Boyes and Minister for Immigration and Multicultural Affairs
[2006] AATA 365
•24 April 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 365
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2006/103
GENERAL ADMINISTRATIVE DIVISION ) Re DAVID ERIC BOYES Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date24 April 2006
PlaceMelbourne
Decision The decision under review is affirmed. ..............................................
Senior Member
MIGRATION – applicant convicted of offences of dishonesty in New Zealand, New South Wales and Victoria – made false declaration on entry to Australia – application of Direction 21 – adherence to findings at trial, conviction and sentencing judges’ comments – decision affirmed
Migration Act 1958 s 499 and s 499 (2A) and s 501 (2) and s 501 (6) and s 501 (7)
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583; [1999] FCA 1238
Nystrom v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 420; [2005] FCAFC 121
Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346; [2004] FCAFC 340
Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354
Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441
Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234; [1999] FCA 1197
Re Pizlea and Minister for Immigration and Multicultural and Indigenous Affairs [2000] AATA 49
REASONS FOR DECISION
Mr John Handley, Senior Member
1. The applicant applies to review a decision made by a delegate of the respondent Minister to cancel a sub-class TY444 visa (“the visa”) issued to him in December 1995.
introduction
2. The applicant was born in New Zealand and is a citizen of that country. He was born on 29 August 1953 and is presently 52 years of age. The applicant and his family worked as farmers in New Zealand. He was educated as a boarder at Kings College where he completed his secondary education. He then commenced and substantially completed a degree in agricultural commerce at the University of Christchurch. Thereafter he was employed as a farmer and as a contractor shearer in New Zealand before his migration to Australia. The applicant was previously married but subsequently divorced. There are two daughters of his former marriage, who are presently aged 26 and 22 years respectively. In Australia the applicant has been in a relationship with Jane Howard, who is 31 years. They have one child of that relationship, Cody, who is seven years of age.
3. The applicant lawfully entered Australia on 23 December 1995 having been issued with the visa. He returned to New Zealand on 27 December 1995 and re-entered Australia on 27 January 1996. He has resided in Australia since that date.
4. On 12 May 2005 a notice of intention to consider the cancellation of his visa was issued by the character and cancellation section of the former Department of Immigration and Multicultural and Indigenous Affairs. The applicant was invited to respond to that notice and comment upon documents attached to it. He wrote letters to the Respondent department on 17 June 2005, 13 July 2005 and completed a questionnaire entitled “Personal Details” which was received on 18 July 2005. Some medical certificates and reports were also forwarded including correspondence to the applicant from QBE Mercantile Mutual Workers’ Compensation Insurance Limited. An officer of the respondent interviewed the applicant and other relevant persons. In issuing the notice of intention to consider the cancellation of the visa held by the applicant, consideration was given to him having previously been convicted and imprisoned for a number of offences.
5. Ultimately a number of officers of the Respondent department prepared a report entitled “Issues for Consideration of Possible Cancellation of a Visa Under Section 501 (2) of the Migration Act 1958” (“the Act”). That report was completed on 2 December 2005 and was made available to Mr John Williams the State Director of the Respondent department who, on 3 January 2006, decided to exercise his discretion under s 501 (2) of the Act to cancel the applicant’s visa. Mr Williams published written reasons for that decision on 11 January 2006 which was served on the applicant together with other documents on 18 January 2006 by registered mail at the Ararat Prison where he then was a resident. The applicant applied to this Tribunal to review that decision by proceedings V2006/67. However, it was subsequently learnt that there were irregularities in the manner in which he was given notice of the intention to cancel the visa. The applicant was “re-notified” by further service of the notice on 2 February 2006. An application to review was again lodged by proceedings V2006/103. These proceedings relate to that application number. The notice served on both occasions was identical. The file giving rise to proceedings V2006/67 has been closed.
6. On 17 November 1993, the applicant pleaded not guilty before the District Court in New Zealand to charges of false pretences and of obtaining credit by fraud. The jury at the trial found the applicant not guilty on some charges. He was found guilty to a number of the charges and was convicted and sentenced to three and a half years imprisonment on each charge, to be served concurrently and was ordered to pay reparation of $25,000. An appeal was lodged against conviction and sentence. The Court of Appeal in New Zealand dismissed the appeals save for the reparation order of $25,000. Those convictions were not disclosed by the applicant on the incoming passenger card when he first arrived in Australia in December 1995.
7. In November 1999, the applicant was charged with a number of offences in New South Wales associated with possession of a truck believed to have been stolen. He ultimately pleaded guilty before the District Court of New South Wales sitting at Goulburn on 2 October 2001 and was sentenced to a period of detention of two years and two months. On 28 August 2000, the applicant was convicted in the Picton Local Court in New South Wales and fined the sum of $500 on a charge of possession of stolen goods.
8. On 24 October 2002, the applicant entered a plea of guilty before the County Court of Victoria sitting in Melbourne to 36 counts of dishonestly obtaining financial advantage by deception and one count of dishonestly obtaining property by deception. He was sentenced to a total period of five years and three months imprisonment with a minimum non-parole period of three years and nine months.
9. The offences in Victoria were committed in the period May 1997 to June 1998 by the applicant making false and dishonest representations to farmers when buying, selling and carting their livestock and other produce. Judge Woods, in the Victorian County Court (apparently having been given information by the prosecutor) noted that the offences committed in New Zealand were similar to the offences committed in Victoria. It was also noted that the applicant was an undischarged bankrupt during the time that the offences were committed in New Zealand.
10. An examination of the above dates concerning the occasions when the offences were committed and the dates of conviction reveal that after the applicant was first committed for trial in Victoria he committed the offences in New South Wales.
11. The observations and findings of Judge Wood in his sentencing decision will be referred to later in these reasons.
cancellation of visa on character grounds
12. The decision under review followed a finding made by the Minister’s delegate that the applicant did “not pass the character test” under the Act. Section 501 (2) of the Act provides that a visa may be cancelled if the Minister reasonably suspects that a person does not pass the character test and that person does not satisfy the Minister that he passes the character test. A person does not pass the character test under s 501 (6) if that person has a “substantial criminal record”. Under ss (7) a person has a “substantial criminal record” if that person has been sentenced to a term of imprisonment of 12 months or more. Clearly, the applicant has a “substantial criminal record” within the meaning of s 501 (7) of the Act. It follows that the Minister can reasonably suspect that the applicant does not pass the character test and the applicant is not able to satisfy the Minister that he passes the character test (refer ss (2)). Nonetheless the language of ss (2) is discretionary and guidance in the exercise of the discretion whether to cancel the visa held by the applicant is to be found by Ministerial Direction 21 issued by the Minister pursuant to s 499 of the Act. The delegate referred to Ministerial Direction 21 (“the Direction”) in making the decision under review in these proceedings. A copy of the Direction was attached to the notice of intention to consider the cancellation of the visa dated 12 May 2005 and which the applicant acknowledged having received on 17 May 2005. At the hearing, the applicant said he was only given an “abridged” copy of Direction 21 at notification in May 2005 and received a full copy in the week prior to the hearing. He also said he obtained “half a copy” from another resident at Ararat gaol who had received a notice of intention to cancel his visa and who had been served with documents from the solicitors representing the Minister. As a fact I am satisfied a complete copy was annexed to the notice of intention to cancel the visa. The applicant acknowledged receipt of it (by his signature) on 17 May 2005. At all relevant times the applicant has therefore been aware of the matters to be considered when exercising the discretion. There was no procedural error or unfairness by the respondent.
medical and workers’ compensation issues
13. In February 1996, being the month after the applicant settled in Australia, he suffered severe injuries when he fell from a ladder when fruit picking at an orchard in the Goulburn Valley in Victoria. A number of medical reports have been filed in these proceedings from a number of doctors, including specialist neurologists, neurosurgeons and hospitals.
14. A report from the Alfred Hospital records the applicant as having been admitted with injuries to his spine at T12, L1 and L2. The applicant was admitted to surgery for an anterior decompression and fusion at those three levels. The injury is also described as an incomplete spinal cord injury at T12. The applicant uses walking aides but by reason of increased weight bearing and stress on the joints of his lower limbs, he has suffered increased degeneration and pain, particularly over the last three years. His right hip has been found to be osteoarthritic with significant cartilage loss, sub-articular sclerosis and cysts are present. The left hip displays mild osteoarthritis. His doctors have advised that he would benefit from a right hip replacement and it is agreed that the degeneration in both hips has been accelerated by the spinal injuries. A consequence of the injuries has been the loss of sensation below L1 with pressure sores to both feet and toes. The injuries have had a considerable affect upon the applicant’s bowel, bladder and gait with considerable affect also upon all domestic, vocational and recreational activities. The applicant presently has no capacity for work and is severely restricted in all aspects of mobility including bending, pushing, pulling, sitting and standing (refer reports of Dr Plunkett and Professor Rowicki). In a letter dated 12 August 2005 from the applicant’s mother in New Zealand to the New Zealand High Commission in Australia, the applicant is recorded as also suffering from “type 2 diabetes”. She also alleges by that letter that delays in the provision of a right foot brace, provision of physiotherapy, delays in provision of treatment from a “diabetes educator” and a neurologist have affected the applicant’s eyesight.
15. By reason of the spinal and associated injuries having been suffered by the applicant in the course of his employment, he has qualified for benefits under the Victorian Workers’ Compensation scheme. There are many letters lodged from the Workers’ Compensation Insurer (QBE) and from the Accident Compensation and Conciliation Service. It would appear that the applicant does have a significant permanent impairment within the meaning of the Victorian legislation. It would also appear that conciliation conferences have been scheduled to either negotiate or determine the entitlement to lump sum compensation but such conferences have been deferred or adjourned pending the applicant’s release from gaol. It would also appear from the documents lodged that in the event that the applicant returned to New Zealand, the Workers’ Compensation Insurer would have a continuing liability to meet the costs of reasonable medical and like expenses.
Direction 21
16. Section 499 (2A) of the Act requires compliance with a Direction issued by the Minister pursuant to ss (1). Direction 21 is the relevant Direction and it applies in the present application. By a majority decision of the Full Federal Court in Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583; [1999] FCA 1238 failure to apply a Ministerial Direction is an error of law. Mandatory regard for it and application of it is no better expressed than by another Full Federal Court in Nystrom v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 420; [2005] FCAFC 121 (paragraph 28) in the following terms:
There is no need to stress the importance of Direction No 21. It directly binds all but the Minister and is routinely used by Ministers to guide the exercise of the statutory ministerial discretion.
17. Because the applicant does not pass the character test, Part 2 of Direction 21 compels that regard be had to specified matters when exercising the discretion to decide whether or not a non-citizen should be permitted to remain in Australia. The Direction provides for three “primary considerations” namely,
(a)The protection of the Australian community; and members of the community;
(b)The expectations of the Australian community;
(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.
18. The primary consideration of the protection of the Australian community ((a) above) has a number of different elements which also compel consideration and will be referred to in the reasons recorded below.
protection of the australian community
19. The first element under this primary consideration is an examination of the “seriousness and nature of the conduct”. This part will require some discussion because not only did the hearing permit intimacy with the nature of the offences committed and the affect upon other persons, but a challenge was made by the applicant, alleging “jurisdictional error”. In pursuing that argument it was alleged that the respondent had misunderstood his criminal record and on some occasions had overstated the number of convictions imposed and, or, the nature of the charges which gave rise to convictions. The applicant relied on the Full Federal Court decision of Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346; [2004] FCAFC 340. In that application a challenge was made to the decision made by the Minister who had regard to the contents of a submission which had been prepared by departmental officers. In the context of exercising the discretion with respect to the risk of recidivism, the Court noted that previous drug offences did not distinguish between “hard drugs” and cannabis which was in fact the drug over which convictions had been imposed. The Court found that the failure to distinguish the nature of the drugs could have influenced the weight to be given, in the exercise of the discretion, to the risk of recidivism and the expectations of the Australian community.
20. In the present case it has been difficult to quantify and comprehend the charges over which the applicant has been convicted, both in relation to his appearances before the District Court in New Zealand and the District Court in New South Wales.
21. Having had the benefit of explanation by the applicant at the hearing, I am satisfied that he was convicted of 18 offences in New Zealand, being 17 counts of false pretences and 1 count of obtaining credit by fraud. I make that finding as fact and adopt it when exercising the discretion which I am obliged to do under Direction 21. I am also satisfied, and there was no dispute, that the applicant was sentenced to a period of three and a half years to be served concurrently in relation to all of those offences. He served the minimum non-parole period of 15 and a half months.
22. In relation to the New South Wales offences, I am satisfied and find as a fact that the applicant has been convicted of three offences, being possession of goods reasonably suspected as having been stolen, fraudulent misappropriation and possession of stolen property. The first offence resulted in a $500.00 fine, the second offence resulted in compensation of $4040.00 being ordered and the third offence resulted in a sentence of two years and two months with a non-parole period of 10 months.
23. The offences in Victoria amounted to 36 counts of dishonestly obtaining a financial advantage by deception and one count of dishonestly obtaining property by deception. The total sentence on those offences was five years and three months with a non-parole period which, but for this decision, will permit the applicant to become eligible for parole in June this year.
24. I attempted to explain during the hearing that the review before this Tribunal is de novo where findings of fact are permitted. The review does not involve an examination of, or inquiry into, the process of decision-making by the respondent delegate. If any errors were then made, the hearing de novo in this Tribunal and the opportunity to make findings of fact should hopefully reassure the applicant that his contention of jurisdictional error on the part of the Minister’s delegate no longer has any validity.
25. In making the above findings as to the number of charges over which convictions were imposed, I have relied entirely on the evidence of the applicant and upon his interpretation of the records made available by the authorities in New South Wales, Victoria and New Zealand. Some of those records refer to appearances to either extend bail or to adjourn the hearing of proceedings. There was some confusion in the interpretation of those records because it was thought that the number of offences could be calculated by regard to the number of court appearances. To follow that path would of course be an error because regard is only to be had to the total number of convictions and the sentences in examining this part of Direction 21 namely, the seriousness and nature of the appellant’s conduct.
26. Another basis upon which to form a view as to the seriousness and nature of the appellant’s conduct is to have regard to the facts and circumstances as found by a sentencing Judge, together with accompanying remarks. In Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234; [1999] FCA 1197 a Full Federal Court (paragraphs 40) decided:
Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence. The starting point for consideration by the Tribunal in relation to sentence, when concerned with the question of an order under s 200 of the Act, must be the findings made by the judge in imposing the sentence that satisfies the statutory description of a sentence of imprisonment for a period of not less than one year.
At paragraph 41 the Court decided:
There are good policy reasons why such a principle should prevail. It could only undermine the criminal process for an administrative decision to be based on considerations inconsistent with the conviction or sentence imposed.
27. Similar authority for adoption of the findings of a sentencing Court is found in Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354; Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441; Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385.
28. The above comments are relevant because the applicant, particularly in so far as the Victorian offences were concerned, sought to implicate other persons (who were never charged) and who he said were responsible in whole or part for the commissioning of the offences by him.
29. In relation to the offences in New Zealand, the applicant said they occurred during a time of economic downturn and instability in New Zealand. He said he had been operating a farming enterprise over real estate with considerable value but from which he became a bankrupt. Judge Woods, the sentencing judge in Victoria, relied on part of the decision of the Court of Appeal in New Zealand in his sentencing (page 96 of G documents) and recorded as follows:
The charges cover the period between January 1990 and March 1993. During this time, the appellant was involved in dealing with various farmers in regard to the purchase, sale, and cartage of hay and related products, and in transactions involving deer and cattle. Typically, the charges alleged that the appellant obtained produce or livestock by falsely representing that he had paid for the goods in question.
According to the court, there were numerous victims, and the sums totalled about $150,000. And, at the time of the commission of the offences, you were an undischarged bankrupt. The Court further noted that there had been no expression of remorse on your part.
30. The sentencing judgment of the District Court of New South Wales was not lodged with the Tribunal. The applicant said that the charge of possession of stolen property which gave rise to a sentence of two years and two months occurred during a time when he was engaged as a relief driver of interstate trucks. He said he was rung at home at night by a fellow employee and directed to collect a truck and drive it to Sydney. He said in the course of driving that truck he was stopped by police and advised that he was driving a stolen vehicle. He said he later learnt that the truck had been stolen from interstate and in New South Wales there was “no defence” to possession of property stolen from interstate. He decided to plead guilty. The charge in New South Wales of having goods on premises reasonably suspected of having been stolen which resulted in a $500.00 fine occurred after the applicant purchased a television, video and ghetto blaster from a garage sale. He said he later learnt that those goods had been stolen from a school. On questioning about that offence it appears that the property was marked with labels identifying a school as the owner. The applicant said that he was aware that the goods were labelled in that manner and they had been purchased from a teacher who lived at the house where the garage sale was conducted. When I suggested to him during the hearing that it appeared that his conduct then was, at best, naïve, his response was that he was “an idiot” and he then did “stupid things”.
31. The charges in Victoria arose out of conduct which had a remarkable similarity to the conduct which gave rise to the offences in New Zealand. It appears that the applicant was in a partnership or corporation with persons named White where they engaged in the trade of hay and other stock feed. Produce of that type was purchased from and sold to farmers, some of which resided in parts of Australia affected by drought. It appears that the business was very profitable yet cheques drawn and signed by the applicant were dishonoured and accordingly he was eventually charged with “dishonestly obtaining financial advantage by deception”.
32. During the course of this review, the applicant said that he had learnt that Mr and Mrs White had transferred monies from their mutual trading account into their private accounts. Consequently the trading account was deficient in funds and he held the belief when he drew and signed cheques that there were sufficient funds in the trading account to honour the cheques that he had written. He said on a number of occasions that he accepts responsibility for the cheques that he signed but also said that the Whites had themselves drawn cheques on the trading account which were subsequently also dishonoured. Despite his complaint and notification of that conduct to police they had never been charged. The applicant also sought to explain that his conduct could be described as a failure on his part to supervise or “oversee” the business.
33. Judge Wood apparently had a dim view of the applicant because in his sentencing judgment he noted (page 94 of G documents):
It is ironic that it was you who approached the police, making allegations against Mr and Mrs White that they had, without authority, withdrawn moneys from various accounts operated by DSC Pastoral. These complaints were investigated and no police action was taken. However, you made a formal complaint as to the method of investigation undertaken by police officers, which complaint was conciliated and resolved. This was an audacious tactic on your part to implicate the Whites by a futile attempt to establish that they had withdrawn moneys from various business accounts, without which, presumably, many of these cheques which you presented would not have been dishonoured.
34. Later, His Honour recorded that the record of interview referred on a number of occasions to the applicant attempting –
. . . to lay the blame for the business’ financial plight upon the withdrawals by Mr and Mrs White. However, I am satisfied, having heard the evidence of Mrs White, Mrs Interlandi, and yourself, that the withdrawals by the Whites from DSC accounts, were in accordance with your mutual arrangement.
35. On balance therefore I regard the dishonest conduct on the part of the applicant to be very serious. A number of vulnerable persons fell victim to his conduct most notably farmers who do not enjoy regularity of income and who, in New Zealand were subject to an economic crisis and in Australia were affected by drought. The explanations for the offences in New South Wales were, in my view, unbelievable and I do not believe the explanations given. I place considerable weight when assessing the character of the applicant upon these offences and am very concerned that the offences in New Zealand were virtually repeated in Victoria. As Direction 21 records, the crimes of serious theft “are of concern because of the amounts of money involved and or the disruption caused to individuals, business and government”. Additionally, it is the view of the Minister (paragraph 2.7) “that the sentence imposed for a crime is an indication also of the seriousness of the offenders conduct against the community”. Consideration also must be given to the extent of the person’s criminal record, the number and nature of the offences, the time between offences and the time that has elapsed since the most recent offence. Consideration should also be given to the repugnance of the crime, particularly crimes involving fraud.
36. In relation to this criteria it is noted that the offences in New Zealand occurred between January 1990 and March 1993 resulting in conviction and sentence in November 1993. The applicant arrived in Australia in January 1996 and commenced to offend in Victoria in 1998. Despite being charged with offences in Victoria and being released on bail, he travelled to New South Wales and committed offences in 2000 and 2001 which gave rise to being charged and sentenced. He returned to Victoria, changed his plea from not guilty to guilty, and was sentenced to a period of five years and three months imprisonment.
37. Between 1990 and 2003, the applicant has spent considerable periods of time in gaol and it must be said during those periods of time when he was not in gaol he spent considerable periods of time committing offences. He has not offended since February 2003 but since that date he has been in gaol. There is a likelihood that his prior conduct may be repeated. I will deal later with aspects of undertakings and activities completed by the applicant since he has been in gaol since February 2003, which are to his credit, however the risk of the previous offences being repeated cannot be discounted. The Minister recorded in Direction 21 (paragraph 2.10) that “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”. Further, it is recorded that where there is a gap or gaps between convictions an inference may be drawn 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”.
38. To his credit the applicant has been engaged in a number of training programs since he was incarcerated in Victoria through the Bendigo Regional TAFE Institute, the University of Ballarat and the Hepatitis Council of Victoria. He has obtained certificates in relation to aspects of hospitality, qualification in the operation and use of tractors and other earthmoving equipment, communication strategies, infectious disease, hepatitis C and infection control, forklift licences, occupational health and safety qualifications in relation to building sites and a B double road train licence.
39. Probably most significant was the completion of a cognitive skills program between March and May 2004. In evidence the applicant said that he sought guidance from the Victorian Parole Board of courses that he should undertake in relation to correction and awareness of his previous behaviour. The course facilitator completed a certificate on 21 May 2004 recording that the applicant had demonstrated insight into his own behaviour and the importance of self awareness, he had commenced a program of “self reflection”, he had expressed interest in prisoner peer education programs and the possibility existed that upon release from prison, the cognitive skills learnt could assist him in positions of advocacy. The certificate issued to the applicant acknowledging completion by him of that program records that it had components of problem solving, thinking skills, self-management, social interaction skills, negotiation and conflict resolution and development of personal goals.
40. This course was of some significance during the hearing because when challenged on a number of occasions of his failure to demonstrate any remorse following the offences committed in New Zealand and in Victoria, the applicant said that he did not understand the concept of remorse, but having completed the cognitive skills program, he could understand the seriousness of his previous behaviour, that farmers were affected and he was distressed when reflecting on his previous conduct. There are many references made by him throughout his Statement of Facts and Contentions to regret that he now felt. However, despite these expressions of regret, put forward as an indication also of remorse, I remain unsatisfied. I would have been more confident that the expressions of regret were truthfully made, if the applicant had not said, as he did, in cross-examination that he remained of the opinion that he was “misled” and “cheated” by Mr and Mrs White. To emphasise this lingering belief, the applicant said “their conduct was not tested in any Court”. There is a good reason for that. They were never charged with any offences. He was, he pleaded guilty and he was sentenced.
41. A number of documents were also lodged recording that the applicant has taken an interest, whilst in prison, in prisoner peer education and advocacy. He has also been engaged in prisoner liaison committee meetings. Those activities have caused him to communicate by letter with the Victorian and New South Wales Ombudsmen, the Victorian Department of Justice and the Victorian Coroner.
42. To his credit also are the references to his behaviour found within a report completed by Ms Vissers, the offender management supervisor of the Langi Kal Kal Prison dated 15 August 2005 following the notice served upon the applicant of the intention to cancel his visa. The report records that the earliest expected release date for the applicant is 25 June 2006 and during his time at Langi Kal Kal Prison, he had been drug tested on a number of occasions without ever returning a positive result. Ms Visser noted that the applicant had completed a cognitive skills program and also noted that the facilitator of that course had recorded that he was a positive contributor to the group undertaking it. Ms Visser also noted that a number of educational and trade type courses had been undertaken at both Langi Kal Kal and the Ararat Prisons. She noted that he had been engaged in farm and bush gang work with other prisoners and was regarded as a “solid and reliable worker displaying an excellent work ethic”. She concluded that the applicant “has not been any management concern”, was a quiet prisoner and was of low security rating. A letter of support was lodged by Mrs Bandel, who the applicant described as a friend and who the applicant had assisted, together with members of her family during occasions of illness. A reference was also lodged by Rev. Brian Worth, a Chaplain with the Anglicare Criminal Justice Ministry. The statement, in very positive terms, praised the applicant and contained an expression of confidence that the applicant, upon release he would “contribute greatly to the community”.
43. On balance, I do place considerable weight upon the risk of recidivism by the applicant, having regard to his past behaviour and the number of convictions. I am also prepared to view favourably, and therefore give some, but less weight, to the positive undertakings by him to achieve, by way of rehabilitation, qualifications and acquisition of personal skills which upon eventual release from prison could assist him to positively contribute to the community. I would also give some weight to the favourable comments about the applicant made by other persons.
44. In concluding this part with respect to the protection of the Australian community, it is likely in my view that cancellation of the applicant’s visa may prevent or discourage similar conduct by other persons in an equivalent position. I note that the Minister regards deterrent, whilst not being conclusive, as an important factor in determining whether to cancel a visa. It would be desirable of course that persons in a similar position to the applicant be deterred from committing offences if they comprehend that their visa may be cancelled by them committing and being convicted of similar offences. Failure to cancel the visa may also send an undesirable message to other non-citizens (refer Re Pizlea and Minister for Immigration and Multicultural and Indigenous Affairs [2000] AATA 49 at paragraph 58).
the expectations of the australian community
45. Paragraph 2.12 of Direction 21 records that the Australian community has an expectation that non-citizens obey Australian laws. The paragraph continues that if there is a significant risk of a breach of trust or where a non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to cancel the visa. Cancellation is considered to be appropriate because the concerns with respect to a non-citizen’s character may give rise to an expectation on the part of the Australian community that such a person should be removed from Australia.
46. Considerable weight must be given to this part of the Direction and it is my view that members of the Australian community would be very concerned about the applicant’s behaviour. In context he is a person who entered Australia shortly after he completed a gaol sentence in New Zealand for multiple offences of dishonesty against vulnerable farmers. Shortly after arriving in Australia he repeated the type of conduct he displayed in New Zealand and eventually was charged with 36 offences for which he pleaded guilty. He also committed offences of dishonesty in New South Wales. As a non-citizen of Australia he was allowed to enter by the inherent permission of a visa yet it was later learnt that he had been dishonest in his entry card into Australia because he had falsely declared that he had not previously been convicted. The explanation given at the hearing by him was either that he was confused or because he was then intending to come to Australia for a holiday, he did not believe that recording his offences was necessary. That explanation beggars belief and I do not believe it. In the exercise of the discretion required of me under this Direction, I place considerable weight upon the likelihood of an expectation on the part of the Australian community that multiple offences of dishonesty are particularly repugnant when they are initially committed in a person’s country of origin and then repeated into the country who has issued a visa. The reasonable expectation of obeying the laws of Australia was not fulfilled by the applicant.
47. With respect to this criteria under Direction 21 I attach considerable weight to the expectation that I believe would be held by the Australian community that the applicant, by reason of his prior offences, should have his visa cancelled and therefore be removed from the Australian community.
best interests of a child
48. The applicant is the father of two children from a previous marriage in New Zealand. Both children are now adults and it would appear that they are estranged from him.
49. In Australia, the applicant is the father of a child, Cody, born 31 March 1999 and presently aged seven years. Cody’s mother is Jane Elizabeth Howard born on 16 April 1974 and who is presently aged 32 years.
50. Whilst I will refer to the relationship between the applicant and Ms Howard later and the impact upon that relationship of any visa cancellation, the applicant agreed that Cody was born before he was sentenced in New South Wales. He said that he also lived with Cody from March 1999 until 2001 when he was convicted and sentenced in New South Wales but when pressed on this issue it appears that the applicant did not live with Ms Howard on a full time basis. Accordingly he did not live with Cody on a full time basis (Ms Howard had the full time custody of Cody). The applicant said that he was an interstate truck driver. He said he rented a flat in New South Wales, was minding a property at Clarkefield on the outskirts of Melbourne and kept items of personal property at those locations as well as truck yards where his trucks were kept. Other items of personal property were also kept in his truck. He estimated that in the period March 1999 when Cody was born until 2001 when he was sentenced in New South Wales, he lived with Ms Howard for a period of 16 or 17 months yet it was also acknowledged that in that time he was frequently driving at night. It therefore follows that he would have been away from those premises and would therefore have also been away from Cody. The address recorded on his driver’s licences (car and truck) was not the address of Ms Howard.
51. Cody would have been very young when the applicant commenced his sentence in New South Wales and would not have been much older when he commenced his sentence in Victoria. Indeed at February 2003 when the Victorian sentence commenced, Cody was one month short of four years of age. Since that sentence commenced, the applicant has not seen Cody. Ms Howard has not ever visited the applicant in any of the gaols where he has resided and it follows that she has not taken Cody to gaol to visit him. The applicant said that he speaks with Cody on the telephone on approximately two occasions per week.
52. The criteria within Direction 21 with respect to the matters to be considered in this part, when exercising the discretion are without controversy (paragraph 2.15) namely, “in general terms the child’s best interests will be served if the child remains with its parents”. However, since February 2003, the applicant has been in gaol and Cody has not seen him or communicated with him except by telephone. When the applicant entered prison, Cody was barely four years of age and is now seven years of age. Before the Victorian sentence commenced, the applicant was not in gaol but had previously spent a period of time in gaol in New South Wales after Cody had been born. In Cody’s lifetime he has spent a relatively short period of time in total with the applicant. It must be noted that during the occasions when he has not been incarcerated, the applicant has been engaged in interstate truck driving which is notoriously known for working long hours and being away from home.
53. I note that Cody is an Australian citizen who has spent all his life in Australia, who attends a school in Australia and I would presume has friends here. There would be no language and few, if any, cultural barriers by him living in New Zealand but for reasons recorded later I am not satisfied that Ms Howard, being the custodial parent, would be prepared to travel to New Zealand. Whilst of course it would be desirable for a relationship to be established between the applicant and Ms Howard in which Cody could enjoy and be reassured by a stable, caring and loving environment, that objective in my view will not ever be achieved. Accordingly, Cody’s best interests would be achieved if he remained in Australia with Ms Howard. I do not believe that his interests would necessarily be affected if the applicant had his visa cancelled thereby causing him to return to New Zealand.
other considerations
54. The relationship between the applicant and Ms Howard is a considerable matter deserving attention.
55. The applicant said that he regarded the relationship as being “romantic” because he telephones her almost daily and he regarded her as his partner. He said that their relationship was exclusive but did acknowledge that whilst he was in custody, awaiting sentence in New South Wales, Ms Howard had been engaged in a relationship with another person and a child was born of that relationship on 29 August 2001. Nonetheless it was his belief that she had not been had a relationship with any other person for the last 12 months. It was the applicant’s belief that his relationship now was “exclusive”. He agreed that Ms Howard had not ever visited him whilst he had been in gaol but said that it would have been impossible for her to do so because she does not hold a driver’s licence. Additionally, she was the mother of three children (another child was born in 1993) and he did not regard gaols as appropriate places for children to visit.
56. The applicant acknowledged that Ms Howard would prefer not to live in New Zealand in the event that his visa was cancelled, that the father’s of the other two children also resided in Australia and she had family members who also resided here.
57. In an interview between Ms Howard and Ms Doyle, an officer of the Respondent department on 25 November 2005, Ms Howard is recorded as having stated that the applicant was an interstate truck driver who “stayed on a regular basis but not enough to affect her single parent pension”. The note recorded by Ms Doyle, apparently reciting a comment made by Ms Howard, was “someone can stay five nights per fortnight without it affecting the pension”. The relationship was described as “on and off for a period of years” after Ms Howard and the applicant met in 1997 or 1998. Contact between them occurred on three or four days per week by telephone. Ms Howard said that she would not accompany the applicant to New Zealand if his visa was cancelled.
58. A short time prior to the hearing of this application a directions hearing was convened where I expressed my concern to the applicant that there was an absence of any material before the Tribunal from Ms Howard personally. I indicated to him that Direction 21 was in part concerned with the affect upon relationships, no less a relationship between parents of an infant child. The hearing was adjourned to permit the applicant to communicate with Ms Howard either directly or through his solicitors to have her lodge a statement with respect to their relationship and hopefully have her give evidence at the hearing. By way of assistance to the applicant, I arranged for the District Registrar of this Tribunal to contact a solicitor who had been assisting the applicant to advise him that he would be approached and asked to obtain a statement from Ms Howard. A short time later a written communication was received from that solicitor that he was no longer assisting the applicant. A statement was not ever lodged by Ms Howard. At the hearing, the applicant said that on the last day permitted under the Act for the lodging of statements, Ms Howard in fact did fax a statement to Mr Wee the solicitor for the respondent and to the Administrative Appeals Tribunal. He said that Ms Howard had a copy of a facsimile receipt. He did not have a copy of that receipt, he did not have a copy of her statement and he did not know its contents.
59. As a fact, I am not satisfied that such a statement was ever prepared or if it was that it was ever forwarded by facsimile transmission. I am disappointed that the hearing of this application was adjourned in large part to permit the applicant to obtain evidence in support from Ms Howard which was not forthcoming. A more than reasonable inference is entitled to be drawn that Ms Howard is not prepared to support the applicant. Indeed since May 2005 when the applicant was notified of the Minister’s intention to consider cancellation of visa, there has not been one single document initiated or generated by Ms Howard in support of the applicant. In all of those circumstances I conclude that in the event that the visa of the applicant was cancelled, Ms Howard would not be prepared to travel to New Zealand. The relationship of course is not “romantic” presently as the applicant would assert and subsequent to his incarceration the relationship has not been exclusive between Ms Howard and him. They have not communicated for the last three years except by telephone and I do not accept that she has been prohibited from visiting him in gaol because she does not have a driver’s licence. Arrangements could have been made for other persons to temporarily look after the children and for her to either obtain transportation from another person or travel herself by public transport.
60. I could not find with any confidence that in the event of the applicant being permitted to stay in Australia that a relationship with Ms Howard would recommence which would be to their benefit and to the benefit of Cody. Ms Howard is not dependant on the applicant for financial support and emotional support, if any, is secured through telephone communication only. It is my view that in the event that his visa is cancelled there would be little, if any, hardship caused to her.
conclusion
61. The Statement of Facts and Contentions lodged by the applicant and which he adopted as his evidence-in-chief, and which he largely recited in whole by way of closing submissions, contained a litany of complaints against the Respondent department, QBE Insurance being the work cover insurer, the Accident Compensation Commission and, or, the Victorian Workcover Authority and a number of other agencies.
62. The Respondent department was the subject of criticism because by its decision to notify of an intention to cancel the visa, the applicant believed he would be likely to endure a period of incarceration beyond the expected parole release date. That criticism had no merit because it was never the intention of the Respondent department to have the applicant remain incarcerated beyond that date. He will not serve any period greater than the minimum non-parole period as decided by the sentencing judge. The complaint was irrational as was his other complaints that there had been a failure on the part of the Minister’s delegate to comprehend the difficulties that he had had with the work cover insurer and with the work cover authority in relation to his entitlements to benefits and medical like expenses whilst a prisoner. That is to say it was his belief that the exercise of the discretion made in the decision to cancel the visa was either improperly or negligently made. That view is unwarranted but I would repeat that this review is a hearing de novo. There was evidence before the Tribunal of the applicant having a continuing entitlement to benefits under the Victorian Work Cover legislation in the event that he was a resident of New Zealand. Of course he would need to satisfy provisions of the Work Cover legislation that his entitlement to medical and like expenses were “reasonable” but that requirement exists whether he is a resident of Victoria or New Zealand. Of course it may be administratively difficult for him to pursue his rights and participate in conciliation conferences if he resides in New Zealand but with the assistance of suitably qualified persons in Victoria and, or through the facilities of modern telecommunication facilities, there is no reason why the applicant could not pursue his rights and have those rights satisfied.
63. Equally disappointing were the complaints made by the applicant of the delegate failing to consult with the workcover authority, failing to give “a warning” and acting with bias. I presume these complaints were intended to bolster a contention of the delegate failing to properly exercise the discretion when deciding whether to cancel the visa. I am satisfied there was nothing improper in the decision-making process, but I would again emphasise this review is not an examination of that process. It is a review only of the decision to cancel the visa.
64. The applicant said that he preferred to remain in Victoria and intended in the event that his application was successful to remain a citizen of Australia because in his view, Victorian doctors were the best in the world. He was effusive in his praise for the treatment that he had received and believed that his future treatment would best be served by the opportunity to consult with doctors in Victoria. I am not satisfied that he would be disadvantaged in the context of future medical treatment in the event that he returned to New Zealand. There is nothing to indicate that the level of treatment available in New Zealand or the facilities or skill of members of the medical profession are any less than those in Victoria. I am not satisfied that he would be disadvantaged.
65. The applicant does have some cousins and some nieces in Australia as well as a number of friends. Ms Howard, her family members and Cody of course also reside in Australia. Yet his mother, three cousins, an aunt and one of his two daughters from his first marriage all reside in New Zealand. The other daughter now resides in Canada. His return to that country would not cause any difficulties of assimilation or with verbal communication. He was born, educated and worked in New Zealand until he travelled to Australia at the age of 43 years. The New Zealand culture and lifestyle would be familiar to him and he would not, in my view, be disadvantaged by returning there.
66. I regard the offences in both New Zealand and subsequently in Australia as being of a very serious nature. In the exercise of the discretion required under Direction 21 it is my view that the weight that should be attached to the applicant’s prior criminal conduct, the protection of the Australian community (being the risk of recidivism) and the expectation of members of the Australian community overwhelms, by a considerable margin, the weight that should be given to him by way of credit for the initiatives that he has undertaken with respect to rehabilitation and the favourable comments made by others.
67. In all of the circumstances I am satisfied, although for reasons expressed differently, that the decision under review made by the Minister’s delegate should be affirmed.
I certify that the 67 preceding paragraphs are a true copy of the reasons for the decision herein of –
Mr John Handley, Senior MemberSigned: .....................................................................................
Personal AssistantDate of Hearing 20 April 2006
Date of Decision 24 April 2006
Solicitor for the Applicant Self Represented
Solicitor for the Respondent Mr Bryan Wee, Australian Government Solicitor
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