Blanco and Minister for Immigration and Multicultural Affairs
[2006] AATA 784
•13 September 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 784
| ADMINISTRATIVE APPEALS TRIBUNAL GENERAL ADMINISTRATION DIVISION | ) No: N2005/1119 ) ) | ||
| Re: | JOSE BLANCO | ||
| Applicant | |||
| And: | MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS | ||
| Respondent | |||
| DECISION | |||
| Tribunal | The Hon R N J Purvis AM QC, Deputy President | ||
| Date | 13 September 2006 | ||
| Place | Sydney | ||
| Decision | The decision under review is set aside. | ||
[sgd]____________
The Hon R N J Purvis AM QC
Deputy President
CATCHWORDS
IMMIGRATION – visa cancellation – transitional (permanent) visa – character test – substantial criminal record – whether Ministerial discretion should be exercised in Applicant’s favour – best interests of the children - best interests override the other primary considerations – decision under review set aside.
Migration Act 1958; sections 501(2), 501(7)(c)
Ministerial Direction 21
REASONS FOR DECISION
| 13 September 2006 | The Hon R N J Purvis AM QC, Deputy President |
| the application |
On 24 June 2004 a delegate of the Minister for Immigration and Multicultural Affairs (“the Respondent”) cancelled the transitional (permanent) visa at that time held by Mr Jose Blanco (“the Applicant”). The visa was cancelled on the basis that the Applicant was not a person of good character within the meaning of section 501(2) of the Migration Act 1958 (“the Act”). The discretion available to the Respondent was not exercised in the Applicant’s favour.
The reasons given by the Respondent for the cancellation stated amongst other matters:
“…
[76]On 1 May 1998 Mr Blanco was convicted at Liverpool District Court of the following offence:
·Aid in the import of prohibited imports sentenced to imprisonment of 12 years with a non-parole period of 8 years. On appeal the NSW Court of Criminal Appeal quashed the sentence and in lieu imposed a sentence of 10 years and 6 months imprisonment with a non-parole period of 7 years.
[77]As a consequence of his sentence of more than 12 months Mr Blanco is deemed to have a substantial criminal record and not to pass the character test by virtue of s.501(6) with reference to s.501(7)(c) of the Act. …
…
[82]The nature of Mr Blanco’s conduct and its effect on the community is such that I gave this consideration great weight, having taken the view that the Australian community is entitled to protection from such conduct.
Risk of recidivism
[83]I considered that Mr Blanco has one other drug related conviction. …
[84]I considered that Mr Blanco has recorded a number of infringements within the prison system including as recently as January and March 2004 and that he has admitted to cannabis use whilst incarcerated.
[85]I noted that Mr Blanco has expressed remorse for the offences and that he has expressed the intention to be law abiding on release.
…
[87]I assessed that there is a possible risk that Mr Blanco might re-offend. I place moderate weight on his risk of recidivism.
Deterrent to others
[88]In considering whether the cancellation of Mr Blanco’s visa would act as a deterrent to other non-citizens who might engage in similar activities, I found that cancellation in this instance may provide a deterrent effect. …
…
[91]However, in view of Mr Blanco’s offence and the seriousness of that offence, I believe that the Australian community would expect Mr Blanco’s visa to be cancelled and him to be removed from Australia. …
Best Interests of the Children
[92]I also gave primary consideration to the best interests of the children. Mr Blanco has one step child and one child from his relationship with Lizzete Patzi. He has maintained contact with his children throughout his incarceration and he intends on becoming a part of their daily lives when released.
[93]… I therefore found that the children would suffer hardship if they accompanied Mr Blanco to Nicaragua.
[94]I found that should Mr Blanco be removed from Australia and his children remain in Australia, his children would find it difficult to maintain any bond they currently share with their father.
[95]I found that cancellation of Mr Blanco’s visa and his removal from Australia would cause hardship to his children. …
…
[97]I accept that returning Mr Blanco to Nicaragua would cause him considerable hardship, however I noted that Mr Blanco has family in Nicaragua who may be able to assist him on his return.
…”
issues for determination
The issues for determination in this application are whether:
·The Applicant fails to pass the character test by reason of his having a substantial criminal record within the meaning of section 501(7)(c) of the Act having been sentenced to a term of imprisonment of 12 months or more; and
·The discretion available to the Tribunal to cancel the Applicant’s visa should or should not be exercised in his favour.
the hearing of the application
At the hearing of the application the Applicant was represented by Mr Saba El-Hanania solicitor of Slattery Thompson Lawyers. The Respondent was represented by Mr Avenish Chand, solicitor of Clayton Utz.
The documents lodged with the Tribunal and served upon the Applicant pursuant to the provisions of section 37 of the Administrative Appeals Tribunal Act 1975 were tendered in evidence and marked G1 to G20. Written material tendered on behalf of the Applicant was admitted as exhibits and marked accordingly as follows:
Exhibit A Psychological Assessment dated 22 August 2005
Exhibit B Psychological Assessment dated 25 January 2006
Exhibit C Bundle of docs – 33 Certificates of attainment and achievement
Exhibit D Minutes of Proposed Orders of Family Court of Australia dated 16 February 2005
Exhibit E Unsigned letter from Eco-dynamic dated 12 August 2004
Exhibit F The Reasons for Judgement of Federal Magistrate Court dated 15 February 2005
Exhibit G Statement of Lizette Ginelda dated 24 August 2006
Exhibit H Statement of Louise Blanco dated 21 August 2006
Exhibit J Statement of Robert Marenco
Exhibit K Statement of George Plaza dated 20 August 2006
Exhibit 1 Affidavit of Roman Gonzalez dated 31 August 2006
The Applicant, Mrs Lizette Patzi, Andrew Patzi and Christopher Patzi gave oral evidence.
relevant legislation and ministerial direction
The provisions of the Act relevant to this application are as follows:
“501
...
(2)The Minister may cancel a visa that has been granted to a person if
(a)The Minister reasonably suspects that that 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 in subsection 7); or
… otherwise the person passes the character test.
(7)For the purposes of the character test a person has a substantial criminal record if:
(a)…
(b)…
(c)The person has been sentenced to a term of imprisonment of 12 months or more; or
…”
If the Tribunal is satisfied that the Applicant does not pass the character test then the discretion provided for in section 501(2) of the Act is available to it. In exercising the discretion, Ministerial Direction 21 is to be followed with the Tribunal having regard to the three primary considerations and a number of other considerations referred to in that direction. The Tribunal is to have regard to the importance and weight placed by the Minister on the primary considerations. Other considerations are also to be given appropriate weight, any one of which is not to individually outweigh a primary consideration.
Paragraph 2 of the Ministerial Direction 21 as here relevant states:
“Protection of the Australian Community
2.4The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community. The Government is especially mindful to take reasonable steps to protect the safety of the more vulnerable members of the community such as children and young people especially at risk. This is of particular importance when the offences in question are in relation to drugs and crimes of violence.
2.5The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(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)
Seriousness and Nature of the Conduct
2.6It is the Governments view that the following are examples of offences considered by the Government to be very serious:
(a)The production, importation, distribution, trafficking (including possession for this purpose), commercial dealing or selling of illicit drugs:
· Persons who embark upon drug related crime for financial gain have shown a callous disregard for the insidious effects of illicit drugs on the health and welfare of Australia’s young people:
· The government views non-citizens who have sought to profit from the import or supply of drugs whether or not motivated by their own need for illicit drugs as extremely serious offenders. It is important both as a deterrent to other criminals and to protect Australian society that it is clearly understood that crimes involving drug trafficking which puts the lives of young Australian’s at risk be viewed as completely unacceptable to the community; and
· Offences involving illicit drugs of dependency or addiction such as heroin are also of particular concern to the government and the community;
(b)Organised criminal activity resulting in a conviction in Australia or elsewhere.
...
Further, Ministerial Direction 21 provides that:
“2.7 It is the Government’s view that the sentence imposed for a crime is an indication also of the seriousness of the offenders conduct against the community.
Decision makers should have due regard to the Government’s view in this respect including:
(a)The extent of the person’s criminal record including the number and nature of offences, the time between offences and the time that has elapsed since the most recent offence;
(b)The repugnance of the crime;
(c)Crimes involving violence or fraud against defenceless persons such as children, the elderly, the disabled and the incapacitated (are especially repugnant to the whole community).
…
2.10It is the Government’s view that the person’s previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism. In particular the following factors will be relevant to the assessment:
(a)a non citizen commits a further offence after having been warned previously about the risk of refusal or cancellation;
(b)a non citizen with several previous convictions in Australia should be considered as having an increased risk of recidivism in light of that past behaviour. In cases where there is a gap or gaps between convictions the inference may be open that the non-citizen has demonstrated that a substantial period since an earlier conviction is not a reliable indicator that future offences will not be committed;
(c)The extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make;
General Deterrence – the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) offence by other persons
2.11General deterrence aims to deter other people from committing the same or a similar offence. While not a conclusive factor in itself, general deterrence is an important factor in determining whether to refuse or cancel a visa. The general deterrence factor may be relevant in a number of ways:
(a)The nature of the offence may be as such that the visa refusal or cancellation may deter others from committing similar offences; and
…
Expectations of the Australian Community
2.12The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached or where there is a significant 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 to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. Decision makers should have due regard to the Government’s view in this respect.
The Best Interests of the Child
2.13This consideration only applies if the child is or would be under the age of 18 years when the decision comes into effect. The best interests of any children aged 18 years or more is not a primary consideration but may be considered with other considerations under paragraph 2.17
…
2.17When considering the issue of visa refusal or cancellation other matters, although not primary considerations, may be relevant. It is the Government’s view that where relevant it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations. These other considerations may include:
(a)The extent of disruption to the non-citizen’s family, business and other ties to the Australian community
…
(c)The degree of hardship which would be caused to immediate family members lawfully resident in Australia including Australian citizen (including whether the immediate family members are able to travel overseas to visit the non-citizen); the nature of the relationship between the non-citizen and the immediate family members; whether immediate family members are in some way dependent on the non-citizen for support which cannot be provided elsewhere
(d)Family composition of the non-citizen’s family both in Australia and overseas
…
(h)Any evidence of rehabilitation and any recent good conduct
…”
chronology of significant events
The parties provided to the Tribunal chronologies of the events significant to a decision in this application. Subject to a number of variations and additions a relevant chronology is as follows:
| 1969 | |
| April 1 | Birth of Miss Lizzete Patzi |
| Dec 16 | Birth of the Applicant in Nicaragua |
| 1988 | |
| Sept 23 | The Applicant arrives in Australia as the holder of a Central American Refugee Program visa |
| 1991 | |
| July 6 | Applicant’s step son Andres born to Miss Patzi |
| 1993 | |
| May 28 | The Applicant departs Australia |
| June 22 | The Applicant returns to Australia |
| 1994 | |
| Sept 1 | The Applicant granted a transitional (permanent) visa |
| Oct 26 | Applicant’s son Christopher born to Miss Patzi |
| 1995 | |
| July 26 | The Applicant convicted of possession of prohibited drug, fined $200 |
| 1998 | |
| May 1 | The Applicant convicted of aid in the import of prohibited imports – narcotics; sentenced to 12 years imprisonment with a non-parole period of eight years |
| 1999 | |
| May 14 | NSW Court of Criminal Appeal quashes the sentence and imposes a sentence of 10 years and 6 months imprisonment with a non-parole period of 7 years |
| 2003 | |
| Oct 28 | Notice of intention to consider cancellation of visa given to the Applicant |
| 2004 | |
| Mar 19 | Pre-release report from probation and parole service noted that the Applicant had been charged with 9 institutional offences including fail to comply with correction centre routine, fail urine test, refuse urine test, possess prohibited drug, fail to attend muster and possess/create prohibited drug |
| Jun 24 | Respondent cancels the Applicant’s visa |
| 2005 | |
| Feb 16 | Local Court Family Matters makes orders by consent referrable to the Applicant having contact with his step son and son |
factual situation generally and findings of fact
The Applicant was born in Nicaragua on 16 December 1969, the fourth youngest of six brothers and three sisters. In about 1983 together with his family he moved to Costa Rica where the family remained as political refugees for about five years. In 1988 the Applicant’s parents with their four younger children, including the Applicant, were admitted into Australia as the holders of Central American Refugee Program visas. Some time after their arrival in Australia the parents and two of the children returned to Nicaragua.
The Applicant was 19 years of age when he first entered Australia. He had completed his schooling in Costa Rica. He obtained work as a process worker, later being engaged on building sites and as a garage assistant. In about 1995 he entered into a de facto relationship with Ms Lizzete Patzi with whom he had a son Christopher. Ms Patzi has another child, Andres, from a previous relationship. The Applicant remained living with Ms Patzi until his incarceration.
The Applicant has now served the non-parole period of his imprisonment and is presently in Villawood Detention Centre waiting the outcome of this present application.
During the period he has spent in prison and at Villawood the Applicant has maintained contact with the two boys in person and by telephone and for a period, until she entered into another relationship, with Ms Patzi. On 16 February 2005 orders were made by the Local Court, Family Matters, granting the Applicant defined contact with Christopher whilst he remained in detention. With the assistance of friends contact has been maintained with both sons. The Applicant telephones the boys nearly every day discussing social, sporting and school activities with them. They both refer to him as “Dad”.
If the Applicant is allowed to remain in Australia he proposes on leaving Villawood to live with his brother and exercise frequent contact with both Andres and Christopher. There is no opposition on the part of the boys’ mother to their spending alternate weekends with the Applicant. She expressed the opinion that the boys needed a father in their lives. Each of the boys gave evidence to the effect that they would like to spend time with their “father”. He says that employment is available for him with a friend, Mr Roberto Marenco who owns and operates a pest control services company. Employment is also available with G and M Painting and Decorating Services.
During his period of incarceration the Applicant has undertaken various courses including:
·Certificate II in General Education;
·Statement of Attainment in General Construction;
·Achievement Award – Job Seeking Skills;
·Occupational Health & Safety for Construction Work;
·Occupational Health & Safety;
·Information Technology – Certificate II;
·Certificate II in Furnishing (Furniture Manufacturing);
·Painting and Decorating Orientation;
·Achievement Award – Reading and Writing;
·Workplace Communications – Module 2;
·Statement of Attainment – Oral Communication Level 1 and 2;
·Statement of Attainment – Numeracy & Mathematics I;
·Achievement Aware – Independent Learning & Study Skills;
·Job Seeking Skills – Module 2; and
·Basic Word Processing.
It is stated that in the event of his being released into the Australian society the Applicant intends to return to TAFE to complete a refrigeration and air conditioning course (G pp52-53).
criminal history
The criminal history of the Applicant as detailed by the New South Wales Police Service comprises the following:
1995, July 26 Convicted Possession prohibited drug Fined $200 1998, May 1 Convicted Importing prohibited drug Imprisonment 12 years with a non-parole period of 8 years 1999, May 14 Sentence of 1 May 1998 set aside by NSW Court of Criminal Appeal Sentenced to 10 years and 6 months imprisonment with a non-parole period of 7 years
It is also noted that in 1994 he received a 100-hour community service order for driving whilst disqualified.
The Probation and Parole Service in its pre-release report of 19 March 2004 notes that the Applicant “has been charged with nine institutional offences”. The particular offences have been detailed earlier in these reasons, the last of which occurred in March 2004.
In the course of his remarks on appeal the presiding Judge in the Court of Criminal Appeal said:
“…
5.His Honour [the trial judge] found the applicant to be a most unimpressive witness who chose deliberately not to give to the court a full account of his role in the importation. In the result, his Honour accepted Mr Mareno’s evidence that the applicant’s role was more than that of a mere introduction agent or messenger for the principal. His role was higher up the hierarchy.
…
9.These factual findings are not now in dispute and it was clearly open to his Honour to come to the conclusion that the applicant occupied a position in the chain of hierarchy for this operation well above that of a mere courier. His criminality, accordingly, was properly found to be markedly more serious than that of Mr Mareno.
10.The applicant was twenty-two years of age at the time of the offence and twenty-eight years of age at the time he came to be sentenced. He was a single man and he had no prior convictions save for a minor conviction for the offence for possession of cannabis.
…
21.There is no suggestion that his Honour sentenced the applicant other than for a one-off importation. In order to determine his objective criminality, his Honour had to determine what his role was. The matters taken into account, both preceding and following the offence, were matters from which inferences could properly have been drawn in reaching a conclusion on that subject. They show unequivocally to my mind that the applicant’s criminality was of a very serious kind.
…”
character
There is not any issue that the Applicant by reason of the provisions of section 501 of the Act is a person not of good character. The period of his sentence alone is sufficient to make this finding. Before turning attention to a consideration of the discretionary factors overall, it is desirable however to pay specific attention to issues of recidivism, the best interests of the children and of the hardship that may be experienced by the Applicant and members of his family if the visa remains cancelled.
I am satisfied on the evidence before the Tribunal that the Applicant is a person not of good character within the meaning of the Act.
discretionary considerations
Protection of the Australian community
The Applicant says that he “has come to understand the seriousness of my crime” and has undertaken “the educational courses to address my offending behaviour”. In a letter he wrote to the Respondent under date of 15 June 2004 he said:
“… I am a very different person today I am aware that many challenges lay ahead once I am released, however with the support of my family and friends in Sydney I know I have the resolve to make a bright future for my children and for myself.
…
… I realize that I was quite hampered by my disrupted schooling due to the civil unrest in my country. It was my lack of education and ethical understanding that influenced by criminal behaviour. During my time in goal I have made every effort to undertake educational courses which will facilitate employment upon my release, …
… I take responsibility for my crime and I have served seven years of my life in gaol as punishment. I have suffered and my family has suffered as a consequence.
In conclusion, I respectfully ask your Department to look at my case in a positive light and not deny my family the opportunity to live in this country. I ask for a second opportunity to be able to lead a better life together with my family and children.
Yours sincerely”
In a report dated 22 August 2005 Mr John Jacmon, OAM, Consultant Psychologist, having spent time with the Applicant and made an assessment of him concludes:
“…
·No disorder has been identified which might adversely affect Mr Blanco’s behaviour on release and act as a trigger to reoffending.
·In relation to marijuana Mr Blanco claims to have been an infrequent user and has now given up the drug.
·Mr Blanco’s effort in rehabilitation has been demonstrated through the acquisition whilst in incarceration of educational and employable skills.
·On release Mr Blanco has a job. He has his brother and friends to support him. He is very close to his children and has the full cooperation of his former partner to take up his role as their father.
·Mr Blanco has had over seven years of incarceration. He may find some difficulties in adjusting to community life following release. He would benefit from attending weekly sessions by a psychologist for counselling for a period of about three months to resolve any adjustment issues as they occur.”
It is relevant to the making of a decision in this matter to note that the Applicant admitted during the course of his current cross-examination that on a previous occasion he had not told the truth to the Tribunal. The application was also before the Tribunal in 2004. On that occasion the Applicant told the Tribunal that when he travelled to South America in 1993 it was for the purpose of meeting drug suppliers. He now says that this was not true and that he travelled to that country at that time in order to visit relatives of his and those of his then de facto wife, Ms Patzi. He further says that the statement was made by him as a result of his then belief that his representative, Mr Raymond Gonzales, was advising him to make this statement.
The Applicant further says that Mr Gonzales wrote “a paper on my behalf”. “He told me”, the Applicant said in the course of his cross-examination “to, just say it, everything will be OK.” “I decided to obey what I was told to say”, by Mr Gonzales.
Mr Gonzales, a community worker and justice of the peace, assists elderly people, disabled people, the long-term unemployed and migrants. He was in 2004 asked by the Applicant to assist him in the then pending Administrative Appeals Tribunal proceedings. He told the Applicant that he was not a migration agent or a lawyer. He read the documents given to him by the Applicant. He said in his evidence that he told the Applicant to be honest and accurate in what he said, and recognise and accept his past anti-social conduct. Mr Gonzales denies advising the Applicant to do other than tell the truth at the hearing. The Tribunal accepts the evidence of Mr Gonzales but as discussed later in these reasons, does not consider that the Applicant intended at the relevant time to mislead the Tribunal. There was room for misunderstanding between the Applicant and Mr Gonzales.
On his behalf it is maintained that there is no evidence to suggest that the Applicant will inflict any harm upon the Australian community or engage in anti-social activity. More so, his rehabilitation whilst in prison has been achieved by way of the courses of instruction that he has undergone. It is unlikely, it is submitted, that he will re-offend given the close relationship he enjoys with Andres and Christopher and his own realisation of the mistakes he made in the past.
On behalf of the Respondent however, it is said that the offence for which the Applicant was convicted is very serious and is within the classes of offence detailed in the Minister’s Direction 21. His criminal conduct is to be seen in this light. Further, he was found by the trial judge to have threatened the safety of his accomplice’s de facto partner as well as the safety of the accomplice’s family and relatives. The fact that the Court of Criminal Appeal reduced the period of the sentence was attributable to the lengthy period of delay between the criminal conduct and the Applicant being charged.
The Respondent maintains that the likelihood that the Applicant may re-offend is real, this evidenced by his conduct in prison and the nine institutional breaches that he there committed. Further he has admitted to the use of marijuana in custody. If the visa should be cancelled other likeminded persons may be discouraged from engaging in similar criminal conduct. It is submitted on behalf of the Respondent that the protection of the Australian community requires the visa to be cancelled.
expectation of the australian community
The Australian community expects that residents abide by Australian laws. This expectation was broken when the Applicant engaged in the criminal conduct for which he was convicted. A person, a non-citizen, who is convicted for a drug-related offence should not, it is said, be entitled to remain in Australia. The seriousness of his offence is seen in that he occupied a position in the chain of or hierarchy of responsibility this being well above that of a mere courier. He made threats in relation to the safety of an accomplice’s family, relatives and de facto partner. The community would expect that someone who behaved as did the Applicant and who made threats as he did in order to maintain his criminal activity should not be entitled to remain in the Australian community.
best interests of the children
The Applicant states in a letter to the Respondent of 15 June 2004:
“…
I believe Australia is a great country and is full of opportunity and I want my children to grow into responsible adults who will contribute to this community. They are at an age now where they are beginning to have an understanding of my current situation and they are very excited about the prospect of being with me ageain [sic]. These seven years have been hard on my children however we have never lost the hope of being reunited again. I want to be able to care for them and to share in their lives, and support them as they grow older and to be able to let them get to know their father and the love I have for them. …”
The children’s mother, Ms Lizzete Patzi, in a letter that she wrote on 15 June 2004 stated:
“…
This letter is on behalf of my kids, Andres who is 12 years old and Christopher who is 9 years old. They have been looking forward to their father coming out of gaol for a long time. It would be a big show to them if he has to leave the country.
My kids have plans for when Jose is out and what they are going to do. It has been very hard especially for the eldest one for all this time he has been in gaol.
My eldest son had a nervous breakdown about 3 years ago because Jose kept telling him he would be out soon and he did not understand how long this would be. One day my son just started crying and would not stop because he wanted to go to live with his father and he thought his father was lying to him because he did not come home. He confronted his father who explained exactly when he would come out. He is really looking forward to Jose being released.
My kids talk about their dad to everyone because he was a good baseball player and they tell everyone that their dad will teach them to play baseball when he is out.
When Jose was in Sydney gaols I took my kids to visit him each week or fortnight. They always insisted on visiting their father. I used to catch the train to Lithgow each week with the children to visit Jose. …
Now Jose is not in a Sydney gaol Jose calls them each week on Saturday and Sunday to speak with the children. He speaks with both of the children.
After his release I have no problems with Jose spending as much time with the kids as he wants. He can pick them up from school and spend time with them.
It would be a good help for me to have Jose around because I work and sometimes need help. …
… Last year both sons went to Long Bay on the day of their birthdays. They did not want any other party, just to spend time with their father. Jose is a loving man towards kids and loves his children.
…
My biggest worry is that if he goes overseas my sons will not be able to see their father. …
The kids have suffered a lot up to now. I don’t even want to think about what would happen if he is out of their lives for good.
…”
In her oral evidence and her written statement (Exhibit G), Ms Lizette Patzi, the boys’ mother, says she has “no” hesitation in permitting the Applicant to see “his children as he clearly loves them very much”. She says the Applicant has changed over the years and has learnt from his past. He wishes to live his life with his children in Australia. The boys expressed a similar emotional attachment.
A friend of 15 years, Juana Lopes, endorses the close bonding between the Applicant and the two boys. They are waiting for him to come out of jail to spend time with him “to go everywhere with him”.
Mr John Jacmon, the psychologist, in a report dated 25 January 2006 speaks of an interview that he had with the two children. He noted that Andres is in Year 10 at the Catholic Boy’s College in Liverpool and Christopher in Year 6 at the Ashcroft Public School. He said that the boys spoke freely of their father in a positive manner and strongly expressed a wish for him to remain in Australia. The stepson Andres responded “If my dad left Australia I would be so upset because the feeling of him not being around or not seeing his face would make me and mostly my little brother cry whenever we remember him”. Christopher responded “I like my dad to stay in Australia because without him I’d have no one to trust or talk to”. The psychologist states that:
“…
Both boys have strong attachments to their father and wish they could see him more frequently. Notwithstanding that he is in detention he is fulfilling a fatherly role. They look forward to his telephone calls and the opportunity to spend some time talking to him and seek his advice. They would be markedly distressed if he were deported at a time in their lives when they need their parents the most.
…”
The psychologist concludes his report by remarking:
“… They are in their adolescent years, a time when parents are most needed. His deportation is likely to be markedly detrimental to their transition into adulthood.
…”
The Respondent acknowledges the relationship existing between the Applicant and the boys. Emphasis is to be placed upon their best interests; that is their best interests referrable to the proposed deportation of their father. The Respondent recognises that if “there was a real prospect of the Applicant not re-offending, the best interests of his sons would be served by the Applicant remaining in Australia so that he could play a part in their upbringing and provide emotional and financial support to them”. However, the Respondent maintains that there is a significant risk that the Applicant will re-offend and thus the best interests of the sons is unlikely to be advanced by his remaining in Australia. It is said that it is likely that the Applicant will on re-offending and subsequent conviction be unable to play a constructive role in their lives and could possibly constitute a disturbing influence. The Tribunal does not accept this to be so.
The Tribunal is not of the opinion on the evidence before it that there is a significant risk of the Applicant re-offending. Whilst it is noted that the Applicant has offended against rules and regulations of the correctional institutions where he has spent time and that he has admitted being untruthful to the Tribunal it is accepted that he has endeavoured to rehabilitate himself and that he is sincere and genuine in his wish to play a part in the upbringing of Andres and Christopher. No charges have been laid in respect of the institutional infringements. They were not very serious. It may well be that on the earlier occasion he did at the time, as he now says, misunderstand the question referrable to his travel to South America. There was certainly, according to Mr Gonzales, confusion on this occasion which “probably led to a misunderstanding” of the position in relation to the travel to South America. What he now maintains is that he did not travel to South America for that purpose.
The Tribunal accepts that it would be in the best interests of the boys for the Applicant to remain in Australia. They each have a close bonding with him, even be it that he has been institutionalised for a number years. But he has nevertheless remained in contact with them and their mother. He has involved himself in their continuing welfare. They would benefit from this contact being maintained and having the Applicant involved more extensively in their lives. It is a matter of weighing this significant consideration against factors pertaining to the protection of the Australian community and the expectations of that community.
other considerations
The Applicant has a close relationship with his brother living in Australia who is now 45 years of age and not well. He lives alone and has been in receipt of a disability pension for not less than seven years. He relies upon assistance afforded to him by carers and/or friends. The Applicant proposes to reside with his brother if he should be released into the community. The Applicant would be of measurable assistance to his brother if living with him and providing moral and physical support. There would undoubtedly be hardship experienced by the brother in the event of the Applicant being deported. There is not now a continuing de facto relationship with Ms Patzi, she having formed a bonding with another man. It is true that if the Applicant be returned to Nicaragua where his mother and a number of his siblings there reside, he would be able to gain support from them.
The Tribunal is satisfied that the Applicant has endeavoured to rehabilitate himself but is conscious of the instances in which he has offended whilst in jail.
The Tribunal is satisfied that Australia’s international obligations would not be breached if it exercised its discretion in cancelling the Applicant’s visa. There are no reasons to believe that removing the Applicant to Nicaragua would breach any relevant Australian international obligations.
submissions and decision
The Tribunal is conscious of the serious nature of the Applicant’s criminal behaviour and the observations made by the Appeal Judge. The offence was committed in 1992, the Applicant not charged until 1997 and convicted in 1998. The appeal was heard in 1999. As I have earlier indicated the Tribunal is satisfied that the likelihood of the Applicant re-offending is negligible. Whilst it was with some reservations on account of the infringements that parole was recommended, the Applicant is to attend drug and alcohol counselling and urine analysis.
The psychologist in his report is supportive of the Applicant remaining in Australia. He recognises rehabilitation in the educational and employable skills that the Applicant has acquired. He makes mention of work being available for him and the support of his brother, friends, sons and former partner. It is recognised that the Applicant may find “some difficulties in adjusting to community life” the same being in part resolved by counselling.
It is true that there would be a deterrent value in cancellation of the visa. A warning would sound to any non-citizen minded to commit an offence. A sanction would also attach for not telling the truth. I am conscious however of the Applicant’s remorse.
Having considered the evidence referrable to the primary considerations I am satisfied that whilst the offence was very serious it was committed 14 years ago. The Applicant over that period of time has endeavoured to put his anti-social conduct behind himself and acquire skills commensurate with his capacity to fruitfully engage in community activity. Cancellation of his visa would cause hardship, not only to the Applicant but also to his brother. The best interests of Andres and Christopher would be served by the Applicant remaining in Australia and becoming a meaningful and constructive influence in their lives. This is as they and their mother want it to be and as the Applicant intends.
For the reasons discussed in this decision I am satisfied that the best interests of the children override the other primary considerations and when considered with the hardship that would be experienced by others, warrants the decision under review being set aside.
Accordingly, the decision under review is set aside.
I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis AM QC, Deputy President
Signed: Associate
Dates of Hearing 4 September 2006
Date of Decision 13 September 2006
Solicitor for the Applicant Mr El-Hanania, Slattery Thompson Lawyers
Solicitor for the Respondent Mr Chand, Clayton Utz
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