BRADLEY and MINISTER FOR IMMIGRATION AND CITIZENSHIP

[2011] AATA 646

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 646

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No 2011/2591

GENERAL ADMINISTRATIVE DIVISION		)
Re		RICHARD ALEXANDER BRADLEY

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Ms Regina Perton, Member

Date15 September 2011

PlaceMelbourne

Decision The Tribunal sets aside the decision under review and remits the matter to the respondent with the direction that the discretion to cancel Mr Bradley's visa pursuant to section 501(2) of the Migration Act 1958 not be exercised.

...................[sgd]...........................

Member

MIGRATION – Citizen of the United Kingdom - Class BF Transitional (Permanent) visa - cancellation - conviction for serious offence - character test - exercise of discretion

Migration Act 1958 ss 499(1), 499(2A), 501(2), 501(6), 501(7)

Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198

Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN No 81

REASONS FOR DECISION

15 September 2011 Ms Regina Perton, Member           

1.Richard Bradley was born in Scotland and is a citizen of the United Kingdom.  He migrated to Australia at the age of 10 months in 1965 with his parents and elder sister.  Apart from short overseas holidays in 1994 and 1996, he has remained in Australia since the family migrated.  He is now 46 years old.   

2.Mr Bradley was convicted of murder and sentenced on 20 December 1999 to 17 years’ imprisonment with a non-parole period of 13 years.  An appeal against the conviction was dismissed on 28 November 2001.  Mr Bradley was released on parole on 14 June 2011. 

3.On 20 June 2011 a delegate of the Minister for Immigration and Citizenship (the Minister) decided to cancel the Class BF Transitional (Permanent) visa held by Mr Bradley because he did not pass the character test set out in the Migration Act 1958 (the Act) due to his criminal record.   Mr Bradley was served with the notice of cancellation on 23 June 2011 and has since been held in immigration detention.

4.Mr Bradley maintains that he did not commit the murder.  However, the Tribunal is unable to go behind the conviction and sentence.  The Tribunal must decide whether to exercise the discretion not to cancel Mr Bradley’s visa despite his failure to pass the character test.  This involves an assessment of a number of prescribed considerations set out below. 

LEGISLATIVE BACKGROUND

5.Section 501(2) of the Migration Act 1958 provides that the Minister may cancel a visa granted to a person if the Minister is satisfied that the person does not pass the character test. There are several grounds set out in s 501(6) of the Act, which if met lead to a failure of the character test. The ground applicable in this matter is found in s 501(6)(a):

(a)       the person has a substantial criminal record (as defined by subsection (7));...

Section 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.

6.Under s 499(1) of the Act the Minister may give directions to a person or body performing functions or exercising powers under the Act; directions with which, in accordance with s 499(2A), the person or body must comply.

7.On 3 June 2009 the Minister, exercising powers under s 499(1) of the Act, issued Direction [no.41] – Visa Refusal and Cancellation under s 501 (Direction 41). It came into operation on 15 June 2009.  The Direction provides guidance to decision-makers in making decisions to refuse or cancel a visa under s 501 of the Act, including the exercise of the discretion to decide whether a non-citizen should be permitted to enter or remain in Australia in circumstances where that person does not pass the character test.

8.Paragraph 9 of Direction 41 requires decision-makers to take into account four primary considerations in every case.  These are set out in paragraph 10(1):

(a)the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;

(b)       whether the person was a minor when they began living in Australia;

(c)the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and

(d)       relevant international obligations, including but not limited to:

(i)the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and

(ii)the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

9.Paragraph 11 of Direction 41 provides that Other considerations (not primary considerations) be taken into account.  These include family ties, the person’s age and health, any links to the country to which the person would be removed, hardship to the person or the immediate family lawfully resident in Australia, the person’s  level of education, and whether the person has been advised previously of the deportation or character provisions of the Act.  Paragraph 11 also notes that these considerations should generally be given less weight than primary considerations.

MR BRADLEY’S FAILURE TO MEET THE CHARACTER TEST

10.Mr Bradley concedes, and the Tribunal finds, that he has a substantial criminal record and therefore fails to meet the character test.

THE FIRST PRIMARY CONSIDERATION: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM SERIOUS CRIMINAL OR OTHER HARMFUL CONDUCT

11.Paragraph 10.1(2) of Direction 41 provides that factors relevant to assessing the level of risk to the community include:

(a)       the seriousness and nature of the relevant conduct; and

(b)       the risk that the conduct may be repeated.

Seriousness and nature of the conduct

12.Paragraph 10.1.1(1) of Direction 41 specifies that crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community, and that crimes involving violence are especially abhorrent to the whole community.  Murder is obviously an example of an abhorrent and serious offence.   

13.Paragraphs 10.1.1(3) to (5) of Direction 41 require decision-makers in exercising the discretion to take into account a number of other factors.  The sentence imposed for an offence is considered indicative of the offender’s conduct against the community.  Regard must also be given to the number and nature of the offences, the period between offences and the time that has elapsed since the most recent offence.  Other factors to be considered include relevant information including, but not limited to, evidence from independent and authoritative sources, such as judicial comments,  professional psychological reports or parole assessments. 

14.Mr Bradley’s criminal history is as follows:

Court	Date	Offence	Court Result
Victorian  Supreme Court	08 Nov 1999	Murder	Imprisonment 17 years
Victorian County Court	04 Apr 1991	Theft (2 charges) Go Equipped To  Steal/Cheat (2 charges)	All counts Community Based Order for 18 months to perform 150 hours
Broadmeadows Magistrates Court	19 May 1986	Assault by Kicking Assault Police/person Assisting Police Drunk in a Public  Place Assault Police/person Assisting Police	Fined $250 Fined $200 Fined $50
Albury District Court	15 Dec 1983	Break Enter & Steal (2 counts)	Imprisonment 17 years Convicted.  Released on entering recognizance self $1000 to be of good behaviour for 3 years.  Pay compensation: $1066.

15.Mr Bradley appealed his conviction and sentence for murder but on 28 November 2001 the Court of Appeal dismissed the appeal.  Mr Bradley’s 522 days of pre-sentence detention was taken into account in calculating his eligibility for parole.  He was paroled on 14 June 2011.

16.Mr Bradley and the widow of the victim were found guilty of murder by a jury.  The jury found that Mr Bradley accepted a contract from the man’s wife to kill a man barely known to him.  The victim’s wife worked with Mr Bradley’s partner.  The victim was killed with a bullet wound to the head. The bullet was linked to a sawn-off rifle owned by Mr Bradley.  Mr Bradley conceded that he had visited the victim on the night of the killing while his partner and the victim’s wife were socialising.    Before the killing the victim’s wife withdrew money from the bank.  Mr Bradley paid cash for car repairs with high value notes the following day. This was another piece of circumstantial evidence.  The sentencing remarks of Vincent J included:

In your case, Richard Bradley, the jury has found that you killed the deceased…

Your motivation for engagement in this crime was a desire to secure financial gain from its commission.  This is perhaps, of all possible reasons for the destruction of human life, one of the most ignoble…

17.Ormiston J.A., in the Court of Appeal, refusing the appeal, pointed out that:

…The evidence in support of the prosecution case was entirely circumstantial.  Indeed, there was no obvious motive for the murder, other than a suggestion that it was done for money.  Arguably the most significant element in the Crown case was the fact that it was the applicant’s gun, kept in his bedroom drawer, which was used to shoot the deceased.  There was also evidence that he sought to mislead the police when first questioned by saying at that time that he did not know how the deceased had been killed and further that he had sought to dispose of the murder weapon quickly by sending it to Bendigo…

…

The factual basis for the applicant’s conviction can be seen in the evidence given at the trial which, of course, was a trial both of the applicant and of …[the victim’s wife].  The judge gave appropriate instructions to the jury…

18.Mr Bradley described the circumstances surrounding his previous convictions.   The first offence, when he was 18 years old, involved him and his equally drunken housemate breaking into a liquor store by throwing bricks through a window.  They stole whisky, bourbon and other preferred beverages.  He and his friend were arrested two days later.  Mr Bradley pleaded guilty.  He was released on a good behaviour bond and paid compensation for the losses incurred by the store. 

19.Mr Bradley said the second offence occurred in 1986, on the night of his 21^st birthday celebration.  He and a friend were heading to the nearby convenience store to replenish the supply of soft drink.  Mr Bradley was a passenger in his own car which was driven by a sober guest.  Another car cut off Mr Bradley’s car and when they stopped, he remonstrated with the other driver.  The convenience store was near the police station and the other driver, whom  he assaulted, turned out to be an off-duty policeman heading to work, with the assault taking place in front of the police station.   Given the lightness of the sentence, it seems unlikely that the assault was at the serious end of the spectrum.

20.The next conviction, some five years later, involved theft of equipment from VicRail. Mr Bradley worked for VicRail at the time as a shunter.  A group of other workers regularly took items from the store and, on one shift, Mr Bradley joined them.  He stored the items, which he intended to use personally, in his own garage.  The police investigated everyone on that shift.  Mr Bradley was caught and received a community based order.  He lost his VicRail job.  His community service comprised scraping tar from the hull of a museum ship.

21.The Minister’s representative described Mr Bradley’s first three convictions as relatively minor.   Mr Bradley expressed his regret at those convictions.  However, his murder conviction with a 17 year sentence is clearly a serious and abhorrent crime.  Mr Bradley has expressed regret at the death of the victim but no remorse because he stated that he did not kill him.

Risk that the conduct may be repeated.

22.Paragraph 10.1(2)(b) of Direction 41 requires the Tribunal, when assessing the risk of harm to the community, to consider the risk that the conduct may be repeated.  That factor is amplified by paragraph 10.1.2, which directs the Tribunal’s attention to the person’s previous general conduct and total criminal history, evidence of breach of judicial orders, evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation.

23.The written and oral evidence before the Tribunal indicates that Mr Bradley conducted himself as a model prisoner.   He became a mentor to younger prisoners.  While in prison he completed several programs including as a workplace trainer, an Introduction to Psychology, a Prisoner Listener Program, an Intellectual Disability Mentoring Program and an Odyssey House Harm Reduction Program.   He worked as a cook at one prison and a gardener at another.  He maintained a strict fitness regime.   There were no adverse reports on his behaviour in prison.   As a serious offender, he was initially housed in a high security prison but was downgraded in 2002 to a lower security prison and ultimately to an open prison farm.  He was allowed contact family visits for the last few years of his sentence.   Prison records indicate a long list of visitors including his wife, children, stepchildren, siblings and friends.

24.In September 2010 Mr Bradley was selected to participate in an intensive re-integration program for long-term prisoners at the Judy Lazarus Transition Centre (JLTC).  He served the last nine months of his sentence at this facility, which houses only 25 prisoners at a time.  He was granted leave on numerous occasions while at JLTC. He was initially escorted but after the first month was unsupervised and unescorted, although he was accountable at all times to his supervisors in terms of particular locations and times.  He undertook work experience, community work and study.  He obtained a number of employment- related qualifications, including a forklift licence and a heavy rigid truck licence.  He completed a dogging course and basic and intermediate rigging courses.  His periods of leave became longer as time went on.  During the week Mr Bradley was required to stay at JLTC at night.  In the month before parole, he had four periods of 48-hour home leave from Saturday morning to Sunday night. 

25.Ms Megan McClelland, then Acting Senior Transition Officer at JLTC, provided a statement on 1 July 2011 in which she stated, amongst other things:

...The centre accommodates 25 prisoners who are within the final 12 months of their sentence.  Most importantly, to be considered suitable for JLTC prisoners must be assessed as having a low security risk and significant transitional needs that can be addressed through unescorted permits in the community.  The carefully selected few that are classified to the centre must have demonstrated good behaviour in custody and have participated in all required offence-specific treatment programs.  A risk assessment is conducted prior to transfer and monthly during their placement at JLTC to ensure that, their placement does not place the community at risk.

Mr Bradley completed all escorted and unescorted permits without incident.  He was very proactive and motivated in completing education and vocational training to assist with employment post release…He was compliant and committed to moving through the transition program and was highly motivated and committed to achieving his goals…

…Mr Bradley places his interpersonal relationships as a high priority in his life and the writer has no doubt he will continue to strive to strengthen his family relationships… 

The writer considers that Mr Bradley’s removal from Australia will be counterproductive to his transition into a supportive community and family.  Towards the final months of his sentence, Mr Bradley was spending the majority of his time unescorted in the community.  Mr Bradley demonstrated he is motivated and has the ability to have a successful offence free life upon release.

26.Ms McClelland, who is now the Acting Manager, Systems and Planning, Sentence Management Branch in Corrections Victoria, confirmed that she still held the same views of Mr Bradley.  She said that only 0.5% of Victorian prisoners have the opportunity to participate in the JLTC program.  The criteria for selection include a sentence of three years or more and a history of good behaviour in prison.  The risk assessment process for special category prisoners (such as those convicted of murder with lengthy sentences) before they can enter the JLTC program includes individual assessment by a Ministerial Advisory Committee, which includes representatives of Victoria Police and members of the community.   Mr Bradley was assessed regularly throughout his imprisonment, and before going to JLTC had achieved a rating allowing him to be housed in a minimum security prison.  To achieve that rating, the relevant overseeing committee had to be confident that the prisoner was not a risk to community, jail staff, other inmates or himself.   To date, the likelihood of a return to prison by those completing the JLTC program is far lower than that of other prisoners.

27.

Sister Mary O’Shannassy, Director, Catholic Prison Ministry Victoria, provided a statement dated 17 July 2011.  Sister O’Shannassy stated that she first met

Mr Bradley when he came into custody and maintained contact with him until his release from the JLTC.  She indicated that she had many conversations with

Mr Bradley in prison over the years.  Her assessment and history of his time in prison includes the following:

..After the initial stages of settling into prison routine himself Richard soon turned his efforts into supporting others.

During the years he took opportunity to train for various supportive role [sic] within the prisons where he was resident e.g. at Port Phillip Prison he undertook training to be a Prison Listener.  This enable [sic] Richard to listen to other prisoners who were e.g. challenged by the environment, had received messages of serious illness or loss within their family especially if it was after the counsellors and Chaplains had left the prison.  This role he fulfilled at both Port Phillip Prison and Loddon Prisons.

At the Loddon Prison Richard also undertook training as a mentor for the intellectually Disabled residents.  He was one of two mentors in a cottage style accommodation for 2 intellectually disabled men.  This involved, amongst other things, of assisting the men to learn to care for themselves e.g. their personal hygiene, caring for their clothes etc, caring for their clothes etc, caring for their home and assisting them to contribute with learning to prepare for and cook a meal, learn table manners, clean up etc.

I experienced Richard to be very supportive of men who came to prison for the first time…

At Dhurringile Prison Richard was involved in Community work within the community.

…

Richard has also struggled in his last year at Dhurringile and the Judy Lazarus Transitional Centre with his wife being diagnosed with cancer.  He was really concerned for their child as well as for his wife and endeavoured to do all that he could to assist from a distance.  This challenge continues for Richard and for his family.

I would respectfully request that consideration be given to the above as you discern a way forward for Richard and for his future as a citizen who has the potential to contribute positively to the society in which he lives.   

28.The Parole Board determined it was appropriate to grant Mr Bradley parole on his first eligible date.  The conditions include advising of change of address or employment and reporting at least twice a week to the supervising community corrections officer.   His parole expires on 14 June 2015.  

29.Mr Bradley started work on the day following his release on parole.  He obtained a position with MCG Cranes and worked up to and including 23 June 2011, the day he was notified of the cancellation of his visa and pending deportation. 

30.The Tribunal notes the following sentencing remarks by Vincent J in which he expressed the view that Mr Bradley’s prospects of rehabilitation were good: 

You, Richard Bradley, are married and aged 44 [sic] years.  There are no children born of your present marriage, but you have two children from an earlier relationship.  Your own family background is unfortunate, with your parents separating when you were quite young.  You were placed in foster care for about a year when you were ten years of age and placed into Baltara [a children’s home] when you were aged 12.  It appears that you were there subjected to sexual abuse.  You returned to live with your own mother and father when you were about 13. 

Upon leaving school you commenced employment with the Victorian Railways where you remained for eight years.  You have changed employment twice over the years that followed and it seems you were in constant employment until you sustained an injury playing football about eight weeks prior to the killing of the deceased.

I am prepared to accept, on the basis of a number of matters, including the written references which were tendered on your behalf in the course of the plea, your employment history, your history as a member of the Army Reserve, your participation in local sporting and other activities, and the assistance you have provided to other inmates during your period of detention on remand, that you have generally conducted yourself as a person of good character.  In a number of senses I consider that you have done rather well overall on the basis of your unfortunate background. 

Your prospects of rehabilitation must be considered against that background and accordingly I regard them as good.

31.

Dr Nigel Strauss, Consultant Psychiatrist, prepared a report dated 29 August 2011 at the request of the Minister’s representative. Dr Strauss’s opinion about

Mr Bradley was expressed in the report as follows:

…

From a psychiatric point of view I have no doubt that this man does not have a psychiatric illness and I do not believe that a psychiatric illness has influenced his behaviour in the past.  In other words I do not believe that this man has a past psychiatric history and I do not believe that currently he has a psychiatric illness.

I believe that this man is genuine in his attempts to rehabilitate himself and I believe that he has shown that he can work following his release from jail and I believe that he has a genuine desire to continue in employment.

I was also left with the impression that he has a genuine desire to be with his family and support his family and I note an extended family and I note that he has three natural children and two natural grandchildren apart from step children and step grandchildren.  It was my impression that he is close to all members of his family and I note that he has formed an acceptable relationship with his stepfather.

He claims that his stepfather was violent and abusive and I have no argument with this but it does appear that Mr Bradley now maintains a reasonable relationship with that man as well as maintaining a good relationship with his mother.

…

I could not determine any significant risk from my point of view, that this man might post to the Australian Community should he be allowed to remain living in the Australian Community.

I believe that this man has genuine family associations in this country and I believe that he has proven that his rehabilitation prospects are good.  I believe that if he were to be deported to the U.K. this would probably cause significant emotional difficulties, not only for Mr. Bradley, but also for his immediate and extended families.

I believe that Mr Bradley had a difficult childhood and adolescence but I do not believe that they have resulted in the development of a psychiatric condition in this man.

He does not require any treatment from my point of view.

32.

In his oral evidence, Dr Strauss said that he cannot guarantee that there is no risk of recidivism in any matter.  He said that he does not know the statistical risk but commented that each person needs to be assessed as an individual.  He maintained his opinion that from a psychiatric point of view, there was little likelihood that

Mr Bradley would re-offend.  Dr Strauss said that the indicators point to Mr Bradley being a good prospect for continued rehabilitation.  Dr Strauss commented that

Mr Bradley’s difficulties in his formative years with his stepfather and his subsequent reconciliation with him was a positive factor, demonstrating Mr Bradley’s resilience and ability to cope. 

33.The many family and friends of Mr Bradley who provided statements to the Tribunal expressed the unanimous view that they did not believe there was a risk that Mr Bradley would re-offend. 

34.The Tribunal also had statements from Mr Bradley’s former employers and colleagues.  Mr Luke Squire, Project Manager of Prime Projects Construction Australia Pty Ltd provided an undated statement in which he described Mr Bradley as being very hard working and a highly competent employee.  Mr Squire originally gained Mr Bradley’s employment through JLTC and was immediately impressed.  He went on to state:

Over the time that Rick worked with myself, we got to know each other fairly well.  I was convinced that considering Rick’s past history, he was a changed man…I could see how hard he worked both on the job and at getting his life back together.  I was convinced that this is his only intention and hence attempted to gains Rick full time employment when he was released.  Rick however was interested in gaining employment with cranes and hence I provided reference to MCG cranes, eventually becoming Ricks employer.  I have since spoken to Mick from MCG and he confirmed that Rick was an excellent employee and “got on really well with the other boys” and subsequently was very disappointed to hear of his current circumstances.  As was I.

I wish to confirm that it would be huge mistake to keep detaining Rick Bradley or not issue residency to him for Australia.  I believe he has much to offer to our society.  He…can offer so much to an industry where workers like himself are becoming very rare.  We need more like him, and to lose one more would be both a waste and a disappointment. 

35.Mr Mick Martin, Director/General Manager of MCG Cranes, provided a statement dated 6 July 2011 in which he stated that Mr Bradley had been working alongside his employees at a building site in Brunswick as a trainee dogman over the previous few months.  Mr Martin said that he interviewed Mr Bradley in relation to another building site:

I was impressed by his honest account of his past and his plans for the future and at that point thought he would be a good employee as he was so keen to get to work, learn a new trade and start again.

He started work at one of our construction sites in Camberwell.

I made regular inquires as to his progress, both with the men he worked with and staff on the job.

I was a little surprised as to how highly everyone spoke of him, how keen he was to work, how keen he was to learn and how popular he was.

Rick’s mother contacted me to tell me why he would not be at work.

I indicated to her that if the outcome was favourable I would have no hesitation to have Rick back on our team…

36.Mr David Lee, a co-worker of Mr Bradley’s at MCG Cranes, provided a statement dated 27 August 2011 in which he stated, amongst other things, that: 

Richard was an enthusiastic worker and was always keen to learn more about his type of work.  He was punctual, attentive, and obviously showed a desire to get on with his life outside for the betterment of himself and his family.  I know that his position is still available.  Richard earns a good income from this job and consequently would not be reliant on welfare.  He would be able to support his family and would be a happy taxpayer.

I am writing this because I found Richard to be a decent person having a good demeanour.  After spending 13 years in confinement he was released and was able to find a job, only to have his life derailed again.  I therefore implore you to show compassion and give Richard a chance to prove to his family and the community that he can be a decent member of society.

37.Mr Michael Egan, the crane co-ordinator and OH&S representative for a large building company, Hansen and Yuncken, provided a statement dated 29 August 2011.  He stated that he conducted the induction for Mr Bradley on 15 June 2011.  Mr Egan stated that Mr Bradley was candid about his past and was shaping up to be a top and confident crane crew member.  He also stated that Mr Bradley’s job remained open and said that he and his workmates sincerely hope this decision to have Richard detained by Immigration, be reversed in this nation of a fair go.

38.Mr Bradley has been employed since leaving school after completing Year 10.  He worked first in a tallow factory, then for a company making billiard tables and then as a shunter at VicRail for several years.  At VicRail he was promoted to a supervisory role until he lost his job as the result of the theft.  After leaving VicRail, he worked at Kraft Foods as a storeman and moved up through the ranks to a more senior position.  Apart from two months off work, due to a broken hand sustained playing football, he appears to have been working all his life between leaving school and being charged with murder. 

39.The Minister’s representative provided the Tribunal with reports including Recidivism Rates in a Custodial Population: the Influence of Criminal History, Offence and Gender Factors, Stuart Ross and Tricia Guarnieri, February 1996, Criminology Research Council Grant 35/89.  The authors examined recidivism patterns of 838 offenders on their release from Victorian prisons between May 1985 and December 1986, for a period of seven and a half years.  Amongst the findings were that recidivism rates decline with age; persons imprisoned for property offences were more likely to re-offend; and that the age of first offence/conviction was a strong correlate to recidivism, namely the younger the person was first time round, the more likely they would be re-convicted.  The research showed that a high proportion of re-convictions were within the first year of release.  The report notes that homicide offenders’ re-conviction rates were markedly below the sample average.  

40.In Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN No 81 Davies J held that even if the risk of recidivism is not high, it will strongly support deportation (or visa cancellation) when recidivism, if it does occur, may cause great harm.  In Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198 the Full Court of the Federal Court held that a real risk of recidivism is one that is not far fetched or fanciful, and can include a low or minimal risk.

41.In considering the likelihood of recidivism the Tribunal finds that the offence for which Mr Bradley was convicted in 1999 was extremely serious. However, his earlier offences were at least 20 years ago and he did not receive custodial sentences for those offences. 

42.The evidence from Ms McClelland, Sister O’Shannassy and Dr Strauss was that they did not believe Mr Bradley would re-offend.  Mr Bradley’s record in prison is unblemished.  He was chosen to participate in a highly sought after rehabilitation program, selection for which included risk assessment by an independent Ministerial advisory committee.  He has been at large in the community while at JLTC without incident and in total compliance with the schedule he had provided to the management of JLTC.   The Parole Board has granted Mr Bradley parole on his earliest eligible date.  He will be subject to supervision until mid-2015 while on parole.

43.Mr Bradley has a close and supportive family.  Employers and work colleagues as well as family and friends describe Mr Bradley as diligent and hard working.  He has been employed since leaving school and has been promoted to responsible positions. He has a demonstrated commitment to being employed. 

44.

In all the circumstances, the Tribunal finds that the risk that Mr Bradley will

re-offend is low.  However, given the seriousness of the offence for which he was imprisoned, and relying on Re Stone, the Tribunal concludes that the first primary consideration weighs very slightly in favour of cancellation of the visa.

SECOND PRIMARY CONSIDERATION: WHETHER MR BRADLEY WAS A MINOR WHEN HE BEGAN LIVING IN AUSTRALIA

45.Paragraph 10.2 of Direction 41 provides that favourable consideration should be given if the person was a minor when he or she first began living in Australia and spent their formative years in Australia.  Less weight should be given if the person began living in Australia as a minor but was close to attaining adulthood at that time.

46.Mr Bradley was 10 months old when he first began living in Australia; and it is where he has lived ever since.  All of his familial and other ties are to Australia. The second primary consideration weighs against cancellation of the visa.

THIRD PRIMARY CONSIDERATION: THE LENGTH OF TIME THAT MR BRADLEY WAS ORDINARILY RESIDENT IN AUSTRALIA PRIOR TO ENGAGING IN CRIMINAL ACTIVITY

47.Paragraph 10.3 of Direction 41 provides that consideration be given to the length of time that a person has been ordinarily resident in Australia, with more favourable consideration to be given the longer the person has been ordinarily resident in Australia, prior to engaging in criminal activity or activity that reflects negatively on the person’s character.

48.Mr Bradley committed his first offence when he was 18 years old and the second when he was 21 years old.   He had been in Australia for 17 years when the first offence was committed.  The third primary consideration is of limited relevance in this matter. 

FOURTH PRIMARY CONSIDERATION: RELEVANT INTERNATIONAL OBLIGATIONS

49.The International Convention on Civil and Political Rights and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment must be considered, if relevant. Given that Mr Bradley would be deported to the United Kingdom, which is also a signatory to these conventions, there would be no impact on him under these conventions.  

50.The Convention of the Rights of the Child (CROC) provides that, in all actions involving children, the best interest of a child is a primary consideration.  The interests of Mr Bradley’s four year old daughter will be substantially affected by the cancellation of Mr Bradley‘s visa.   Mr Bradley’s two grandchildren and step-grandchildren are also under 18 years of age and will be affected by the cancellation.

The Best interests of the Child

51.Paragraph 10.4.1(4) notes that under Australian law, it is generally presumed that a child’s best interests will be served if the child remains with its parents.  Paragraph 10.4.1(5) set out the factors to be taken into account in considering the best interests of the child. 

(a) the nature of the relationship between the child and the person, for example, a relationship that has parental rights or regular meaningful contact with a child compared to a relationship with long periods of absence and limited meaningful contact with a child;

(b) the duration of the relationship, including the number and length of any separations and reason/s for the separation;

(c) the extent to which the person is likely to play a full parental role up to the child’s eighteenth birthday;

(d) the child’s age;

(e) whether the child is an Australian citizen, permanent resident or new Zealand citizen;

(f) the likely effect that any separation from the person would have on the child;

(g) the existence of other persons who already fulfil a parental role in relation to the child;

(h) the impact of the person’s prior conduct and whether that conduct has, or has had, a negative or positive contact on the child;

(i) the time that the child has spent in Australia;

(j)  any Court orders relating to parental access and care arrangements;

(k) any known wishes expressed by the child;

(l) whether the child is likely to accompany the person overseas in the event the person is removed from Australia;

(m) the circumstances of the probable country of future residence, including the educational facilities and the standard of the health support system (if any) of that country should the person not be permitted to enter or remain in Australia but taking into account that a higher standard of health, educational or other services in Australia does not of itself mean that a non-citizen child should not be removed to another country;

(n) any language barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children acquire new languages; and

(o) any cultural barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children generally adapt to new circumstances.

52.

Amanda Bradley was born in Australia in 2007, and is an Australian citizen. She is the child of Mr Bradley and his wife, Lana Bradley, who were married in October 1999.  She was conceived during an authorised conjugal visit while

Mr Bradley was in prison.   He and his wife wanted to have a child of their relationship.  Mr Bradley and Lana Bradley remain married.  When Mr Bradley was still in prison, he had regular family contact visits, to which his wife would bring his daughter.  When he was at JLTC, Mr Bradley spent much of his available weekend leave with Amanda.  She visits her father on most days at the Immigration Detention Centre, except Tuesdays when she has kindergarten.   Mr Bradley described Amanda as my light.  Despite separation due to Mr Bradley’s imprisonment and current detention, he and the child’s mother as well as other family witnesses attested to the close bond between Mr Bradley and Amanda.

53.Mr Bradley expects to play a full parental role in Amanda’s life, up to and beyond his daughter’s eighteenth birthday.  Amanda’s mother agreed that this was her expectation as well. However, it will obviously be more difficult to do so if he is in another country and can only communicate with her remotely.

54.Separation from Mr Bradley would mean that Amanda would lose the physical contact with and guidance of her father.  Lana Bradley is in poor health. She is receiving cancer treatment and has a debilitating back condition. Mrs Bradley’s parents are concerned as to what might happen if the cancer spreads and Lana Bradley dies while Amanda is still a child.  It may well result in her being brought up partly by the extended family rather than her parents.  Her father’s deportation would probably result in Amanda being in much poorer financial circumstances, as her mother may well be unable to work given her poor physical condition. Amanda might be dependent on social security benefits as she is at present while her father is in immigration detention. 

55.Amanda has half-brothers and other male relatives but none appears to be in the position of a father figure.  There is nothing to suggest that Mr Bradley’s prior conduct has had a negative impact on Amanda, beyond having limited contact in her early years due to his imprisonment and current immigration detention.  He appears to be a positive influence in Amanda’s life.

56.There are no court orders relating to parental access or the like as Mr and Mrs Bradley remain married and are not permanently separated.

57.Amanda is too young to formally express her wishes.  However, the evidence of her mother, grandmother and other family members is that she is close to her father. 

58.Amanda’s mother told the Tribunal that she would not accompany her husband to the United Kingdom if he was to be deported.  She is currently under medical treatment and does not want to risk changes to her regime.  She is also apprehensive as to how well she would be treated by the British medical system.  She also has her other children and grandchildren in Australia.  Both parents believe that it would be best for Amanda to stay in Australia given her father’s anticipated difficulties if he has to resettle in a country where he has no accommodation, employment or family support.

59.However, Amanda would have access to education, health support and the like if she was in the United Kingdom with her father.   There would be no language or many cultural barriers, although there would be a loss of access to her extended family.

60.One of the statements presented to the Tribunal was from Master Will Faccin, Mr Bradley’s step-grandson.  He is the son of Lana Bradley’s daughter.  In his own handwriting, Will wrote:

Hi my name is Will Faccin.

Age 11

I like when I went to see my pop when he was working all the time.

I went with my nan to see pop.  We had fun playing and having lunch with him.

Latly pop has been coming over to my place and helping with my homework and taking me shoppig it has been good fun beening with him.

I wish I can be with him all the time.

61.Will, and his two younger siblings will be deprived of seeing their step-grandfather if Mr Bradley is deported.  Mr Bradley appears to be an important role model to his step-grandchildren.

62.Mr Bradley’s son Daniel, who is 24 years old, has two young children who have had some contact with their grandfather.  It is unlikely that they would have much contact with Mr Bradley if he was in the United Kingdom.  They would miss out on having a close relationship and physical contact with their paternal grandfather if Mr Bradley was required to leave Australia.

63.The Tribunal finds that the fourth primary consideration weighs strongly against cancellation of the visa given the impact on Amanda Bradley.  There would also be an impact on Mr Bradley’s grandchildren and step-grandchildren although not to the same degree as the impact on Amanda. 

OTHER (NOT PRIMARY) CONSIDERATIONS

Family ties, the nature and extent of any relationships

64.The evidence of Mr Bradley’s family and friends is that he is central to keeping the family together.  There were about twenty people present during the two-day hearing before the Tribunal supporting Mr Bradley. 

65.Mr Bradley married Lana, in October 1999, in prison.  Their relationship started in 1997 when Lana was working with Mr Bradley’s mother as a school cleaner.  They had first met when they went to the same high school.   In her written statement, Mrs Bradley stated that she first married at the age of 18 and had two children with her first husband.  She later had another relationship, which resulted in a third child.  She stated that her three children, Toni Faccin, Mark Faccin and Ailise Rosenow found in Mr Bradley what a dad was supposed to be.  A man who listens, cares and doesn’t judge at the drop of a hat.  Lana described the development of her relationship with Mr Bradley.  Mrs Bradley stated that she found out she was pregnant about the time that Mr Bradley was arrested for murder.  She miscarried during the course of the investigation and she and Mr Bradley were devastated.   

66.Mrs Bradley described her delight at her husband’s move to a medium and then low security jail, which allowed for contact visits.  She indicated that when Mr Bradley moved to JLTC, they were able to do what other young families do, such as visiting the zoo, parks and beaches, going shopping and the like and relished the time they shared with Amanda.  She finished her written statement with the following:

Everyone was so happy when Rick finally came home to us.  He had spent much of the time in Judy Lazarus preparing for work after his release.  His only goal was to ensure that he could begin providing for his family in every way as soon as he was able.  He started work on the day he was released and was enjoying being a full time father and provider.  It was just great to have him  here all the time.  Then the Department of Immigration took him from us again.

How much more do we as a family have to suffer?  As mentioned earlier, I have been diagnosed with Bladder Cancer and I am undergoing treatment.  I need cortisone injections for a debilitating back complaint.  What will happen to our littler girl if I don’t survive?  The last months have been harder to bare [sic] than the entire 13 years of Rick’s jail sentence.  I don’t know how much more I can take and the stress is really taking its toll on my ability to concentrate on getting better.

Please give me back my husband, our father and provider.  “Our dad”. 

67.In her oral evidence, Mrs Bradley confirmed her comments in her statement about the strength of the relationship between Amanda and her father.  She also described the quality of the relationship her other three children had with their stepfather. They could talk to him about anything.  This was important because of the lack of a relationship with their biological father.  Mrs Bradley said that she had moved to Watchem, a small town in north-western Victoria for a considerable part of the time that Mr Bradley had been in prison.  Her parents lived nearby and housing was much cheaper there.  She has now moved back to Melbourne. 

68.Lana Bradley’s doctor at Birchip Medical Clinic, Dr Oluwole Owa, provided a statement dated 30 August 2011, which was accompanied by pathology and specialist reports.  Dr Owa stated, amongst other things, that:

Her current illness includes Ongoing surveillance for Bladder Cancer recurrence with planned cystoscopy and possible biopsy and mitomycin C treatment if necessary…She was diagnosed at about mid September 2009.

She also suffers from moderate to severe central canal stenosis at the lower lumber levels…

She had previous cortisone injections to the back (at about 2007-2008) and currently on Panadeine Forte.

Her current treatment plan for the back is back care and rehabilitation program, to continue the analgesia and to be reviewed by the Orthopaedic Specialist.

The prognosis form [sic] these two major issues will depend on many factors including compliance with her management plan, histopathology findings at subsequent cystoscopy and Biopsy and this is why it is important to continue to keep her bladder cancer under surveillance.

The back issues is not likely to improve with time as she is not getting younger and may need to be reviewed by an Orthopaedic Surgeon for a possibility of surgical intervention if it worsens.

Mrs Bradley will need and benefit from all the support she can get to optimize her quality daily living, but it is still early to fully itemize her needs in total as this will depend on how her disease process evolves…

69.Ms Laura Taylor, Mr Bradley’s older sister, provided a written statement, dated 25 August 2011 and gave oral evidence.  She described her brother’s role in looking  after her:

2.  As Ricky was the only male sibling in our family he took on a “man of the house” role when our parents separated at the age of 10.  Our mother had suffered a nervous breakdown prior to this separation (our father was an alcoholic) and my brother really took on the role of protector within the family.  She suffered two further breakdowns before Ricky turned 13 and we were put into care on several occasions.  Ricky was also put into a boy’s home for a period of time.  Still, knowing that our mother was suffering, he really tried to do everything in his power to shield her from any further stress as he was growing up.  This was a huge burden for him at such a young age and I think this experience had a profound affect on him.

3.  At age 15, I left the family home leaving Ricky to continue to take care of our mother and our younger sister who was only 11 at the time.  This is one of the reasons Ricky and my younger sister have always been so extremely close.  She has relied on him to be big brother and father figure for most of her adult life….Because we grew up in this environment, family…has always been extremely important.  The need to ensure that we are there for our families is very strong and Ricky has extended this into all areas of his life including the families of his sisters.

…

10 Everyone close to Ricky has been desperately waiting for him to come home.  The thought that he may be deported is almost more than any of us can even imagine let alone consider as a permanent situation.  There are so many people who rely on him the most significant being his wife and children who will be irreparably damaged by this loss.

70.Ms Taylor expanded further on the family dynamics at the hearing and described the central role her brother has in bringing the family together.  She reinforced the impact his deportation would have on her, her sister and particularly on his wife and children.

71.Ms Tracey Hellstrom, Mr Bradley’s younger sister, provided a written statement dated 29 August 2011 in which she stated, amongst other things:

…

2.  I have the utmost love , trust and respect for my only brother, Ricky.  He has been a rock to me my whole life and has supported me and tried to protect me.

3.  When we moved in with Mum and Campbell [their stepfather] to their home in Sunshine West, we experienced much physical and mental abuse.  Our family life was, at times, pretty dysfunctional and I fell pregnant with my first child, Mark, when I was 16.  Throughout this time, Ricky was always supportive of me, despite the circumstances I found myself in.

4.  Tragedy struck on 13 September 1988 when Mark drowned, aged four, in Mum and Campbell’s backyard pool as they were looking after him.  This was devastating for me and I did not cope well at all.  I spiralled out of control for about 10 years on a roller coaster ride of drugs including spending a short period of time in gaol.  I still find things difficult, even now, and look to my big brother for guidance and support.

5.  I have tried to straighten myself out – I moved away, married and raised two children , with the love and support of Ricky…

7.  Rick has been a major support in my life.  The relationship with my husband of 16 years (and on-off partner of 25 years) ended in 2010 and I have felt shattered by this….I feel that Ricky is the only male that I have had a functional relationship with due to my own demons in the past.  He is my rock.  I have regular treatment tin therapy to help myself become a stronger person but I honestly don’t think that I have the capacity to do this without Ricky.  He has been with me throughout my life.  Without Ricky I do not know where I’d be.  I am not sure where I will be in the future without him.  I need him in my life, close to me, to survive.

72.Ms Hellstrom expanded on her statement in her oral evidence.  She said that in recent years, since 2009, her brother would telephone her every Saturday morning to check how she was and encourage her to recognise her own strength.  She said she would be shattered if he had to leave Australia. 

73.Mr Daniel Bradley, Mr Bradley’s older son, provided a witness statement in August 2011 and gave oral evidence.  He stated, amongst other things:

2.  I wish to be a witness and have prepared this statement in the hope that I can keep my father in Australia where he belongs.  Since the age of nine I haven’t had my father in my life.  When Dad was imprisoned I was living in Government foster care.  At that time I was too young to take myself to visit him.  I never knew when I was going to see him next and that affected me greatly. 

3.  …I didn’t like to go and visit my father in prison because I didn’t like seeing him in that environment.  I felt that this affected our father/son relationship.

4.  When my father started his work release program just over a year ago, I was able to spend time with him every two weeks or so at my grandmother’s house.  The more time progressed, we were able to spend more and more time together.  I feel like every moment we had together helped so much.  Every moment with my father is a gift to me because we have had so much time apart.  If my Dad gets deported I feel like the Government will be taking away my father from me.  Getting to know my Dad and having him get to know me and my kids properly is very important.  I think my father and I have come a long way in the short time we have had together.

…

7.  If my father was to be deported back to Scotland, I can definitely say that it would do a lot of damage to my family and I.  To tell the truth, I cannot even put into words how I would feel.  All I know is that my heart would break into a millions pieces…I only just got him back and never thought I would lose him for the second time in my life…

74.In  his oral evidence, Daniel Bradley said that he was about nine years old when his parents split up.  His mother was unable to look after him and he ended up in foster care.  When he obtained his driver’s licence at the age of eighteen, he started to visit his father in custody, sometimes taking his younger brother, Graeme.  Daniel Bradley described the positive impact his father had on him and his wish for his children, Harrison, aged three and Isabelle, aged eighteen months, to know their grandfather and have ongoing contact with him.    

75.Mr Graeme Bradley, Mr Bradley’s younger son, now aged twenty, provided a written statement and gave oral evidence.  He was five years old when his parents separated and he stayed with his mother.  He had no contact with his father from when Mr Bradley was imprisoned until he was 16 years old in 2007.  He contacted his brother who had obtained his driver’s licence and asked to be taken to see their father.  Graeme Bradley said that it felt rather awkward when they first met and unnerving because of where the meeting took place.   He saw his father at Loddon prison in 2009 before Mr Bradley went to JLTC and next met with him on 2 January 2011 when his father was on authorised leave.  He said this was a much better experience as it was outside and they could talk freely with no one else listening.  

76.His mother was not happy about Graeme rekindling his relationship with his father but he told her it was his right to do so and she reluctantly accepted this.  Graeme said that he had now met many members of his father’s family whom he had not met before.  He said that his relationship is improving.  He currently keeps in contact by telephone as he does not like going to the immigration detention centre.  He said if his father has to go to Scotland, he could not afford to visit him and their relationship which has been growing stronger, might fall apart.

77.Mrs Frances Galloway, Mr Bradley’s mother, provided written and oral evidence.  In her written statement dated 30 August 2011, she stated:

..3.  We came here to Australia hoping for a better life, but things were not as we had planned after our arrival…It is hard for me now to go into detail about the past as it is extremely painful…

4. We have all had enough of the past to last a lifetime – I would like to leave it where it belongs.  The illness and the hurt to my children because of mistakes made by bad choices on both sides still haunts me…Please believe me that Rick has been the “man of the house’ for as long as I can remember. Even in jail he helped with advice and encouragement…

…

6.  Rick’s wife has cancer and has been operated on four times so far.  She has a back injury also and I know it will come to the stage where she will need care not only for herself but also for the couple’s daughter, Amada.  It is not possible for me to look after Amanda as I am 67 years old and have a sick husband.  My husband is 77 and I am his carer.

7.  Our family as a whole has been preparing for Rick to come home for a long time.  During his time in prison he did not sit by feeling sorry for himself.  He helped others in prison in many ways.  That kept Rick going when he came closer to coming home.  He began to train himself for a new way of life, new job, new thinking about his family.  We all depend on Rick and need him to be here in Australia with us.

…

78.

In her oral evidence Mrs Galloway described the interactions between

Mr Bradley and his children and the impact his departure would have.  She expressed particular concern on the impact on Lana, whom she thought would have difficulty coping if Mr Bradley was required to leave Australia.

79.

Ms Carole Binks, a youth worker employed by Salvation Army Westcare, provided a written statement dated 6 July 2011 and gave oral evidence.  She described herself as a close friend of Mr Bradley, whom she has known for about

24 years.  In her statement, she commented:

…

I first met Rick when I was approximately 10 years of age when I joined his Martial Arts Club at my local primary school.  From my very first lesson I had a friendship and connection with Rick.  He taught me and the many other members of our club not only martial arts, but also respect, for ourselves and for others, honour and discipline.

Rick had a very strong way of teaching and brought out the best in many people.  Similarly, he would see the positives in young people where many others would only see the negatives..

…

..To me, Rick is an amazing person for whom I can very honestly say has helped shape me into the person that I am today.  He taught me how to grow as a person, how to be confident, how to show respect and honour to others, how to be self-disciplined, and above all else, not to judge, to give every person a chance and to treat everyone equally.  Finally, I would like to comment that it is because of Rick and his teachings, that I am now a Youth Worker and strive to achieve better circumstances for the young people that I work with

…

80.In her oral evidence, Ms Binks described growing up in a rough area in which many of her peers experimented with drugs and ended up in various anti-social activities.  She credited Mr Bradley with giving her and other students the strength and mechanisms to rise above that environment through his martial arts teaching.  She described him as one of the major influences in her life. 

81.The Tribunal had numerous other witness statements from stepchildren, people Mr Bradley had helped in prison and their parents, former martial arts students of Mr Bradley and their parents, former sporting colleagues and other friends.  All attested to the positive influence Mr Bradley had on them and the loss it would be to them personally and to the community if he was required to leave Australia.  They include:

·Mr Ashley Humble, who served a two and a half year sentence for culpable driving, having lost his best friend in the accident.  He credited Mr Bradley with helping turn his life around, helping him to break free of his marijuana and alcohol addiction.  He stated that Mr Bradley had taught him the importance of work, making positive choices about the people he mixed with and other life lessons.  He commented that due to Richard’s incredible generosity, selflessness, and willingness to spend time with me, which was in essence, mentoring me, he pulled me away from a future that would have been extremely detrimental to not only myself but to society.  Mr Humble is now doing youth work.

·

Ms Leanne Humble, Ashley Humble’s mother, attributed her son’s rehabilitation to the influence of Mr Bradley.  She stated that she believes

Mr Bradley’s deportation would not only be extremely detrimental to his immediate family but also to countless other people for whom he has been a role model and mentor.

·Ms Toni Faccin, Mr Bradley’s stepdaughter, stated that he was the father she had never had, giving her love and support that she needed.  She described the positive influence he had on her and on her children.

·Ms Kirsty Tippet, the mother of Daniel Bradley’s two children, described the positive influence she perceived that Mr Bradley’s had on her former partner since they started interacting.  She perceived that if Mr Bradley was deported, Daniel would find difficulty coping with having his father taken away from him a second time.

82.While the impact of the cancellation of the visa on adult family and others in the community is not a primary consideration and hence has less weight than the four primary considerations, this consideration favours exercising the discretion not to cancel the visa.

Age

83.Mr Bradley is aged 46 years.  This consideration is not relevant to the Tribunal’s consideration.

Health

84.Mr Bradley appears to be in good health. There is no evidence before the Tribunal of any medical condition suffered by Mr Bradley.  Therefore, this consideration is not relevant to the Tribunal’s consideration.

Links to the country to which he would be removed

85.Evidence from Mr Bradley, his sisters and mother revealed no close relatives in Scotland or the United Kingdom in general.  Mrs Galloway said that Mr Bradley’s late father had been estranged from his family when they met.  She believes there was a brother in Scotland when they migrated but she does not even know his name or where he lived.  All of Mrs Galloway’s family migrated to Australia. 

86.Mr Bradley visited Scotland in 1994 and 1996.  He went to the addresses his mother gave him of where they lived and the hospital where he was born but both had been demolished.  He could not find anyone who knew of their family or indeed of his parents.

87.Apart from Scotland being his place of birth and a place where he went on a golfing holiday, Mr Bradley appears to have no links to Scotland or the United Kingdom generally. 

Hardship likely to be experienced by Mr Bradley or his immediate family members lawfully resident in Australia

88.Mr Bradley told the Tribunal he would suffer hardship if he is forced to return to Scotland.   He would have no accommodation, job or established connections in that country or in any other part of the United Kingdom.  He does not know whether the training he has undertaken would be recognised there.  Re-establishing his life in a country he left as an infant would be difficult.

89.However, the hardship of being away from his wife and young daughter, as well as the rest of his family, causes him the most concern.  As indicated earlier, Lana Bradley would not accompany him due to her ill-health, her desire not to leave her other children and grandchildren, and her concern about how difficult it would be for Mr Bradley to cope with looking after them as well as re-establishing himself.

90.Mr Bradley admitted that he could maintain some contact by telephone and electronic communications but said it would not be the same as daily physical contact with his young daughter.  

91.The Tribunal accepts that Mr Bradley would suffer hardship if he is removed from Australia after living here for almost his whole life. 

Level of education

92.The Tribunal is satisfied that any lack of formal education has not impacted adversely on Mr Bradley’s ability to present his claim.  He had expert legal representation from a migration law specialist as well as an experienced barrister.  He is intelligent and was able to give oral evidence in a forthright and articulate manner.  

93.However, the Tribunal notes that Mr Bradley attended several schools and left school after Year 10.  He has undertaken a variety of vocational and personal development courses while in custody which were outlined earlier in these Reasons for Decision.  The courses have led to his obtaining employment while at JLTC and immediately following his release on parole.  As detailed earlier, his employer prior to his being taken into immigration detention, has expressed a willingness to re-hire him if he is allowed to stay in Australia.

94.Mr Bradley is skilled at martial arts and taught many students prior to his incarceration, many of whom have provided statements to his skills in that arena. 

Whether Mr Bradley has been formally advised in the past by the Department about conduct that brought him within the deportation provisions of the Act or the character provisions of the Act

95.

In August 2000, Mr Bradley was notified of possible deportation proceedings following his conviction and given the opportunity to provide comments.  On

5 February 2002 Mr Bradley received the following letter from an officer in the then Department of Immigration and Multicultural Affairs:

Following a recent High Court decision, advice has been received from the Australian Government Solicitor which indicates that the Minster for Immigration and Multicultural and Indigenous Affairs does not have the power to deport or remove certain British subjects who arrived prior to 19 October 1973.

This decision affects individuals who are the subject of deportation orders or whose visas have been cancelled under section 501, 501A or 501B of the Migration Act 1958, and who arrived in Australia as British subjects as permanent residents prior to 19 October 1973.

As you fall within this category, the Department will no longer be considering your liability for s501 cancellation as previously stated in our notice of 2 August 2000.

…

96.Mr Bradley was not made aware of any change to the provision (or his liability for deportation) until he received the notice of intention to cancel dated 25 February 2011 while he was at JLTC.

SHOULD THE DISCRETION TO CANCEL THE VISA BE EXERCISED?

97.

Mr Bradley is married with a four year old daughter who is an Australian citizen.  His wife, also an Australian citizen, is suffering from a serious illness. 

Mr Bradley has two adult sons from a previous relationship.  He is loved and valued by his children, sisters, stepchildren, grandchildren, step-grandchildren and other relatives. Friends and family hold him in high esteem.  Former martial arts students attest to his importance as a mentor in their lives.  Despite a difficult childhood, his relationship with his mother and stepfather is now good.   All of his family are in Australia.  He has spent almost all of his life here.   He has no friends or acquaintances in Scotland or the United Kingdom. 

98.The picture presented by his friends and family is significantly at odds with that which the community would have of a person who has been convicted of the callous crime of a contract killing.    

99.As previously indicated, the Tribunal must consider whether Mr Bradley’s visa should be cancelled according to the considerations set out in Direction 41.  

100.Mr Bradley was convicted by a jury of an abhorrent and serious crime. The conviction was upheld on appeal. He was sentenced to 17 years’ imprisonment for that crime.  However, despite the length of the sentence he imposed, the sentencing judge thought Mr Bradley’s prospects of rehabilitation were good.  The assessment committees in Corrections Victoria agreed that Mr Bradley provided little risk by classifying him at progressively lower security classifications.  He was found to be suitable for the transitional program at JLTC for which there is strong competition and a requisite assessment that the prisoner posed little risk to the community.  He was allowed unescorted leave.  The Parole Board released Mr Bradley on parole at the earliest possible date.  The psychiatrist commissioned by the respondent thought there was little risk of recidivism.  The statistics provided in the reports given to the Tribunal indicated while there was some risk of recidivism, it is lower for someone like Mr Bradley.  The Tribunal has made the finding that the risk Mr Bradley could pose to the community is low.  This is the only one of the four primary considerations that the Tribunal ruled would be slightly in favour of cancellation of the visa.  All the other primary considerations and other considerations favour a decision not to cancel the visa. 

101.After considering all the circumstances of the primary considerations, and then the other considerations the Tribunal concludes, for the reasons given, that the factors weighing in favour of the cancellation of the visa are far outweighed by the factors against cancellation. Therefore, the discretion to cancel the visa should not be exercised.

DECISION

102.The Tribunal sets aside the decision under review and remits the matter to the respondent with the direction that the discretion to cancel Mr Bradley's visa pursuant to section 501(2) of the Migration Act 1958 not be exercised.

I certify that the one hundred and two [102] preceding paragraphs are a true copy of the reasons for the decision herein of Ms Regina Perton, Member.

Signed:          .................................[sgd]..............................................
  Kate Conners            Associate

Date/s of Hearing  5 & 6 September 2011
Date of Decision  15 September 2011
Counsel for the Applicant          Mr G Hughan
Solicitor for the Applicant           Clothier Anderson
Counsel for the Respondent     Mr D Brown

Solicitor for the Respondent                Australian Government Solicitor