Blanco and Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 989
•21 September 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 989
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/824
GENERAL ADMINISTRATIVE DIVISION ) Re Jose Manuel Blanco Applicant
And
Minister for Immigration and Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Deputy-President J Block Date21 September 2004
PlaceSydney
Decision The decision under review is affirmed.
[SGN] Deputy-President J Block
CATCHWORDS
MIGRATION ACT – visa cancellation – Applicant held Transitional Permanent Visa - Applicant failed character test – Applicant sentenced to over ten years jail for drug importation – Applicant also had previous convictions for minor offences - Applicant had two children – no evidence that Applicant had any real involvement with children – situation in Nicaragua now quiet and stable – decision under review affirmed.
LEGISLATION
Migration Act 1958 – sections 275, 276, 280, 500(6H), 501G
CASES
Blanco v R (1999) 106 A Crim R 303
Minister for Immigration and Multicultural Affairs v SRT (1999) FCR 234
Minister for Immigration and Multicultural Affairs v SRT (1999) FCR 234
REASONS FOR DECISION
21 September 2004 Deputy-President J Block Part A: Introduction and General
1. The decision under review is the decision dated 2 July 2004 by a delegate of the Respondent cancelling a Transitional (Permanent) Visa held by the Applicant (G19: page 90).
2. The Applicant was represented by Mr Ramon A Reyes-Gonzalez of L’Amer-Aussies MRF. The Respondent was represented by Mr Avinesh Chand of Clayton Utz, solicitors. The Tribunal had before it the G-Documents lodged in terms of section 501G of the Migration Act 1958 (“the Act”). The Tribunal also took into evidence the following documents lodged by the Applicant by fax on or about 4.30pm on Monday 6 September 2004:
a) a document entitled Exhibit Documents (“ED”). This document listed documents numbered 1-11 inclusive;
b) a statutory declaration by the Applicant dated 6 September 2004 (“the Applicant’s Statement”);
c) a statutory declaration by Eric Mena (“Mena”) dated 6 September 2004;
d) a statutory declaration by Sergia Guillen (“Guillen”) dated 6 Sptember 2004.
The documents referred to in sub-paragraph b, c, and d above were numbered 1-3 in the document entitled ED.
3. A telephonic directions hearing was held in July 2004. During the course of that hearing, the Applicant was warned in the clearest possible terms that having regard to section 500(6H) of the Act, the Tribunal would be precluded from considering any evidence sought to be submitted on his behalf where that evidence did not comply with section 500(6H) which reads as follows:
“(6H) If:
(a) an application is made to the Tribunal for a review of a
decision under s501; and
(b) the decision relates to a person in the migration zone;
the Tribunal must not have regard to any information presented
orally in support of the person’s case unless the information was
set out in a written statement given to the Minister at least
2 business days before the Tribunal holds a hearing (other than a
Directions hearing) in relation to the decision under review.”
3. The matter was set down for hearing on 2 and 3 September 2004. Shortly before 2 September 2004 the Applicant contacted the Tribunal to ask for a postponement in order to enable him to obtain legal representation. Recognising that it was desirable that the Applicant be legally represented, the Applicant’s application was granted and the matter was re-listed for hearing on 9 and 10 September 2004.
4. The Applicant sought the assistance of Mr Reyes-Gonzalez of L’Amer-Aussies MRF. On 31 August 2004 Mr Reyes-Gonzalez contacted the Tribunal in order to seek a further postponement of the hearing for a period of two weeks. This is an expedited visa hearing, the effect of which is that the matter must be heard and a decision issued by no later that 21 September 2004 and failing which the decision under review is deemed to be affirmed. In these circumstances a postponement of a further two weeks would for the Applicant, have been counter-productive, and more particularly because the hearing would in that event have commenced after 21 September 2004.
5. Accordingly and on 1 September 2004 the Tribunal wrote to Mr Reyes-Gonzalez as follows:
“I refer to your letter dated 31 August 2004, and in which you asked for an extension of two weeks in the matter of Jose Blanco and Minister for Immigration & Multicultural & Indigenous Affairs now set down to be heard on 9 and 10 September.
At a directions hearing on 30 July 2004 your client was warned that because this is a visaex matter, section 500(6H) of the Migration Act 1958 has the effect that written evidence by him must be received by the Tribunal 2 clear business days before the hearing, and so that any evidence that does not strictly comply with section 500(6H) cannot be taken into account.
It is important to remember that because this is a visa ex matter the decision must be published within 84 days after the application, failing which the decision is to be affirmed. In this case, the 84th day will occur on 21 September 2004.
The matter was originally listed to be heard on 2 and 3 of September. A few days before the matter was to be heard, your client sought (and received) an adjournment, in order to enable him to obtain representation; the matter was relisted on 9 and 10 September 2004. On the basis that it is heard on those days in September, the time available with which to prepare, type, edit and publish the decision is, as you will appreciate, very short.
To grant the extension you seek will have the effect that the hearing takes place after the 84th day on which it will be taken to be affirmed. To grant your application, would having regard to your client’s interests, highly undesirable . . . ”
6. In this same letter the Tribunal expressly again warned the Applicant as to the provisions of section 500(6H) of the Act, and emphasised that the Applicant’s written evidence had to be submitted by no later than 6 September 2004. On 6 September 2004, and in the late afternoon the Tribunal received the documents referred to in paragraph 2. The Respondent’s solicitors advised the Tribunal on the hearing day and when the matter commenced, that they too received the same documents at or about the same time. On the following day (Tuesday 7 September 2004) the Tribunal received further documents consisting of a document entitled ED (being the document referred to in paragraph 2) but amplified by the inclusion of additional items numbered 12-14 together with certain documents not previously sent (those documents having been listed as numbers 4-11 in the ED amplified referred to in paragraph 2). At the hearing Mr Reyes-Gonzalez said that the Applicant had tried to send certain documents by fax on 6 September 2004 to the Tribunal and to Clayton Utz but that in each case had not been able to send to the recipient fax. The Tribunal is unclear as to how this could be so; its fax was entirely operational at that time and on that day. Furthermore Mr Chand confirmed that this applied also to the Clayton Utz fax machine. Nevertheless, both the Tribunal and Clayton Utz received the documents referred to in paragraph 2 by fax at or about the same time. Mr Reyes-Gonzales said also that he had been at Villawood that afternoon and could not get back into town in order to deliver the documents. However, the provisions of section 500 (6H) of the Act are absolute; the Tribunal has no discretion and may not consider any of the material received on 7 September 2004. The documents which can not be considered are the documents listed as numbers 4-11 on the document entitled ED and the documents listed as numbers 12-14 on the amplified version of the ED which were received on 7 September 2004, and which thus did not comply with section 500 (6H) of the Act.
7. Mr Reyes-Gonzales is neither a solicitor nor a migration agent. The Tribunal was concerned that if he were to appear for the Applicant he personally might be in breach of section 276(1)(d) of the Act which, when read with section 280 effectively precludes any person other than a legal practitioner or a migration agent from representing a party in certain circumstances. Sections 276 and 280 read as follows:
“Section 276 Immigration Assistance
(1)For the purposes of this Part, a person gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist a visa applicant or cancellation review applicant by:
(a) preparing, or helping to prepare, the visa application or cancellation review application; or
(b) advising the visa applicant or cancellation review applicant about the visa application or cancellation review application; or
(c) preparing for proceedings before a court or review authority in relation to the visa application or cancellation review application; or
(d) representing the visa applicant or cancellation review applicant in proceedings before a court or review authority in relation to the visa application or cancellation review application.
Section 280 Restrictions on giving of immigration assistance
(1)Subject to this section, a person who is not a registered migration agent must not give immigration assistance.”
However, Mr Chand pointed out that the “review authority” as defined in section 275 of the Act means the Migration Review Tribunal “or” the Refugee Review Tribunal but not (although this may have been an oversight) this Tribunal. In the circumstances the Tribunal was pleased to be able to allow Mr Reyes-Gonzalez to represent the Applicant since for the Applicant to have presented a case of this nature himself might have been difficult.
Part B: Extracts from Relevant Documents.
8. The Respondent’s Statements of Facts and Contentions dated 7 September 2004 contains the usual helpful chronological summary of relevant facts. The content of that statement under the head of “Facts” only is set out in these reasons as follows:
“23.09.1992
Arrived in Australia as the holder of a Central American Refugee Program visa. (G1)
01.09.1994
Granted a Transitional (Permanent) Visa as a result of the operation of the Migration Reform (Transitional Provisions) Regulations. (G1)
01.05.1998
Convicted of "aid in the import of prohibited imports - narcotics" by the Liverpool District Court. The Court sentenced Mr Blanco to 12 years imprisonment with a non parole period of 8 years. (G4)
14.05.1999
The NSW Court of Criminal Appeal quashed the sentence pronounced by the District Court on 01.05.1998 and in lieu, imposed a sentence of 10 years and 6 months imprisonment with a non parole period of 7 years. (G4) and (G17)
28.10.2003
A notice of intention to consider cancellation of visa was sent to Mr Blanco. (G5)
05.03.2004
An assessment officer of the Department of Immigration and Multicultural and Indigenous Affairs carried out an "international obligations and humanitarian concerns assessment" and found that cancelling Mr Blanco's visa and removing him from Australia was not likely to breach any of Australia's international obligations listed in Direction No.21. (G18)
19.03.2004
A pre-release report from the Probation and Parole service noted with concern that Mr Blanco had been charged with 9 institutional offences including Fail to Comply with Correctional Centre Routine (X2), Fail Urine Test (X2), Refuse Urine, Possess Prohibited Drug, Fail to Attend Muster and Possess/Create Prohibited Drug (X2). The report noted that the most recent offences of Possess Prohibited Drug, Fail Urine Test and Fail to Comply with Routine occurred in January and March of 2004. The report also noted that Mr Blanco admitted to cannabis use in the correctional centre. (G10)
24.06.2004
The Minister's delegate cancelled Mr Blanco's visa pursuant to section 501(2) of the Migration Act 1958.(G2)”
I note that the Applicant’s visa was cancelled on 2 July 2004, not 24 June 2004. Furthermore, the recital of facts set out above omits two other convictions. In 1994 Blanco received a 100 hour community service order a Blacktown Local Court for the offence of Drive Whilst Disqualified (G10: page 52) and he was also convicted of possession of cannabis (G17: page 70).
9. In respect of the three statutory declarations referred to in paragraph 2, Mr Reyes-Gonzalez informed the Tribunal that neither Mena nor Guillen was available to give evidence. Mr Chand agreed that their statutory declarations (referred to in paragraph 2) could be admitted, subject naturally to weight, on the basis that he would not require either of them for cross-examination. Accordingly, the only witness who gave oral evidence was the Applicant himself. He was assisted by an interpreter in the Spanish language. However, as he demonstrated during the hearing, his English is fluent and many questions were answered in English without waiting for the interpreter to translate. (Mr Reyes-Gonzalez complained that some of the evidence was not being translated with complete accuracy.)
10. The Applicant’s oral evidence did not accord in a number of respects with the Applicant’s statutory declaration; clauses 1-4a of the Applicant’s statutory declaration are included in these reasons as follows:
“Arrival to Australia:
1. I born on 16 December 1969, Nicaragua.
2. Due to political reasons, on 11 December 1983, my family and I traveled to Costa Rica. In Costa Rica my mother applied for refugee to the government which was granted. At that time I was 14 years old. It was hard for me being outside of my beloved home country. It was difficult for me to assimilate a new culture during the five years I was living in Costa Rica. However, it was not easy for me to make those changes in my life even for my parents they experienced similar feelings on those changes, my three sisters and five brothers and I always were with tears in our faces because the fact of being away from our beloved home country Nicaragua.
2a. Approximately in 1987-88, the United Nations High Commissioner for Refugees under special negotiations with the Commonwealth of Australia made arrangement on our behalf for a ‘Central American Refugee Program Visa’ which covered my mother’s family members (including only my parents and five youngest children). On 23 September 1988, we come to Australia with my parents and other members of the family holders of a Central American Refugee Program visa. Of all my family members covered under that special Central American Refugees Program returned to Nicaragua in 1990, 1993 and 1997. I am the only one who decided to stay in Australia. My brother Luis Blanco came to Australia with his own family under their own visa similar to us, he lives at 9/5-11 Calliope St GUILFORD NSW 2161.
2b. My parents, sisters and brothers who decided to return to Nicaragua could not manage or assimilate the Anglo-Australian culture and linguistic barriers. Although, it was hard for me as well, I decided to challenge the discriminatory environment against refugees like me due to my origin, lack of language skills and studies; reasons why it was difficult for me to find a full time and decent employment. Between 1988 and 9 July 1997, I received unemployment benefit 4-5 years of 9. During four or five years I had casual and part time jobs organised by the Commonwealth Employment Services.
2c. During 1988 to 9 July 1997, the only assets I had were: one stereo ($1,200.00), Video recording ($400.00), furniture ($1,000.00), fridge ($350.00), washing machine ($400.00), dry machine ($350.00) and a Car ($1,500.00) and from time to time the maximum amount I had into my bank account was $500.00
2d. Other sharing assets (50/50 ownership) I had with my brother Luis Blanco: Mechanic tools ($750.00), air compressor ($250.00), welding equipment ($300.00), oxygen welding ($650.00), sander machine ($120.00) grander machine ($160.00).
Family separation:
The periods of 1990, 1993, 1997 were difficult times for me, I experienced frequent periods of depression due to family matters. In 1990, my parents and my youngest sister returned to Nicaragua. At that time I was 21 years old. In my entire life I never was separated from my parents or my family. This was our first experience of family separation. The only comfort I had were my sister Elizabeth Blanco, she was 17 years old at that time she was living with my brother Luis Blanco. My two brothers Marco Blanco (18 y.o. at that time) and Manuel Blanco (20 y.o at that time) were living with me.
3a. In 1993, my brother Manuel Blanco decided to return to Nicaragua. At that time, he was handling a Court case, apparently he was accused of a ‘car robbery’, only because he was friend of Mr. Marvin Barahona (Salvadorean), Ingold Monastel (born in Costa Rica and Mr. Jorge Mareno’s stepson). I felt very depressed and confused about my future due to my involvement with Mr. Jorge Mareno’ drug activities (since 1992) and death treats (by third parties) made against my siblings in order to force me not to give much information in future investigations by the Federal Police.
3b. For that family death treats since 1992 against my brothers (Manuel, Marco, Luis and sister Elizabeth), my ex-defacto partner Lizette Patzi, my stepson Andrez Patzi and my child Master Christopher Gabriel Patzi, in 1998 I accepted all charges, accusations and conviction against me made by the Federal Police and the Liverpool District Court. Both authority representatives felt unhappy due to my lack of cooperation to give them more information of the possible existence of a drug dealing network activities.
3c. In 1997, one week after my detention my brother Marco Blanco left Australia. He felt afraid of being detained, apparently he was also involved with my drug activities according to an accusation made to the Federal Police by Mr. Jorge Mareno. The fact is that he could travel without any problem, he had not problem of detention at the Sydney International Airport the day he left Australia.
3d. Approximately at the end of 1997, my sister Elizabeth Blanco left Australia. She felt afraid due to telephone death treats received against her and my brother’s family while my case was in due Court process.
My defacto relationship with Ms Lizette Patzi:
4. I had a defacto relationship with Ms. Lizette Ginelda Patzi Espinoza (d.o.b 01/04/69) who had permanent resident status in Australia. She had a child (with her husband) Master Andres Steward Hernandez (d.o.b 06/07/91). On 26 October 1994 our child Master Christopher Gabriel Patzi was born.
4a. Before the birth of my child Master Christopher Gabriel - she was having problems with her husband - Lizette and I agreed that my child should be registered only with her surname. This is the reason why my child was not registered with my surname.”
11. The judgment of the Court of Criminal Appeal of New South Wales in Blanco vR (1999) 106 A Crim R 303 (“Blanco v R”) dated 14 May 1999 is contained in G17: page 65. Clauses 5-10 of that judgment are set out in these reasons as follows:
“5 His Honour 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.
6 The account of Mr Mareno that was accepted shows that he, Mr Mareno, was approached by the applicant in March 1992 to act as a courier, to go to South America and to bring the cocaine back to Australia. The applicant, he said, insisted that he go ahead with the trip when he began to show some signs of reluctance. Later, in company with a Mr Vengas the applicant assisted Mr Mareno in obtaining a passport and an airline ticket. Mr Mareno was promised ten thousand dollars if he would make the trip. The applicant instructed Mr Mareno before he left this country not to talk to anybody if anything went wrong. He gave him $US5,000 that he was to hand over to the applicant's brother in South America together with $US500 spending money. He informed Mr Mareno that he was to deliver the cocaine to him on his return to this country.
7 The applicant and a Mr Rodriguez attended at Sydney Airport to meet Mr Mareno on his return. When he failed to emerge from the arrival hall at Sydney Airport the applicant, who had been waiting for him, went to the home of his de facto where he told her to instruct Mr Mareno not to talk. He threatened the safety of the de facto as well as that of the family and relatives of Mr Mareno if he decided to speak to the authorities. He then drove her to the Sydney Police Centre where Mr Mareno was being held.
8 The applicant admitted in his record of interview that he later provided approximately $3,500 to Mr Mareno's solicitors to assist with his legal defence.
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.”
12. A pre-release report by the Probation and Parole Service is contained in G10: page 51. I include its content under the heads of “Previous Community Supervision” and “Correctional Centre Behaviour” (G10: page 52 and page 53) which read as follows:
“PREVIOUS COMMUNITY SUPERVISION
Apart from the current period of incarceration, the only contact this inmate has had with the Probation and Parole Service was in 1994 when he received a 100 hour community service order at Blacktown Local court for the offence of Drive Whilst Disqualified.
CORRECTIONAL CENTRE HISTORY
Correctional Centre Behaviour
Due to the length of his sentence, Inmate Blanco has been housed at numerous Correctional Centres and has been classified to St Heliers Correctional Centre since 25th November 2003.
He is currently employed as a Unit Sweeper at this Centre and his work performance has been described as poor in his case management file.
Of concern, this inmate has charged with nine institutional offences including, Fail to Comply With Correctional Centre Routine x 2, Fail Urine Test x 2, Refuse Urine, Possess Prohibited Drug, Fail to Attend Muster and Possess/Create Prohibited Drug x 2. The most recent offences of Possess Drug, Fail Urine Test and Failure to Comply with Routine occurred in January and March 2004.
In discussing the offences with Inmate Blanco, particularly the drug offences, he admitted to cannabis use in the correctional centre. He stated during interview that he did not think his use problematic and denied the need to attend further drug and alcohol counselling.”
Part C: The Oral Evidence of the Applicant
13. The evidence of the Applicant was at times fragmented in the main because it was not elicited in a coherent fashion.
14. The Applicant came to Australia with his parents and four siblings (two brothers and two sisters) in accordance with a United Nation’s Sponsored Refugee Program in September 1988. Prior to that date, the family had spent five years in Costa Rica, having left Nicaragua because of the war which had been in progress at the time when they left Nicaragua. The Applicant said that another brother, Luis Blanco, came to Australia with his family in accordance with a family reunion program. If this were so, Luis and his family would have come to Australia after the Applicant and his family had done so. In fact Luis came to Australia prior to the Applicant’s family in consequence of the same refugee program.
15. The Applicant’s evidence is that his brother Luis lives on his own, and is in bad health, having suffered injuries to his leg and back. The Applicant intended the Tribunal to infer that Luis has no one to care for or assist him. However, he then said that Luis was separated from his wife and children. (There is in fact only one child.) Luis was not called to give evidence and the extent of his incapacity was not in evidence. The Applicant referred to Luis on a number of occasions on the basis that Luis needed his assistance in his daily life. When asked how Luis had managed while the Applicant was in prison the Applicant answered simply that friends had helped. It may be mentioned that Luis did not accompany the Applicant and his family to Australia because at the time of his Application Luis was a major. Luis apparently lives on social security benefits provided by the Australian Government.
16. The Applicant’s parents and the four siblings who came to Australia with him have all returned to Nicaragua, although at different times. The Applicant said that his brother Marco Antonio Blanco (“Antonio”) returned because he was charged with car theft and left Australia to escape prosecution and possible imprisonment. At a subsequent stage of his evidence, the Applicant said that Antonio went back to Nicaragua because he was also involved in the drug ring of which the Applicant was a member, and that Antonio in consequence feared prosecution and jail.
17. Other members (so he said) of the family returned to Nicaragua because of “threats” made to them by members of the drug ring in which the Applicant was involved. This was particularly so of Elizabeth who returned to Nicaragua in 1997. The Applicant’s former de facto partner Lizette Ginelda Patzi Espinoza (“Patzi”) was also so he said “threatened”.
18. I am of course bound by the comments of the New South Wales Court of Appeal in Blanco v R; see Minister for Immigration and Multicultural Affairs v SRT (1999) FCR 234. However, the judgment of the New South Wales Criminal Court of Appeal in Blanco v R does not record all of the facts and circumstances which gradually emerged during the course of the Applicant’s evidence. As appears from the Applicant’s statement he lived for approximately five years on social security but with occasional casual employment (although no details of that casual employment were given in evidence). The Applicant became a member of a group or ring of drug dealers; there were in other words persons besides Mr Jorge Mareno (“Mareno”), who was the drug courier, and the Applicant’s brother Marco Francisco Blanco (“Francisco”) although no others (excluding for this purpose Mareno who was charged and sentenced) were charged.
19. The evidence of the Applicant as to his various brothers was quite extraordinarily confused. Clauses 3(a) and (b) of the Applicant’s Statutory Declaration refer to “my brother Manuel”, although there is no such person. The Applicant is Jose Manuel Blanco and he has, apart from Luis, two brothers being Antonio and Francisco who are referred to in this fashion because of the similarity of their first Christian names.
20. One of his brothers, not Luis, and not “Manuel” was apparently involved in a car theft charge (and was also in the drug ring) and left Australia to escape the charges. I propose to assume that it was Francisco if only because the Applicant’s statutory declaration (clause 3(c)) specifies that Francisco was involved in the drug ring. It is not clear to me whether Francisco was also involved in the car theft charge although this seems likely, or whether the latter problem relates to Antonio. The “mistakes” in the Applicant’s statutory declaration have caused this confusion; (see also clause 2(a) of the Applicant’s statement as to Luis and the fact the Applicant said that Luis came to Australia on a Family Reunion Visa). It is also possible that both brothers other than Luis were involved in the drug ring, but as I have indicated this is unclear.
21. The drug ring was according to the Applicant, an organised group which was in existence for a number of years before the courier Mareno was arrested. The role played by the Applicant was important and in all events, and more important that that played by Mareno. In fact, the Court of Criminal Appeal in Blanco confirmed the District Court’s finding that; “His [Blanco’s] criminality, accordingly, was properly found to be markedly more serious than that of Mr Mareno”, see paragraph 11 above. The Applicant in his evidence talked of two extensive overseas trips to countries including countries in South America (and in particular Bolivia, Chile and Argentina), both of which took place in 1991. G1: page 1 indicates under the heading of “Immigration History of Visa Holder” that those trips were made in fact at a later time. It would appear that the Applicant departed Australia on 21 February 1992 and returned on 18 March 1992 and then again departed 28 May 1993 and returned 22 June 1993. Both trips were, according to the Applicant, made with finance provided by the drug ring, and one at least was made in order to investigate sources of drug supply. One of the Applicant’s brothers (probably Francisco) went to Bolivia for the same purpose some time thereafter. Mareno was enlisted as the courier and was provided with funds, which had been supplied by the drug ring, in order to buy the drugs. When Mareno returned to Australia with a large supply of cocaine which he had placed in condoms and swallowed, he was arrested by the authorities. The Applicant and another person who were present at Sydney Airport to meet Mareno immediately went to the home of Mareno’s de facto and threatened her and her family that there would be serious consequences if Mareno “talked”.
22. The fact that some time elapsed before the Applicant was brought to trial was the reason why the New South Wales Court of Criminal Appeal reduced the sentence imposed by the District Court. In the ensuing period, there were, so the Applicant said, threats by other members of the drug ring (not named) against Elizabeth Blanco and Lizette Patzi, (and which in the case of Elizabeth was the reason why she returned to Nicaragua in 1997). On the other hand, clause 2(b) of the Applicant’s statutory declaration sets out that “my parents, sisters and brothers who decided to return to Nicaragua could not manage or assimilate the Anglo-Australian culture and linguistic barriers”. The Applicant said that he embarked on his drug activities because he could not find proper employment.
23. To add to the confusion, the Applicant also referred to Antonio as being the brother involved with the car theft problem and who was afraid of implication in the drug ring. The most that could be said is that one of the brothers (not Luis) was involved in all probability in both. The Applicant said also that the threats against members of his family and him were made by members of the drug ring and that this is why he refused to co-operate with the police. There was no evidence by any members of his family and in particular no evidence by anyone of threats against any family members other than Elizabeth and Patzi (treating Patzi for this purpose as a family member).
24. It will be recalled that the Applicant came to Australia in 1988. By 1991 (according to his evidence) he had gone on two overseas trips funded by the drug ring, thus indicating that his drug related activities started years before his conviction. It is hardly likely that trips overseas to source drug supplies were made with moneys provided by the ring until the ring was satisfied that it could trust the Applicant. On the basis that he came to Australia in 1988 at the age of 19, approximately three years, or perhaps less elapsed before his involvement commenced. As to his claim that he became involved in the drug ring because he could not get rewarding employment, the timing suggests that his involvement commenced at an early stage of his life in Australia and thus comparatively soon after his arrival and before employment or the lack of it became a significant issue.
25. The Applicant said that his relationship with Patzi ended when he went to jail. However, he stated that they remained good friends and she brought the children, Andres, who was born in 1991 and is the child of her first marriage but referred to by the Applicant as his “stepson”, and Christopher, who was born in 1994, and who is his own son to visit him in jail. Both of the children are Australian citizens. The Applicant said that there is no prospect whatever of a reconciliation with Patzi. He said also that he would not want to take the children to Nicaragua because (in broad terms) the standard of living is not as good as in Australia. The Applicant said also that although the war in Nicaragua is over, conditions remain unsettled. He did admit however in cross-examination that conditions in Nicaragua are now quiet and calm. (It is relevant of course that six members of his family have returned to Nicaragua apparently without untoward results.) Mr Chand referred in this context to country information in respect of Nicaragua contained in a document entitled the “2003 U.S. State Department Report on Human Rights Practices in Nicaragua”, referred to at G19: page 77 to page 79. Of course there is no basis upon which the Applicant could, even if he wanted to do so, take the two children to Nicaragua. He has parted from Patzi and there is no prospect of a reconciliation. Even if they were together the father of his “stepson” would surely have a right to object to the removal of Andres from Australia. The fact that he is parted from Patzi means presumably that she would not wish to accompany him to Nicaragua which would effectively preclude any possibility of his taking the two children or for that matter either of them. It follows then that the realities are that he could not possibly do so. Even if he were to be allowed to stay in Australia he would not be living with Patzi and the children.
26. During his prison years the Applicant took a number of courses detailed in G6: page 32 to page 46, these courses include:
a) “Occupational Health and Safety: Introduction Training for Construction Work” from Work Cover (2003)
b) “Achievement Award: Independent Learning and Study Skills” from the Adult Education & Vocational Training Institute (2002)
c) “Achievement Award: CGEA – Reading and Writing” from the Adult Education & Vocational Training Institute (2002)
d) “Achievement Award: GCO – Job Seeking Skills 1.1 and 1.2” from the Adult Education & Vocational Training Institute (2002)
e) “Achievement Award: CGO – Job Seeking Skills 1.3 and 1.4” from the Adult Education & Vocational Training Institute (2002)
f) “TAFE Statement in Information Technology” from TAFE (2000)
g) “Statement of Attainment: VBC Oral Communication Level 2” from the Adult Education & Vocational Training Institute (1999)
h) “Statement of Attainment: VBC 858 Numeracy and Mathematics 1” from the Adult Education & Vocational Training Institute (1999)
i) “Statement of Attainment: VBC 850 Reading and Writing 1” from the Adult Education & Vocational Training Institute (1999)
j) “Certificate of Participation: AOD Peer Education Programme” from the AOD (1998)
k) “Certificate of Participation: Drug Education” from the AOD (1998)
l) “Statement of Attainment: VBC 854 Oral Communication 1” from the Adult Education & Vocational Training Institute (1998)
m) “Painting and Decorating Orientation: Tools, Plant and Equipment Modules 2155A and 2155B” from Western Institute of TAFE, Orange College (undated)
n) “Certificate of Achievement: HIV & Health Promotion Peer Support Training Program” from HIV & Health Promotion Unit, NSW Department of Corrective Services (undated)
He also committed nine offences (referred to in the Respondent’s Statement of Facts and Contentions) some as recently as 2004 and some after the Applicant received the Respondent’s Notice of Intention to cancel his visa dated 28 October 2003. The Applicant’s evidence as to the offences in jail was equally confusing. He admitted to taking drugs; he admitted to two refusals to give urine samples and also referred to two additional “dirty urine” offences. As to the others his evidence was that the authorities had no proof of the commission of the offences.
27. The Applicant admitted that he received the Notice of Intention to Cancel his visa and that he had read it. He was asked by Mr Reyes-Gonzalez whether he had legal representation at the time and he said that he did not. Mr Reyes-Gonzalez then said “so you had no idea why the department took the decision to cancel you’re visa?” and his answer was “no”. But, the Applicant then went on to say that he knew that his visa was being cancelled under s501 of the Act because he failed the character test.
28. In cross-examination the Applicant said that it was Francisco who went to Bolivia to buy the cocaine in respect of which Mareno was the courier. When asked how Francisco knew where to go he answered merely “contacts”. He said that Francisco and he were both members of the drug ring.
29. As to his parents and siblings now in Nicaragua, he said that he has spoken to them some three times only in the past seven years. When cross-examined about Nicaragua (and as set out previously in these reasons) he at first said that it was still unstable but then agreed that it was now quiet.
30. The Applicant apologised for his drug conduct and said that he wished to remain in Australia to be an example to the children, and so as to ensure that they did not follow his bad example. That contrition was not altogether consistent with his somewhat truculent attitude as to offences committed in prison.
31. Patzi did not give evidence. She was not called, and could not have been called because there was no written statement by her as to evidence proposed to be given by her. As to the children, the evidence was that he saw them when Patzi brought them on jail visits. The Applicant said that Patzi is a nurse but did not know where she works. For that matter he did not know how she lives and in other words what sources of support are available to her, although he doubted whether she receives any support from her former husband.
32. The Applicant said in relation to drugs that he is not an addict but that he would be willing to take a program designed to counter addiction. (He appears to have adopted a different attitude than that set out in the “Probation and Parole Service: Pre-Release Report” (G10: page 52) which is detailed in paragraph 12 above.)
Part D: The Character Test
33. Mr Reyes-Gonzalez contended both in writing and orally that the Tribunal has a discretion as regards the Character Test. It does not; the Applicant’s lengthy sentence ensures that this must be so.
Part E: Direction No. 21 - Visa Refusal and Cancellation under section 501 (“Direction 21”)
34. In this Part E, references to numbered clauses relate to numbered clauses in Direction 21.
35. Clause 2.3 of Direction 21 sets out the primary considerations as follows:
“In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c) in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.”
36. Cluase 2.3 must be read in conjunction with clause 2.5 which reads as follows:
“2.5 The 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).”
37. I commence with the children; I accept that Andres should be regarded as if he were the Applicant’s child. In the ordinary way a child’s best interests will usually be served by his having access to both parents. This will be so even where the parents have parted or are divorced. In this case there was no evidence of any kind as to the Applicant having any real involvement with either child. His lengthy prison term must be taken into account in this context, but there was no evidence (even by the Applicant) of communications with either of them before or after his incarceration and whether verbal or in writing. (Christopher was of course very young when the Applicant went into prison.) The Applicant said that while in prison he received job offers from friends who had their own businesses; but no detail whatever was furnished and this evidence is inherently improbable. It is possible that the Applicant has through the courses undertaken by him in prison developed some skills but full- time employment might be difficult for him to obtain. It is likely that if he were allowed to stay in Australia that he would have to depend, as he did previously, on social security. Put in other words the extent to which the Applicant could contribute to the welfare of the children in material, or for that matter any other terms, would appear to be very limited.
38. The decision-maker rated the prospects of recidivism as moderate (G2: page 21). I do not think that all of the facts were known, and if they were, a less optimistic approach might have been taken. The Applicant was involved in serious drugs within a comparatively short time after his arrival in Australia. The trips, (so the Applicant said, took place in 1991, although as I have indicated, they in fact took place later), but the trips could not have occurred in a vacuum; they must have resulted from an involvement in the ring which preceded them. The Applicant’s record in prison is far from clean. He said that he took drugs to relax him because of the pressure which he was undergoing. The fact is that the Applicant entered the drug ring and became involved with its members for financial reward. His statement that he would never do the same thing again may be true, but it is difficult in the circumstances to credit that statement at face value. I would rate the prospect of recidivism rather more highly than did the original decision maker.
39. Mr Reyes-Gonzalez asked me (in the context of deterrence) whether I thought that affirmation of the decision under review would stop drug trafficking. Of course I think nothing of the kind if only because the drug traffic is so very profitable. But at the same time, to set aside this decision would send entirely the wrong message.
40. As regards clause 2.3(b) of Direction 21, the expectations of the Australian community would in my view be strongly in favour of affirmation of the decision under review.
41. The Applicant’s conduct was of course very serious indeed within clauses 2.6(a) and 2.6(c) of Direction 21. I note that in this context that prior to his conviction and sentence as referred to in paragraph 8 he was convicted of driving whilst disqualified and possession of cannabis. The fact that after Moreno was arrested the Applicant hurried to the home of Moreno’s de facto partner in order to threaten her and her family if Moreno “talked” is relevant in this context and particularly significant.
42. The affirmation of the decision under review might involve some hardship to Luis, but this is doubtful given that Luis has managed without the Applicant’s assistance for many years. There was no evidence as to hardship to Patzi who has after all parted from the Applicant and does not appear to have received any financial support from him for many years assuming which, may not be the case, that she ever did.
43. The statutory declarations by Mena and Guillen must be treated with reserve, but in any event they contain little content of any substance.
44. I do not think it necessary to refer to decisions of this Tribuanl cited by Mr Reyes-Gonzalez; the case against the Applicant is very strong indeed. The interests of the children are primary, but they are greatly outweighed in the balance.
45. References were made to two International Conventions, and being the Convention on the Rights of the Child (“CROC”) and the International Covenant on Civil and Political Rights (“ICCPR”) referred to at G19: page 86 and page 87 respectively. As to the former and in relation to the interests of the children the Convention requires a consideration of their interests which is not materially different from that required pursuant to Direction 21.
46. In relation to the ICCPR the Applicant admitted that Nicaragua is currently quiet. Country information referred to by the Respondent indicates that it is both quiet and stable.
47. In the circumstances this is not a case where it is possible to consider the exercise of the discretion in favour of the Applicant and the decision under review is affirmed.
I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: Melinda Di Condio
Associate
Date/s of Hearing 9 September 2004
Date of Decision 21 September 2004
Representative for the Applicant Mr R Reyes-Gonzalez
Solicitor for the Respondent Mr A Chand
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