Bernard and Minister for Immigration and Border Protection (Migration)
[2017] AATA 597
•3 May 2017
Bernard and Minister for Immigration and Border Protection (Migration) [2017] AATA 597 (3 May 2017)
Division: GENERAL DIVISION
File Number: 2016/2913
Re:Patrick Ian Bernard
APPLICANT
Minister for Immigration and Border ProtectionAnd
RESPONDENT
DECISION
Tribunal:Egon Fice, Senior Member
Date:3 May 2017
Place:Melbourne
The Tribunal affirms the decision under review to not revoke the cancellation of Mr Bernard's Class BN Subclass 136 Skilled-Independent (Permanent) visa under s. 501(3A) of the Migration Act 1958 (Cth).
.....................................[sgd]...................................
Senior Member
IMMIGRATION AND BORDER PROTECTION – mandatory visa cancellation – character grounds – substantial criminal record – applicant convicted of various criminal offences involving obtaining property by deception – best interests of minor children in Australia – where serious risk to Australian community if applicant re-offended – where Australian community would expect application to be refused – decision affirmed
Legislation
Migration Act 1958 (Cth) ss. 501, 501CASecondary Materials
Ministerial Declaration No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Scott Morrison MP, Minister for Immigration and Border Protection)
REASONS FOR DECISION
Egon Fice, Senior Member
3 May 2017
Mr Patrick Bernard is a citizen of the Republic of Mauritius (Mauritius). He is now 39 years of age. On 24 September 2008 Mr Bernard was granted a Class BN Subclass 136 Skilled-Independent (Permanent) visa (Permanent Visa). He arrived in Australia on
8 January 2009. Mr Bernard had previously been to Australia for a brief period (3 months) in 1997.
In a letter dated 4 September 2015 a Case Officer from the Department of Immigration and Border Protection informed Mr Bernard that his Permanent Visa had been cancelled under s. 501(3A) of the Migration Act 1958 (the Migration Act) because he did not pass the character test as described in s. 501(6). Section 501(3A) provides:
The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(iii) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Relevantly, s. 501(6) of the Migration Act provides:
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
(b)…
Section 501(7) sets out the circumstances in which a person is regarded as having a substantial criminal record. Relevantly, it provides:
For the purposes of the character test, a person has a substantial criminal record if:
(c)…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, with a total of those terms of 12 months or more; or
(e)…
A person whose visa has been cancelled may make representations to the Minister under s. 501CA(4) of the Migration Act seeking to have the visa cancellation decision revoked. Relevantly, s. 501CA provides:
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving a sentence of imprisonment) to cancel a visa that has been granted to a person.
…
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
…
On 9 September 2015 Mr Bernard lodged a request with the Department seeking revocation of his mandatory visa cancellation under s. 501(3A) of the Migration Act.
In a letter dated 10 May 2016 the Department notified Mr Bernard that, having considered the representations he made to the Minister, a delegate of the Minister decided not to revoke the original decision to cancel his visa. The delegate of the Minister made the decision on 29 April 2016 stating:
I am not satisfied that Mr BERNARD passes the character test (as defined by section 501). Nor am I satisfied that there is another reason why the original decision should be revoked. Accordingly, I have decided not to revoke the decision to cancel Mr BERNARD’s Class BN Subclass 136 Skilled – Independent (permanent) visa.
On 1 June 2016 Mr Bernard lodged an application in the Tribunal seeking a review of the delegate’s decision. That application was lodged pursuant to s. 500(1)(ba) of the Migration Act.
In determining whether the decision made by a delegate of the Minister not to revoke Mr Bernard’s visa cancellation was the preferable decision, I am required to follow the directions made by the Minister pursuant to s. 499 of the Migration Act. Relevantly, it provides:
(1) the Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
…
(2A) A person or body must comply with the direction under subsection (1).
The current direction is Direction No. 65 made by Mr Scott Morrison, then the Minister for Immigration and Border Protection on 22 December 2014 (the Ministerial Direction).
MR BERNARD’S CRIMINAL OFFENCES
Mr Bernard’s criminal offending commenced shortly after his arrival in Australia. He has acquired multiple convictions between 2011 and 2015, all of them relating to obtaining property by deception. His offending was perpetrated by stealing the identity of innocent persons through the Internet and using that personal information to acquire property and financial advantage. The following is a summary of his offending.
Court Date Offence Court Result 19 September 2011 Obtain financial advantage by deception Convicted. Imprisonment for 8 months concurrent wholly suspended for 18 months.
Pay compensation $7957
Obtain property by deception (2 charges) Convicted. Imprisonment for 8 months concurrent wholly suspended.
Pay compensation $260
Obtain property by deception Convicted. Aggregate 8 months imprisonment concurrent wholly suspended.
Pay compensation $211.
Obtain property by deception (4 charges) Convicted on all charges. Imprisonment for 8 months concurrent wholly suspended. Intention to commit serious offence – unauthorised access, modification to restricted data, dishonestly obtain/deal in personal financial information using telecommunications network with intent to commit serious offence Convicted on all charges. 250 hours community service over 12 months. Unauthorised access to, or modification of, restricted data Convicted. Fined $500. 19 September 2012 Obtain property by deception. Drive whilst authorization suspended (2 charges). Attempt to obtain property by deception (2 charges) Convicted on all charges. Community Correction Order for six months. 10 April 2014 Obtain property by deception. Convicted. Aggregate 18 months imprisonment. Pay compensation $98,114 Obtain property by deception Convicted. Aggregate 18 months imprisonment, 12 months to be served concurrently. Pay compensation $4204.50 Obtain property by deception Convicted. Aggregate 18 months imprisonment, 12 months to be served concurrently. Obtain property by deception Convicted. Aggregate 18 months imprisonment, 12 months to be served concurrently. Obtain property by deception (19 charges)
Attempt to commit indictable offence (2 charges)
Attempt to obtain property by deception. Knowingly cause unauthorised computer function – Internet (13 charges)
False statement – destroy/damage property. Knowingly intend to cause unauthorised access – data (2 charges)
Intentionally and knowingly cause unauthorised computer function, cause unauthorised impairment to electronic communication – computer (9 charges)
Use identification information – Commit/facilitate indictable offence (3 charges)
Convicted on each charge. Aggregate imprisonment for 18 months, 12 months to be served concurrently. Obtain property by deception Convicted. Aggregate imprisonment for 18 months. Breach of suspended sentence imposed on 19 September 2012 Breach proven. Suspended sentence reinstated, aggregate 8 months imprisonment Fail to comply with order or sentence Convicted. Imprisonment for 6 months Cause unauthorised access to restricted data, unauthorised interference with computer, dishonestly take/conceal my all receptacle, dishonestly obtain delivery of articles Convicted on all charges. Aggregate 6 months imprisonment. Breach of Community Service Order imposed on 19 September 2012 Convicted. Aggregate imprisonment for 6 months. Breach of Community Correction Order imposed on 19 September 2012 Breach proven. Community Correction Order cancelled. Aggregate imprisonment for 6 months. Breach of Community Correction Order imposed on 19 September 2012 Breach proven. Community Correction Order cancelled. Aggregate imprisonment for 3 months. Contravene Community Correction Order, failed to comply with sent/order made. Each charge proven without conviction. No penalty imposed. 20 April 2015 Obtain property by deception. Convicted. Imprisonment for 6 months concurrent. Pay compensation $4532. 5 August 2015 Obtain property by deception. Convicted. Imprisonment for 1 month concurrent. Pay compensation $1843. THE MINISTERIAL DIRECTION
The preamble to the Ministerial Direction states that it contains general guidance for decision-makers and the principles that provide a framework within which decision-maker should approach their task deciding whether to exercise discretion to cancel or refuse a non-citizen’s visa under section 501 or to revoke a mandatory cancellation under section 501CA of the Migration Act.
Part C of the Ministerial Direction identifies the considerations relevant to former visa holders in determining whether to exercise discretion to revoke the mandatory cancellation of a non-citizen’s visa.
Objectives
The objective of the Migration Act is stated to be to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. Relevantly, paragraph 6.1(3) of the Ministerial Direction provides:
Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against the law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Paragraph 6.2 of the Ministerial Direction provides general guidance. Of significance is the following:
(1) The Government is committed to protecting the Australian community from harm as result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
Paragraph 6.3 sets out the principles which inform the decision making process under the Ministerial Direction. The following are significant in this case:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
…
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
…
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Part C, which applies to Mr Bernard, consists of primary considerations and other considerations. Paragraph 8 of the Ministerial Direction provides guidance in respect of taking the relevant considerations into account. The relevant provisions are as follows:
(1)Decision-makers must take into account primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancelled the visa of a visa holder, or revoke the mandatory cancellation of a visa.…
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
PRIMARY CONSIDERATIONS
The Ministerial Direction at Part C states that in deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
(a)protection of the Australian community from criminal or other serious conduct;
(b)the best interests of minor children in Australia; and
(c)expectations of the Australian community.
Protection of the Australian community
Bearing in mind the overall duty of the Australian Government to protect the Australian community, I am required to give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Mr Bernard did not dispute the fact that he did not meet the character test as described in s. 501(7) of the Migration Act. On 10 April 2014 he was sentenced to an aggregate of 18 months imprisonment. Furthermore, on that occasion, he was convicted on no less than 48 offences concerning dishonesty as well as Federal offences concerning communications via the Internet. 12 months of that sentence was to be served concurrently. A non-parole period of 18 months was also imposed. Effectively, the total stated term was two years and six months with a Federal term of six months. Given that the length of sentence imposed by the courts for crimes of which a non-citizen has been convicted is indicative of the seriousness of the offending, Mr Bernard’s offending must be regarded as serious.
Furthermore, as Ms A Briffa, a lawyer for the Australian Government Solicitor who appeared on behalf of the Minister, submitted, Mr Bernard’s criminal record discloses a trend of increasing seriousness in offending between 2010 and 2015. The offences Mr Bernard committed in 2010 and for which he was found guilty in 2011, resulted in a sentence of eight months imprisonment, wholly suspended. Furthermore, the orders made by the Court regarding the payment of compensation amounted to $15,477. Despite that sentence, 12 months later he was again convicted of obtaining property by deception and an attempt to obtain property by deception. For those offences, he received a further Community Correction Order for six months. Mr Bernard found himself back in court in April 2014 charged with some 48 counts of dishonesty. The Court found he was in breach of his suspended sentence which was reinstated and also in breach of the Community Correction Order. In other words, his prior convictions served as no deterrent to Mr Bernard continuing to offend, and in fact he committed offences of even greater seriousness in terms of the monetary amounts which he obtained by deception.
As Mr Bernard stated during the hearing, he kept committing the same crimes, like a cycle. He further stated that he was unaware that his visa was at risk of being cancelled if he were to continue committing the same offences.
Although he also told the Tribunal that he accept[ed] everything that he did, Mr Bernard appears to have been oblivious to the anxiety and distress which his victims plainly experienced by his deceitful conduct. He has expressed no concern for them at the time of his offending and reoffending. However, following the cancellation of his visa, Mr Bernard stated in a Statutory Declaration that being sentenced to 18 months non-parole term of imprisonment was enough to make him realise the damage he caused to his victims. That statement cannot be relied upon. That is because following his convictions in September 2011, he was sentenced to 18 months imprisonment although that sentence was wholly suspended. Mr Bernard must have known then that if he continued to offend, his suspended sentence would be reinstated. Clearly, the plight of his victims was far from his mind at that time. Overall, Mr Bernard was ordered to make payment of some $115,000 by way of compensation to his victims. Mr Bernard said in cross-examination that he had repaid $15,000 in 2011 and that the remainder was being paid by monthly instalments. However, given the serious convictions which he now has recorded against him, it must be seriously doubted that he will be able to readily find work should he remain in Australia and be able to repay the compensation ordered by the Court. According to Mr Bernard, he is prohibited from using the internet at least until June 2019.
In his handwritten statement of facts issues and contentions, Mr Bernard attempted to explain the financial difficulties that he encountered even though he and his wife were working at that time. It also appears that he was receiving social security payments at some point. He then said he began gambling and losing money. It also appears he became addicted to drugs, although it is not clear how and when this occurred. Despite the police having caught up with him when he was accessing other people’s emails and obtaining their credit card details, Mr Bernard said that his debt remained. Because he had to repay the monies he had taken from innocent victims, he continued with his criminal activities. This was despite the fact that he had been charged and convicted by the Magistrates’ Court.
The problem I foresee is that Mr Bernard still has a significant debt to repay and no means by which he can repay it. During the hearing, Mr Bernard gave oral evidence that if he were allowed to remain in Australia, he would like to educate others about online security, namely, how to secure a router and set up a username and password. Presumably, Mr Bernard would hope to derive some form of income from the establishment of such a program. Furthermore, he holds these hopes despite the fact that, as I have noted above, he is prohibited from using the internet at least until June 2019. However, Mr Bernard was adamant that he would not need to access the internet to conduct the program and that he could educate others through the distribution of hardcopy resources. I find this proposition difficult to accept, given the fact that a significant proportion of information about internet security, being a relatively recent field of knowledge, exists in the online domain, as well as the means in which such information is transmitted and conveyed to others. Therefore, I find that despite Mr Bernard’s submission that in a way, prison helped him to get everything out, the risk of Mr Bernard returning to illegal activities remains real should he remain in Australia.
Furthermore, while it seems that he is attempting to rid himself of his drug addiction and is on a methadone program while in detention, the financial pressures he will experience upon release will undoubtedly be difficult for him. Should Mr Bernard remain in Australia, the Australian community will undoubtedly be at risk. That is despite the fact that upon completing a program described as Exploring Change Program on 13 November 2014, Mr Bernard was accepted into the 24-hour Drug and Alcohol program which commenced on 3 December 2014, finishing on 31 December 2014. The AOD Clinician, who also engaged in individual counselling with Mr Bernard, wrote a brief letter stating that the topics covered in the program included emotions, communication, relationships, anger management, coping strategies, and relapse prevention in relation to drug and alcohol use. Those programs do not appear to have addressed his gambling problem or provided him with assistance in obtaining future employment.
Best interests of minor children
Mr Bernard has a daughter who is 10 or 11 years of age. As is stated in paragraph 13.2 of the Ministerial Direction, I must make a determination about whether revocation of the visa cancellation decision is in the best interests of Mr Bernard’s daughter. Paragraph 13.2 (4) sets out the factors I must consider if relevant. They are:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
In a handwritten statement provided to the Department in support of his application for revocation of his visa cancellation, Mr Bernard said that his wife had been diagnosed with a medical issue preventing her from looking after his daughter. Therefore, according to Mr Bernard, he will be his daughter’s primary carer and will have to be present for all of her needs. However, I had no evidence that Mr Bernard’s wife was suffering from a medical condition. That is despite having in evidence a statement made by Mr Bernard’s wife on 28 September 2015. Mr Bernard’s wife said that Mr Bernard’s daughter found having her father away for some months a difficult experience. Mr Bernard’s wife said it was very challenging for her to explain to Mr Bernard’s daughter the reality of the situation. Mr Bernard’s daughter apparently asked her mother not to celebrate her birthday and Christmas in 2014 but rather to wait until her father returned. Mr Bernard’s wife went on to say:
Her dad remains her ‘hero’ no matter what and I must admit that despite the rest, Patrick has always been a loving dad. Having Patrick taken away from her indefinitely will seriously affect our lives, our daughter’s, Patrick’s and mine.
Mr Bernard’s daughter attended the hearing and I allowed her to give evidence. She said that she was required to stay with her aunty and uncle at their house 3 to 4 times per week. She was happy when her father came back to stay.
Mr Elvis Bernard, Mr Bernard’s brother, provided the statement dated 7 October 2015, which was taken into evidence. He said that Mr Bernard was the main carer for his daughter because her mother, a nurse, worked long and odd hours. The daughter had to change school and to sleep over at his house 3 to 5 days a week because her mother was on night shift. Mr Elvis Bernard also attended the hearing and gave oral evidence. He said his wife became responsible for taking the daughter to school and he described the daughter as going into silent mode. He described Mr Bernard as having a close relationship with his daughter. When asked in cross-examination whether the daughter had any time away from school since her father had been in prison, Mr Elvis Bernard said she had not but that she was a burden on their family.
I had some concerns about the fact that Mr Bernard’s wife was not present at the hearing. There was some evidence that the relationship may have been strained. In a consultation with the counsellor from International Health and Medical Services (IHMS) on 3 December 2015 Mr Bernard is reported as having said:
Partner had become abusive (mostly verbal abuse and derogative) and to the point where he seek drugs to forget his humiliation.
In a later consultation on 2 March 2016 it was reported:
Client has initially requested assistance on his low mood and difficult relationship with his wife.…
Resume my life with daughter and buy small apartment.
Although Mr Bernard was adamant that he had not separated from his wife, the possibility of that occurring, even if Mr Bernard were allowed to remain in Australia is, on the evidence before me, significantly high. In an IHMS report dated 21 July 2016 Mr Bernard expressed he was suffering from anxiety and he apparently referred to recent stressors including separating from partner and also Court matters. He also said during the hearing that since being in immigration detention, he had suffered from a few panic attacks and general anxiety issues.
He plainly has not been a role model for his daughter to date. Mr Bernard gave evidence that he and his daughter would go to the shops and play around together. He stated that he currently contacts his daughter 2 to 3 times per day. Although Mr Bernard told the Tribunal during the hearing that he had in the past picked his daughter up from school, I had no evidence before me that Mr Bernard contributed in any meaningful way to his daughter’s schooling or social development. That leaves open the question of whether Mr Bernard is likely to play a positive parental role in the future.
Expectations of the Australian community
Paragraph 13.3 (1) deals with the expectations of the Australian community. It states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate not to revoke the mandatory visa cancellation of such person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
As Ms Briffa stated in the Minister’s Statement of Issues, Facts and Contentions, Mr Bernard has consistently disregarded the Australian laws and Australian judicial orders. He began offending shortly after arriving in Australia, being first convicted in 2011. Altogether, he has faced the Magistrates Court in September 2011, September 2012, April 2014, April 2015 and August 2015. On each occasion convictions were recorded on multiple charges except for April and August 2015, which concerned single charges.
Mr Bernard has caused significant financial loss with, undoubtedly, the accompanying distress and anxiety, to innocent members of the Australian community. Although he has been ordered to repay those losses, it is difficult to see any meaningful repayment in Mr Bernard’s circumstances if he were to remain in Australia. Mr Bernard’s risk of reoffending is real and it is difficult not to conclude that the Australian community would expect Mr Bernard’s visa to be cancelled.
OTHER CONSIDERATIONS
in deciding whether to revoke the mandatory cancellation of a visa, the following considerations must be taken into account where relevant:
(a)strength, nature and duration of ties to Australia;
(b)impact on victims; and
(c)extent of impediments (including health) if removed from Australia.
Strength, nature and duration of ties to Australia
Mr Bernard has now resided in Australia for a little over eight years. In fact, given that he was imprisoned on 10 April 2014 and his visa cancelled on 4 September 2015 when he was taken into immigration detention, Mr Bernard has effectively resided in the Australian community for some five years and two months.
Mr Bernard was about 31 years and three months of age when he arrived in Australia in January 2009. He began his offending in about August/September 2010. He has made a limited contribution to the Australian community, being employed between July 2009 and September 2012. That work was as a chef manager, steward, factory-hand and chef.
In addition to his wife and daughter, Mr Bernard has an older brother resident in Australia. Mr Bernard has also listed a number of relatives who reside in Australia, there being some 13 uncle and aunts, 4 nieces and nephews and some 19 cousins. Although Mr Bernard’s brother, Mr Elvis Bernard, attended the hearing and gave oral evidence in support of his brother’s application, the strength of ties between the families in Australia was not entirely clear. The evidence was that Mr Elvis Bernard’s family has taken on significant responsibility for Mr Bernard’s daughter. Mr Elvis Bernard accepted that having to look after his brother’s daughter had become a burden on his family. I did not have evidence from any other family members in Australia and therefore am unable to comment on the strength of ties Mr Bernard has with those relatives.
As I have already said, of particular concern to me was the fact that Mr Bernard’s wife did not make herself available to give oral evidence at the hearing. Even if she had pressures on her time on the day on which the hearing was listed, I expected a written statement from her. However, other than the very brief statement she made in September 2015, I had nothing before me to determine the current status of the relationship between her and Mr Bernard. Nevertheless, in a written statement Mr Bernard provided to the Tribunal on 12 August 2016, he said that when the family experienced financial problems and he started to gamble heavily, he did so with his wife’s salary. It is reasonable therefore to infer that those activities would have placed a serious strain on their relationship. His gambling, coupled with statements he made to counsellors while incarcerated, leads to the reasonable inference that there are some difficulties with that relationship.
Mr Bernard claimed that he was primarily his daughter’s carer, and that his responsibility was likely to increase because his wife was suffering from some medical issue which he did not name. In his statement of facts lodged with the Tribunal on 12 August 2016, Mr Bernard also claimed that he was the carer of his daughter. However, given that Mr Bernard was committed to prison on 10 April 2014, and his sentence included a non-parole period fixed at 18 months, his release on parole occurred on 19 October 2015. It is likely that his release was followed immediately by his incarceration at Maribyrnong immigration detention centre which occurred on 19 October 2015. Therefore, as at the date of this decision, Mr Bernard has not been a carer of his daughter for the past three years. It follows that, however his relationship with his daughter is described, the evidence of him being the principal carer for his daughter is simply non-existent. Certainly that is the case over the last three years. Furthermore, without evidence from Mr Bernard’s wife regarding their domestic and family relationship, it is not possible to accept Mr Bernard’s evidence about this. Nevertheless, I accept his evidence that he has a good relationship with his daughter. That was confirmed by his daughter at the hearing.
Accordingly, although I find that Mr Bernard’s relationship with his daughter is good and ideally, that relationship has the potential to be significant in his daughter’s social development, it is nevertheless subject to considerable doubt. During the hearing Mr Bernard gave oral evidence that his daughter had experienced growing up in a rather unstable environment thus far. He submitted that if he were to be allowed to remain in Australia, he would provide a source of stability for his daughter’s life and could provide good care for her. However, this is dependent upon Mr Bernard overcoming his addiction to drugs and gambling and presenting as a stable role model for his daughter. If Mr Bernard were unable to overcome the serious social problems which led to his convictions, those problems may well have a detrimental effect on his daughter’s development. As the evidence before me presently stands, it does not establish a compelling or even strong reason why Mr Bernard’s visa cancellation should be revoked.
Mr Bernard’s wife appears, at least at this stage, to be the strongest tie he has with Australia. However, I must express some doubt regarding the strength of that relationship as there is evidence that it is under considerable strain. The relationship with his brother, Mr Elvis Bernard, appears to have remained reasonably strong despite his criminal offending. While Mr Elvis Bernard expressed that his involvement with Mr Bernard’s daughter exerted a burden on his family, and that the burden would be removed were Mr Bernard allowed to remain in Australia, that is not by itself a strong reason for allowing Mr Bernard to remain in Australia. Other than the care of Mr Bernard’s daughter and his health problems, Mr Elvis Bernard did not give any evidence which would support a reason for Mr Bernard remaining in Australia.
Although Mr Bernard referred to numerous other relatives who were resident in Australia, I had no evidence from any of them which might support Mr Bernard’s application.
Paragraph 14.2 of the Ministerial Direction provides that I must have regard to the length of time Mr Bernard has resided in Australia, noting that less weight should be given where the non-citizen began offending soon after arriving in Australia. Relatively speaking, Mr Bernard’s time in Australia prior to him commencing offending was short, being about 12 months. His positive contribution to the Australian community was relatively short and intermittent, having worked as a chef and factory-hand until 2012. It does not add significant weight to his application to remain in Australia.
Extent of impediments if removed from Australia
There are a number of considerations which may be relevant in Mr Bernard’s case. They include his age and health; and whether social, medical and/or economic support is available to Mr Bernard in Mauritius.
Mr Bernard has a number of significant health problems. In fact his first visit to Australia in 1997 was for the purpose of having the surgery to repair coarctation of his aorta (localised malformation resulting in a narrowing of the aorta). Mr Bernard has also been diagnosed with hypertension, hepatitis C, anxiety and depression (for which he was prescribed diazepam and a number of opioids to which he developed an addiction), haemochromatosis (liver enlargement) and apparently remains on methadone (on a 100mg dosage) which is being used to treat his dependence on opioids. In a statutory declaration made on 29 June 2016 Mr Bernard also said that he had recently been diagnosed with type II diabetes. However, there was no medical evidence put before me regarding the diagnosis or the effect it would have on Mr Bernard.
Mr Bernard expressed concern that he would be unable to obtain adequate treatment if returned to Mauritius and, even if he were able to obtain adequate treatment, it would be costly being at a private facility.
Attached to the Minister’s statement of issues, facts and contentions lodged with the Tribunal were a number of documents dealing with health care in Mauritius. Ms Briffa, who signed off on that document, submitted that Mr Bernard had not provided any medical evidence to support his claims that the conditions he suffers from could not be treated in Mauritius. An article published in the International Travel & Help Insurance Journal (ITIJ), in April 2011, states the following, at page 2:
Healthcare in Mauritius is viewed as a human rights issue. As a consequence, public health care services are free and fully tax funded.… However, in World Health Organisation (WHO) compiled report on the overall efficiency of health service provision, Mauritius ranked just 84th of the 191 countries rated – behind some countries with the per capita GDP of less than half its own.
…
A major weakness of the Mauritian health system lies in its primary care provision, generally the first point of patient entry into the system. Most GPs, outside the hospitals, are in private practice with a vested interest in seeing their patients, who were generally poorly informed, stay within the private system. All GPs working outside the hospitals are in private practice and charge for their services.
…
The public health system is open to all citizens and funded entirely from the government’s tax revenues, with no compulsory health insurance scheme being in operation at present.
I also had in evidence a 2009 World Health Organisation report. That report describes health-care delivery in the public sector at three levels. Primary health care services are delivered through a network of Community Health Centres and Area Health Centres. It was stated that the entire population had reasonable access to the first point of contact with the help system within a radius of 3 miles. The second level of health-care services comprised two district hospitals and five regional hospitals providing primary inpatient and outpatient medical care to their respective catchment populations as well as emergency services and the supervision of Area Health Centres and Community Health Centres. The third level, being the highest referral level, comprised four specialised hospitals. It consisted of a Cardiac Centre, offering multi-disciplinary specialised services in cardiac surgery and invasive cardiology. Neurology and renal transplantation, laser and laparoscopic treatment are offered as part of the National high-tech programs.
In terms of responsiveness, the health system in Mauritius was rated among the highest achieving group of countries, ranking 56, with an index of 5.57.
An article published in The Guardian on 8 March 2011 suggested that the United States of America ought to learn a thing or two from Mauritius, where all citizens enjoy high standards of healthcare and education. The author stated, at page 1:
Suppose someone were to describe a small country that provided free education through university for all of its citizens, transport for schoolchildren and free health care – including heart surgery – for all. You might suspect that such countries either phenomenally rich or on the fast track to fiscal crisis.
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But Mauritius, a small island nation of the east coast of Africa, is neither particularly rich nor on its way to budgetary ruin. Nonetheless, it has spent the last decade successfully building a diverse economy, a democratic political system and a strong social safety net. Many countries, not least the US, could learn from its experience.
Although Mr Bernard was concerned that appropriate medical support would not be available in Mauritius, the objective evidence before me suggests the contrary. The public health system appears to be reasonably well developed and free access is provided to all Mauritians.
Mr Bernard claimed that he no longer had ties to Mauritius, having sold all of his and his wife’s assets before they came to Australia. However, he has a brother in Mauritius. His brother is married with two children and, apparently, his mother resides with that family. Nevertheless, Mr Bernard submitted that it was unlikely that he would be permitted to reside with his brother and family in Mauritius. He also told the Tribunal that it would not be possible to live in his brother’s house, as he also has another brother living there with his own family. While I understand why Mr Bernard would claim that to be the case, I had no evidence which would support that claim. Logically, it would be fair to accept that at least initially, Mr Bernard would gain some support from his family in Mauritius. It is likely it would, at least, enable him to re-establish his life in that country.
CONCLUSION
Given the serious nature of Mr Bernard’s offending, and the fact that despite being convicted of numerous offences of obtaining property by deception in September 2011 for which he received suspended concurrent sentences of some 8 months, he had not left the precincts of the Magistrates’ Court before planning further offending. In April 2014 he was convicted on multiple charges of obtaining property by deception which attracted an 18 month imprisonment sentence also to be served concurrently. In addition, he was found guilty of breaching community correction orders indicating a complete disregard for the law and potential victims of his offending.
In fact, that offending increased in its seriousness. His earlier convictions did not deter Mr Bernard at all. His risk of reoffending remains real, particularly as he has had an addiction to opioids for which he is being now treated with methadone. He cannot be described as drug-free at present. Clearly, the considerations concerned with protection of the Australian community weigh heavily in favour of refusing Mr Bernard’s application to revoke the Minister’s decision to cancel his visa.
The best interest of Mr Bernard’s daughter is also a primary consideration. While it appears that Mr Bernard has maintained a good relationship with his daughter, I did not have evidence of Mr Bernard’s engagement with his daughter which might advance her education or social development. Despite Mr Bernard claiming he was her primary carer, that has not been the case for the past three years. Whilst it is common, when considering the best interests of children under the age of 18 years, to conclude that such children’s interests are best served by having two parents, that is not inevitably the case. That is particularly so where one parent has been found guilty of serious criminal misconduct and there remains a real risk that the offending will continue. To compound the matter in this case, there appears to be a significant rift between the two parents. Therefore, it is with considerable reluctance that I find that, as conceded by the Respondent, while consideration of the best interests of Mr Bernard’s daughter probably favours revocation of the Minister’s decision to cancel his visa, it does not carry significant weight in this case. Should Mr Bernard reoffend, his relationship with his daughter is likely to become strained, particularly as she gets older and more aware of his misconduct.
Given Mr Bernard’s flagrant disregard of Australian laws and orders made by a Court, together with the extent of the continuing offending after having been charged and convicted, it is clear that the expectations of the Australian community would not favour revocation of the minister’s decision to cancel Mr Bernard’s visa.
As for the Other Considerations, Mr Bernard’s contribution to the Australian community has been limited given that his offending started about 12 months after his arrival in Australia. Despite having a number of family members living in Australia, only his brother, Mr Elvis Bernard, gave evidence at the hearing supporting him. However, Mr Elvis Bernard did not indicate that he might be able to assist in finding work for his brother or supporting him financially should he separate from his wife. His ties to Australia appear to be limited to the relationship with his daughter and, possibly, his wife. It does not lend significant weight to his application for revocation of the Minister’s decision.
While the impact Mr Bernard’s offending had on his victims is a significant other consideration, I had no evidence before me as to what impact was sustained by his victims. That is because his convictions were in the Magistrates’ Court and there were no sentencing remarks recorded. Nevertheless, I readily accept that his offending caused significant distress and inconvenience to his victims.
The final consideration involves the extent of impediments, including Mr Bernard’s health, if he were removed from Australia and returned to Mauritius. While Mr Bernard made much of a number of medical conditions from which he suffers, I have found that the health facilities on Mauritius are adequate to meet his concerns. That is what the objective evidence before me discloses and I had no contradictory evidence other than Mr Bernard’s subjective views.
Upon considering the Primary Considerations and Other Considerations, I find that the weight of evidence supports the Minister’s decision to cancel Mr Bernard’s visa. I affirm that decision.
64. I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the written reasons herein of Egon Fice, Senior Member
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Associate
Dated 3 May 2017
Date of hearing 3 October 2016 Applicant In Person Advocate for the Respondent Ms A Briffa
Solicitors for the Respondent Australian Government Solicitor
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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Natural Justice
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