Bewick and Minister for Immigration and Multicultural Affairs

[2000] AATA 472

DECISION AND REASONS FOR DECISION [2000] AATA 472

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q00/290

GENERAL ADMINISTRATIVE  DIVISION       )       
           Re      RICHARD WALTON BEWICK    
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS          
  Respondent

DECISION

Tribunal       Deputy President DP Breen, Presidential Member      

Date13 June 2000

PlaceBrisbane

Decision      The Tribunal sets aside the decision under review and in substitution therefor determines that the discretion under Section 501 of the Migration Act 1958 be exercised in favour of the applicant and that he be allowed to remain in Australia.

(Sgd)      DP BREEN
  PRESIDENTIAL MEMBER
CATCHWORDS
IMMIGRATION – visa cancellation – use the Tribunal is to make of a Ministerial direction – balancing of factors – role of the Australian community.
Migration Act 1958 s 501
Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

REASONS FOR DECISION

13 June 2000           Deputy President DP Breen, Presidential Member                  

1. This is a review of a decision by a delegate of the Minister for Immigration and Multicultural Affairs dated 6 March 2000 to cancel the applicant's Transitional (Permanent) Visa under Section 501 of the Migration Act 1958.

2. This case was heard before me on 29 May 2000 in Brisbane.  The applicant, Richard Walton Bewick, represented himself.  Mr E Howell of the Australian Government Solicitor's Office represented the respondent Minister.

3. The applicant and his mother, Mrs Ann Schenk, gave oral evidence at the hearing.  The following documents were also taken into evidence.

• Exhibit 1            "G" Documents

• Exhibit 2            Assessment Unit Report dated 17.6.99

• Exhibit 3            Letter from Major K Goldsack from the Fairhaven Drug and   Alcohol Rehabilitation Centre dated 18.3.99

• Exhibit 4            Letter from Queensland Community Corrections Board dated  4.10.99

• Exhibit 5            Prisoner Accommodation – Secure to Residential Authorisation   Form dated 9.11.99

• Exhibit 6            Sentence Management Review dated 18.1.99

• Exhibit 7            Transcript of Sentencing before Judge Forno QC on 13.8.97

• Exhibit 8            Summary of Counselling and Violence Intervention Programme  Report

• Exhibit 9            Transcript of Interview before the Community Corrections Board  dated 15.7.99

• Exhibit 10          Progress Report by NSW Department of Corrective Service  dated 31.8.94

• Exhibit 11          Letters to NSW Parole Board dated 25.1.94

• Exhibit 12          Remission Reports dated 1.6.99

• Exhibit 13          Unit Reports and Work Reports of the applicant

• Exhibit 14          Certificates of courses completed whilst in Prison

• Exhibit 15          Drug test results

• Exhibit 16          Statement of Richard Bewick

• Exhibit 17          Queensland Health Pathology Results dated 14.1.99

1. Mr Bewick is 33 years of age.  He arrived in Australia from England at the age of 9 years with his parents and elder sister.  He has resided in Australia since that time.  At the age of 14 months he suffered a grand mal as a result of epilepsy and suffered subsequent petty mals until his early teens.  This affected his interaction with other children and his schooling.

2. Around the age of 13 years he was diagnosed with what is now known as Attention Deficit Disorder.  However, due to the debate in the medical profession at the time over the existence of the condition in general, he was unable to obtain appropriate ongoing clinical management of the disorder.  This greatly affected his ability to interact socially and to complete his education.  Further, it contributed to his conflicts with authority during his early to mid teens.

3. After being charged with Break and Enter and Steal in 1980, he was sent to Boys Town.  During a summer vacation there he was sexually abused.  It has only been whilst in prison on his most recent sentence that, with the help of his psychologist, he has been able to talk about this event.  At the time, he turned to drugs to deal with the emotional devastation this caused and his criminal activity escalated as a result.  Between 1985 and 1997 he has numerous convictions, including stealing, assault, motor vehicle and drug offences.

4. In 1985, whilst on remand in Parramatta Jail, he contracted Hepatitis C and was told he had only 15 to 20 years to live.  This sent him on a down-hill spiral for a number of years.  However, in 1994, after two years imprisonment, Mr Bewick was drug-free and trying to get his life together.  Shortly after release he was diagnosed with renal colic kidney stones and was treated with pethidine and morphine, opium based painkillers.  He was not given an opportunity to detoxify in hospital after this, so once the medication was ceased, he reverted to drug usage and subsequently to crime.

5. During the current sentence he has again become drug-free and has remained so for 3½ years.  He is now aware that there are non-opiate based painkillers which he can be treated with if the need arises in the future so as to avoid a repeat of the situation in 1994.  He intends, upon release, to enter the "Fairhaven" Drug and Alcohol Rehabilitation Centre, run by the Salvation Army, to help him assimilate back into the community in a positive way.  Whilst in prison he has undergone extensive counselling and, as he says, has started dealing with the causes of his problems, not just the symptoms.  He has also completed a number of vocational courses in welding and bricklaying.  Mr Bewick's family all reside in Australia and they are willing to support him upon his release if he is to remain in Australia.

6. Mr Bewick's visa was cancelled under Section 501 of the Migration Act 1958. Section 501 is in the following terms:

   "(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.

   …..

   (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

   (b)the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or

   (c)having regard to either or both of the following:

   (i)the person's past and present criminal conduct;

   (ii)the person's past and present general conduct;

   the person is not of good character; or

   (d)in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:

   (i)engage in criminal conduct in Australia; or

   (ii)harass, molest, intimidate or stalk another person in Australia; or

   (iii)vilify a segment of the Australian community; or

   (iv)incite discord in the Australian community or in a segment of that community; or

   (v)represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.

   Otherwise, the person passes the character test.

   (7)For the purposes of the character test, a person has a substantial criminal record if:

   (a)       the person has been sentenced to death; or
   (b)       the person has been sentenced to imprisonment for life; or

   (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 (whether on one or more occasions), where the total of those terms is 2 years or more; or

   (e)the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution."

1. Mr Bewick's extensive criminal history and his conviction in 1997, which attracted a sentence of 5 years, means that he has a substantial criminal record and so fails the character test.  Therefore, the Tribunal must consider whether to exercise the discretion in favour of the applicant, notwithstanding that he fails the character test.

2. The Minister has issued a Direction under Section 499 of the Migration Act - Direction No 17 – Visa Refusal and Cancellation under Section 501, which applies to the exercise of the discretion. The extent to which ministerial directions apply to this Tribunal was considered by Brennan J (as he then was) in the case of Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. He stated:

   "When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case."

1. There are three primary considerations under this Direction – protection of the Australian community, expectations of the Australian community and, where the applicant is involved in a parental relationship with any children, the best interests of those children.  The third consideration does not apply in this case.

2. Considering, firstly, the protection of the Australian community, it is acknowledged that the applicant has an extensive and serious criminal history which involves offences of violence and drug usage.

3. The Tribunal has before it two assessments of the risk of recidivism – one by a Senior Community Corrections Officer, in a report considering the suitability of Mr Bewick for work release, home detention and parole which assessed Mr Bewick as a high risk recidivist case.  The other assessment is a Remissions Report which was compiled by a Sentence Management Team of three officers, including the General Manager which assessed him as a low risk to the community.

4. The first report was based on a 5 minute interview and included incorrect information, including two major breaches.  These breaches were later identified as having been incorrectly placed on the applicant's file (Exhibit 4).  The second report was made after a much more thorough investigation and received input from the applicant's psychologist who has been counselling the applicant for the past 3 years.  It is the Tribunal's view that the second report is to be preferred as a more complete and accurate assessment of the risk of recidivism although the final task of assessment falls to the Tribunal itself.

5. The applicant has made a concerted effort to address not only his offending behaviour but also the underlying causes of it.  While with all drug-related offences there is a real risk if the offender returns to drugs that the offending behaviour will continue, the applicant in this case has taken significant steps to address his drug dependency.  He has been drug-free for 3½ years and has successfully completed a number of drug-related courses.  He intends to enter into a 6 month residential drug rehabilitation programme upon his release from prison which demonstrates his ongoing commitment to remaining drug-fee and to re-integrate with society in a positive manner.  The vocational training undertaken by Mr Bewick whilst in prison will assist him in obtaining employment upon his release.  As such, despite the applicant's extensive criminal history, the Tribunal assesses the risk of recidivism as being acceptably low enough to protect the Australian community.

6. The question of general deterrence is not assessed as having a great deal of weight in this matter.  There are no co-offenders who the applicant is still in contact with who would be deterred by the cancellation and the case is unlikely to be publicised outside of Mr Bewick's immediate family.

7. The second primary consideration is the expectations of the Australian community.  These expectations are that a non-citizen will obey Australian laws.  Where there is a risk that this trust will be reached, or the crime which the person is convicted of is so abhorrent, it may be appropriate to cancel the visa.  As stated above, the risk of recidivism is low so the risk that the trust of the Australian community will be breached is also low.  Further, while many Australians would be quite appalled at the length of the applicant's criminal history, taking into account all the circumstances, it would not be considered so abhorrent as to preclude the continuance of the visa.

8. The primary considerations are fairly balanced given Mr Bewick's long criminal history but low risk of recidivism.

9. There are a number of secondary considerations which must also be taken into account, although one, on its own, cannot outweigh a primary consideration.  The pertinent secondary considerations are as follows:

(a)the extent of disruption to the non-citizen's family, business and other ties to the Australian community;

(b)the degree of hardship which would be caused to immediate family members lawfully resident in Australia;

(c)family composition of the non-citizen's family, both in Australia and overseas;

(d)any evidence of rehabilitation and any recent good conduct;

(e)the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances; and

(f)whether the non-citizen has been formally advised in the past about conduct which brought them within the ambit of Section 200 or Section 501.

1. The applicant's family resides in Australia.  He has two 89 year old aunts living in England but has had no contact with them for many years and they would be unable to support him if he returned to England.  The respondent accepts that the applicant's ties to the United Kingdom are non-existent and that such relocation would cause extreme hardship.  Mr Bewick has resided in Australia since the age of 9 years.  In considering his ties to Australia, his residence here for 24 years should be given significant weight, despite the fact that many of those years have been spent in an institution or in prison.  The applicant has a good relationship with his parents who are elderly and of failing health.  The applicant is also very close to his elder sister and has a strong bond with her 4 year old son.  The cancellation of the applicant's visa would sever these ties as neither his parents nor his sister, who is a single mother, would be able to visit him in England.  This would cause severe hardship to all involved.

2. As stated above, the applicant has been drug-free for 3½ years and has been given positive reports by those in the prison system who have regular contact with him.  At no time prior to these proceedings has the applicant been warned that his conduct could lead to the cancellation of his visa.

3. Finally, the applicant suffers from Hepatitis C and the current prognosis is that at best he has another 5 to 10 years to live.  In Australia he has the love and support of his family who can care for him when he becomes seriously ill.  In England he has no-one to provide support or care.  This is a significant compassionate ground on which to allow the applicant to remain in Australia.

4. The secondary considerations are balanced in favour of the applicant.  As such, both the primary and secondary considerations contained in the Ministerial Direction require that the discretion be exercised in favour of the applicant.

5. There is one other consideration which is not included in the Ministerial Direction but which goes straight to the justice of this matter.  This consideration is the role the Australian community has had in contributing to the person the applicant has become and the criminal activity he engaged in.  The applicant arrived in Australia at the age of 9 years with medical conditions of epilepsy and attention deficit disorder (ADD).  He was often ostracised as a youngster due to his epilepsy and because the medical profession could not decide whether a disorder such as ADD existed he failed to receive appropriate clinical management.  He was made a Ward of the State at the age of 13 years but instead of being protected and "straightened out" he was sexually abused and further damaged emotionally.  Whilst in prison on remand he contracted Hepatitis C due to the prison's insistence on inmates using communal shavers.  He came out of prison drug-fee in 1994 and was then treated with opiate-based painkillers for a medical condition, thus re-establishing his addiction.  Although these factors do not excuse the applicant's conduct, he certainly made his own choices, they do go a long way to explaining such conduct.  The Australian community cannot wash their hands of a man who was conditioned and hindered in his attempts at rehabilitation by sectors of that community.  The cancellation of his visa and expulsion from this country would be extremely unjust given his concerted attempts at rehabilitation and his family circumstances.

6. In this case the only just outcome is for the applicant to be given another chance. The Tribunal has made it clear to Mr Bewick that this is the last chance he will get. He understands that his liability under Section 501 will remain for the rest of his life and that if he sets one foot wrong the Minister can cancel his visa again and any subsequent appeal to the Tribunal would be very speedy indeed.

7. For the above reasons the Tribunal sets aside the decision under review and in substitution therefor determines that the discretion under Section 501 of the Migration Act 1958 be exercised in favour of the applicant and that he be allowed to remain in Australia.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member

Signed:         Emma Oettinger
  Associate

Date/s of Hearing  29.5.00
Date of Decision  13.6.00
Rep. for the Applicant              Applicant appeared in person

Solicitor for the Respondent    Mr E Howell, Australian Government Solicitor's Office