applicant on parole. This is a significant consideration in relation to the protection of the Australian community.

27.     Two reports of the Probation and Parole Service of 14 September 2011 recommend release on parole notwithstanding an earlier recommendation three months before that parole not be granted.  This material was before the Parole Authority when it made its decision on 28 September 2011, together with the psychiatric reports which assigned a moderate risk in respect of the applicant.  Some considerable weight must be given by the Tribunal to the view of the Parole Authority which led to the early release of the applicant in assessing whether he is likely to be a significant danger to the Australian community.  Although the applicant did not produce any evidence of an expert nature, the Tribunal considers some reliance can be placed on the views of those advising the Parole Authority and on the fact that the Parole Authority decided to release the applicant.  The release was, of course, conditional but nevertheless provides a significant degree of assistance in deciding whether the applicant is likely to present a significant threat to the Australian community.  The Parole Authority referred to the fact that he intended to live with his sister in Griffith and also referred to his borderline comprehension in relation to some of the tests which he had undergone by way of assessment.

28.     It should be noted that the reports which were before the Parole Authority in favour of granting parole were dated two weeks before its decision.  Accordingly, the reports were about 14 days before the decision of the Ministerial delegate to cancel the visa.  It does not appear that the decision to grant parole to him from 6 October 2011 was based on the premise that the applicant would be delivered into immigration detention or that his visa would be cancelled and he would be deported.  In any event the Parole Authority must be taken to have appreciated that the applicant could appeal any decision of the Minister with the consequence that he would be released into the community.

29.     The fact is that the Applicant has been incarcerated for many years; he is drug and alcohol free; and he has undertaken successfully a number of training programs.  The Tribunal is satisfied that the Applicant does not present any significant risk to the Australian community in the nature of violence.    His conduct appears to have arisen largely because of problems with alcohol and drugs and the peer group with whom he was associated many years ago.  If he were to relocate to Griffith, as appears likely, he will have the support of family and will be away from the negative influences which previously affected him.  On the evidence I am not persuaded that there is significant risk to the welfare or safety of the Australian community if the visa is not cancelled.

30.     The Tribunal considers that the long recent term of incarceration has had a salutary effect on the applicant and that this will serve to further reduce any risk of recidivism.

31.     In relation to the other primary factors it is clear that the Applicant was a minor when he began living in Australia and was not close to attaining adulthood at that time.  He has spent his formative years in Australia and has established substantial ties to the Australian culture and community.  These matters are in his favour.

32.     He has been ordinarily resident in Australia for over 22 years.  He has no significant ties to Fiji.  Again this is in his favour but in weighing this consideration the Tribunal bears in mind that the applicant has spent a considerable part of that period in incarceration.

33.     In relation to international obligations, this factor is not relevant in the present case.  There are no children.  He is not a refugee.

34.     In relation to the non-primary considerations the Tribunal considers on balance that these are in favour of the case advanced by the applicant.  He clearly has a strong relationship with his mother and with his sister.  He has no current relationship with a partner or children which would constitute a bond to Australia.  Having seen his mother in the witness box, I am satisfied that she would experience considerable hardship if he is removed.  It appears that she does on occasion travel to Fiji. 

35.     The applicant is a young and healthy man, thus his age and health are not of any significant weight.  There is some evidence that he has learning difficulties and that in some matters he is below normal standard in his comprehension.  However, he has successfully undertaken a number of improvement courses, as evidenced by certificates produced at the hearing.

36.     There is no evidence that he has ever returned to Fiji over the last 22 years.  Although he speaks some Fijian, his contacts with that country are minimal and the likelihood is that he would have significant problems of both material and cultural readjustment if returned to Fiji which may, in the absence of substantial support, result in negative conduct.  As noted above, his education is not advanced.  Whilst there is some evidence that he suffers a mild intellectual disability, he appears to be reasonably articulate.

37.     The evidence indicates that he had not previously been warned under s 501 of the Act.

38.     The Tribunal considers that the period of residence in Australia of 23 years and the difficulties of adjustment in going back to Fiji and being separated from his mother and sister, who appear to provide the only significant support for him, are matters which should be given very substantial weight in this matter.

39.     In summary, the applicant called no psychiatric evidence to support his case.  On the documentary psychiatric evidence before the Parole Authority there appears to be a moderate risk of him reoffending.  However, the author of the psychiatric report did not have the benefit of all the evidence before the Tribunal and, looking at the evidence as a whole and especially his relationship with his mother and sister, and to the fact that he appears to have learned from his experience in prison and will be living in the Griffith area, the Tribunal is not persuaded that he will present a significant danger to the Australian community.  After serving his last long sentence he is fully aware that if he engages in criminal conduct in the future he will be again condemned to incarceration and this will act as a substantial deterrent to such conduct.

40.     In balancing all the foregoing considerations the Tribunal is of the view that whilst giving the full weight to the criminal history of the applicant and his conduct in prison, the visa cancellation of the applicant should be set aside.  The correct and preferable decision is therefore that the application for review be allowed.  The decision of the Minister is therefore set aside with the consequence that the applicant’s visa is not cancelled.

I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon. Brian Tamberlin QC, Deputy President.

Signed: ...........[sgd]......................
           K Lynch, Associate.

Date of Hearing  5 December 2011
Date of Decision                   16 December 2011
Representative for the Applicant                   Mr Baudromo (self)                  
Representative for the Respondent               Australian Government Solicitor