Bristowe and Minister for Immigration and Border Protection (Migration)

[2017] AATA 1092

Bristowe and Minister for Immigration and Border Protection (Migration) [2017] AATA 1092 (14 July 2017)

Division:GENERAL DIVISION

File Number:           2017/2505

Re:Lou Bristowe

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member J F Toohey

Date:14 July 2017

Place:Sydney

The Tribunal affirms the decision under review.

........................................................................

Senior Member J F Toohey

CATCHWORDS

MIGRATION – mandatory cancellation of visa – request for revocation of cancellation – character test – substantial criminal record – primary and other considerations – prospects of rehabilitation – unacceptable risk of harm – decision under review affirmed.

LEGISLATION

Migration Act 1958 (Cth), s 501(3A)

CASES

BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96

SECONDARY MATERIALS

Direction No. 65 – Visa Refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Senior Member J F Toohey

14 July 2017

1. Mr Lou Bristowe arrived in Australia from New Zealand in February 1994 when he was aged 18.  He has remained in Australia since.  In September 1994, he was granted a Special Category (Temporary) Visa. 

2. Mr Bristowe has a history of offending in New Zealand and Australia dating from 1990.  On seven occasions between 1999 and 2015, he was convicted of offences for which he was sentenced to imprisonment for 12 months or more. 

3. Section 501(3A) of the Migration Act 1958 (the Act) provides that the Minister for Immigration must cancel a person’s visa if satisfied that the person does not pass the character test and he or she is serving a full-time sentence of imprisonment in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory.

4. A person does not pass the character test if he or she has a substantial criminal record: s 501(6)(a).  For the purposes of the character test, a person has a substantial criminal record if he or she has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c). 

5. Whether a person fails the character test is a matter of law.  Mr Bristowe does not pass the character test by reason of his sentence in 2012 to four years and two months imprisonment for robbery in company (as well as by reason of earlier sentences which also meet the statutory definition of substantial criminal record).

The decision under review

1. On 15 January 2015, a delegate of the Minister cancelled Mr Bristowe’s visa on the ground that he did not pass the character test because of his substantial criminal record. 

2. The Minister may revoke the mandatory cancellation of a visa if satisfied that the person passes the character test or if there is another reason why it should be revoked: s 501CA(4)(b).  As soon as practicable after cancelling a person’s visa, the Minister must give the person written notice of the decision and invite him or her to make representations about the revocation of the decision: s 501CA(3). 

3. By letter dated February 2015, Mr Bristowe responded to the Minister’s invitation and asked that the decision to cancel his visa be revoked.  He said he regretted his actions and had reflected since being locked up; he had become a Christian and was changing his views and thoughts about life.  He said Australia has been his home for 20 years and he has no family in New Zealand; his parents were alcoholics and his father abusive; he wants to keep his own five children from making the same mistakes.  He said he fears harm from gangs in New Zealand.

4. On 19 January 2017, Mr Bristowe made further written submissions in support of his application. He outlined his violent upbringing and lack of parental guidance, and said that his current lengthy imprisonment had taught him a lot.  He said his children had recently made contact with him after five years, and he asked to be allowed to remain in Australia in order to help steer them away from the kind of life he has led.

5. On 1 May 2017, the delegate decided not to revoke the decision to cancel Mr Bristowe’s visa.  Mr Bristowe seeks review of that decision.

Mr Bristowe’s history of offending

1. Police records from New Zealand show that, between September 1990 and April 1993, Mr Bristowe was convicted on 15 occasions of offences including shoplifting, obtaining by false pretences, burglary by day and night, wilful damage, theft of motor vehicles, common assault, being unlawfully on premises and driving offences.  He was sentenced to community-based programs, periodic detention and social welfare supervision.  His last recorded offence was on 29 April 1993 for which he received a 12-month suspended sentence.  Mr Bristowe has little memory of his early offending but does not dispute the police record. 

2. Mr Bristowe left New Zealand to escape the violence in his home.  He arrived in Australia alone.  He knew no one and spent the first three years living on the streets.  In about 1998, he met his partner and they had their first child while living on the streets.  They eventually found housing and had four more children before separating around 2004.  The children remained with her and Mr Bristowe had limited contact with them, with several long periods without contact.  Before they contacted him at the end of 2016, they had had no contact for five years.

3. From time to time, Mr Bristowe had part-time or casual work but for most of the time, he was not employed.  He had a full-time job with the Easter show from around 2008 to 2010, and worked full-time as a forklift driver for a year around 2012 until a workplace injury. 

4. Mr Bristowe’s police record of offending in Australia runs to six pages commencing on 22 February 1995 when he was convicted of resisting police, offensive language, break and enter with intent, and assault police.  On five subsequent occasions in 1995, he was convicted of offences including assault occasioning actual bodily harm, assault, and malicious damage of property.

5. In February 1996, Mr Bristowe was sentenced to imprisonment for six months for stealing and was fined for offensive conduct, possessing a prohibited weapon and failing to supply his name and address.  In November 1997, he was convicted of six driving offences including failing to stop after an accident involving injury, and assault occasioning actual bodily harm.  He was placed on a good behaviour bond for two years, disqualified from driving for 12 months and ordered to perform community service.

6. Between July 1998 and August 1999, Mr Bristowe appeared in court five times for driving offences, common assault, assault occasioning actual bodily harm, and stealing.  He was sentenced to imprisonment for 10 offences for periods up to 12 months.

7. Between February 2001 and April 2015, there were only four years during which Mr Bristowe did not appear in court, or was not convicted of offences.  In most, if not all, of those years, the explanation appears to lie in the fact that he was serving a term of imprisonment.  In some years, he appeared in court multiple times.  His record shows repeated driving offences included numerous occasions of driving while disqualified, thefts, and repeated assaults including assault occasioning actual bodily harm.  It also shows multiple breaches of intervention orders, contravention of apprehended violence orders, and numerous offences committed while subject to a good behaviour bond.

8. On 15 March 2013, Mr Bristowe was convicted of offences committed between September and November 2012 including driving while disqualified, being in custody of a knife in a public place, possessing housebreaking implements, and being in possession of goods suspected to be stolen.  He was sentenced to imprisonment for periods up to 12 months.

9. On 8 April 2013, Mr Bristowe was sentenced to two years imprisonment for robbery committed on 4 April 2011. On 15 April 2015, he was sentenced to imprisonment for four years and two months commencing on 2 September 2014, for robbery in company committed in July 2012.

10. Mr Bristowe gave evidence that he cannot recall many of his offences because he was drunk at the time but, other than a conviction in October 2006 for assault with an act of indecency which he says was overturned on appeal, he does not dispute the accuracy of the police record.  Nor does he dispute the accuracy of Police Facts Sheets presented to the court in relation to offences in 2002, 2004, 2010, 2011 and 2012.

11. In January 2017, at the end of his sentence, Mr Bristowe was transferred to Villawood detention centre and has remained there since.

Ministerial Direction 65

1. The discretion to revoke the cancellation of a visa must be exercised in accordance with Ministerial Direction 65 (the Direction) made by the Minister pursuant to s 499 of the Act.  The Direction came into effect on 22 December 2014 and is binding on the Tribunal: s 499(2A). 

2. By way of general guidance, the preamble to the Direction affirms the Government’s commitment to protecting the Australian community from harm as a result of criminal activity or other serious conduct by noncitizens.  It states that the principles in the Direction are of “critical importance” in furthering that objective, and “reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable”: cl. 6.2(1).

3. The principles affirm Australia’s “sovereign right to determine whether non-citizens who are of character concern” are allowed to enter or remain in Australia, and state that coming to, or remaining in Australia, is a privilege conferred on noncitizens in the expectation that they are, and have been, law-abiding and will not cause or threaten harm to individuals or the Australian community: cl 6.3(1).  To this end, the Australian community expects that the Government can and should cancel the visas of persons who commit serious crimes in Australia or elsewhere: cl 6.3(2).

4. A non-citizen who has committed a serious crime, particularly against vulnerable members of the community, should generally expect to forfeit the privilege of staying in Australia: cl 6.3(3).  In some circumstances, the risk of harm should offending or other conduct be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling the visa: cl 6.3(4).

5. The Direction recognises that a higher level of tolerance of criminal or other serious conduct may be afforded to a non-citizen who has lived in the Australian community for most of his or her life, or from a very young age: cl 6.3(5).

How to exercise the discretion

1. Informed by the principles in the Direction, a decision-maker must take into account the following primary considerations in determining whether to exercise the discretion to revoke a mandatory cancellation:

   (i)protection of the Australian community from criminal or other serious conduct;

   (ii)the best interests of minor children in Australia;

   (iii)expectations of the Australian community.

2. Other relevant considerations include, but are not limited to:

   (i)international non-refoulement obligations;

   (ii)strength, nature and duration of ties;

   (iii)impact on Australian business interests;

   (iv)impact on victims;

   (v)extent of the impediments if removed.

3. Whether the Tribunal is required to consider any international non-refoulement obligations to Mr Bristowe is discussed below at [53].

4. The primary and other considerations relevant to the individual case may weigh in favour of, or against, revocation of a mandatory cancellation.  Primary considerations should generally be given greater weight than other considerations, and one or more primary considerations may outweigh other primary considerations: cl 8.

Protection of the Australian Community

1. As well as having regard to the principles in the Direction, decision-makers should give consideration to the nature and seriousness of the non-citizen’s conduct to date, and the risk to the Australian community should he or she commit further offences or engage in other serious conduct.

The nature and seriousness of the conduct

1. When considering the nature and seriousness of offending to date, decision-makers must have regard to the principle that violent and sexual crimes are viewed very seriously, and crimes against vulnerable members of the community or against government representatives or officials due to their position or in the performance of their duties, are serious.  Regard must also be had to the sentence or sentences imposed by the courts, and the frequency of offending and the cumulative effect of repeated offending: cl 13.1.1.

2. Mr Bristowe has a history of committing serious offences.  Some offences committed while he was a juvenile might be considered at the lower end of seriousness, but his record of offending in Australia shows a pattern of increasingly serious assaults and property offences culminating in robbery in February 2011 and robbery in company in July 2012.  The seriousness of his offending is reflected in repeated prison sentences of increasing length. 

3. Mr Bristowe’s disregard for Australian law enforcement is evident in the numerous occasions on which he has committed offences while subject to the supervision of the courts. He has repeatedly driven while disqualified, contravened apprehended violence orders and committed offences while on a good behaviour bond.

4. Records of the New South Wales Department of Corrective Services show 17 incidents for which Mr Bristowe has been disciplined while in custody.  It is fair to say that the majority were committed before the end of 2006 and appear to have been at the lower end of seriousness. Nevertheless, they evidence a disregard for authority. 

5. More seriously, in January 2016, Mr Bristowe was charged with assault on a fellow inmate.  Giving evidence, Mr Bristowe said the assault occurred after he walked away from an inmate who was aggressive and wanted to fight, that he believed his life was threatened and he acted in self-defence.  His account is not borne out by prison records including a document signed by Mr Bristowe showing he pleaded guilty to the charge and admitted assaulting the other inmate because he broke his kettle. There may be more to the incident than disclosed in the brief prison record but it remains the case that Mr Bristowe assaulted another inmate.

The risk to the community in the event of further offending or other serious conduct

1. In considering the risk to the Australian community, decision-makers must have regard to the nature of harm to individuals or the Australian community should the non-citizen reoffend, and the likelihood of reoffending: cl 13.1.2

2. The Tribunal has before it the sentencing remarks made by the magistrate on 17 March 2010 and by the sentencing judges on 8 April 2013 and 15 April 2015. 

3. Sentencing Mr Bristowe in March 2010 on two counts of contravening a domestic apprehended violence order, common assault, assaulting an officer in execution of duty, and damage or destroy property, the magistrate noted that, although he had continued his criminal history “year in and year out”, Mr Bristowe had undertaken a 12 month rehabilitation program for alcohol in 2008.  He imposed concurrent suspended prison sentences and was apparently satisfied Mr Bristowe showed some prospect of rehabilitation. 

4. On 8 April 2013, sentencing Mr Bristowe for robbery, Judge Sides accepted that Mr Bristowe was genuinely remorseful.  He noted the disadvantage of Mr Bristowe’s “dysfunctional upbringing” and his “erratic or sporadic contact” with his own five children.  He referred to Mr Bristowe’s “significant gambling problem for the past ten years” and that he had not participated in any programs to address this problem, that he had been “abusing alcohol for about two decades” and had “participated in a residential rehabilitation facility in 2009 but relapsed about two weeks after completing it”, and that he developed a daily methyl amphetamine habit after the death of his mother towards the end of 2010.  The Judge observed that Mr Bristowe’s prospects of rehabilitation and not reoffending were “very poor”.

5. On 15 April 2015, Judge Colefax SC sentenced Mr Bristowe to four years and two months imprisonment for robbery in company, noting that he was an active participant in the offence but to a lesser extent than his co-offenders.  He referred to Mr Bristowe’s father as verging on being “some form of monster” who inflicted violence on his children and their mother.  He accepted that Mr Bristowe had made “significant steps to overcome his addiction without assistance” and had not consumed drugs in jail.  He accepted that Mr Bristowe was genuinely remorseful and thought his prospects of rehabilitation were “reasonable”.  

6. Having heard Mr Bristowe give evidence, I accept that his intentions to turn his life around are genuine.  I accept that he has developed a measure of insight into his behaviour.  However, his intentions are untested and his history gives little reason for confidence that he will be able to carry them through. 

7. There are things in Mr Bristowe’s favour.  A pre-release report prepared on 16 December 2016 shows he had completed the EQUIPS Aggression program and “displayed a high level of understanding” and a “positive attitude and stood out as a participant that is willing to make changes that improve outcomes in all aspects of his life”.  Throughout his incarceration in both correctional centres he had been employed in the engineering units while completing a Certificate II in engineering, and was undertaking literacy and numeracy classes.  Records showed he was polite to corrective service staff and took pride in his work, helped others to learn different jobs within the unit and communicated effectively.  Those matters are all to Mr Bristowe’s credit.   

8. On the other hand, the report shows that Mr Bristowe had recently acknowledged unresolved issues arising from his traumatic childhood and which have affected his mental health, and that he would require “ongoing psychological counselling to assist in resolving the symptoms of his PTSD”.  Mr Bristowe also recognises a long-term gambling problem for which he has not received any treatment or counselling, and a long-term problem with alcohol and other drugs including, since around 2010 when his mother died, methyl amphetamine.  In about 2010, he completed a 10 month residential alcohol rehabilitation program but unfortunately relapsed within two weeks.  He attended Alcoholics Anonymous meetings while in prison but, unfortunately, they were discontinued, and they are not available in Villawood detention centre.

9. Mr Bristowe has very limited support within the Australian community and no present employment prospects.  His traumatic childhood has left him with serious problems which I accept he recognises but which remain unresolved.  The risk that he will re-offend and will commit further serious crimes is considerable.

10. Taking all of these matters into account, I find that the protection of the Australian community weighs heavily against cancelling the revocation of Mr Bristowe’s visa.

The best interests of minor children in Australia

1. Factors relevant to the best interests of minor children include the nature and duration of the relationship, the extent to which the person is likely to play a positive parental role in the future and the likely effect on the children of any separation: cl 13.2.

2. Mr Bristowe’s children are aged 19, 18, 14, 12 and 11.  He acknowledges that he has been “in and out of their lives” for many years.  They had no contact for five years until November 2016, since when records confirm that his younger children visited him a number of times.  They have also visited him in immigration detention. 

3. Mr Bristowe says he wants to remain in Australia to provide guidance and help his children avoid making the mistakes that he has.  I accept that he is genuine.  However, it is difficult to assess the extent to which he is likely to play a positive parental role in their lives in the future and it is difficult to assess the likely effect on them of his removal from Australia.  Mr Bristowe says, and I accept, that he did not want to involve them in these proceedings but there is nothing before the Tribunal from them to indicate one way or the other how they feel or would be affected.

1. In the circumstances, the best interests of Mr Bristowe’s children must be given limited weight.

Expectations of the Australian community

1. Mr Bristowe came to Australia when he was 18 years old with a history of offending in New Zealand.  Within one year, he had committed an offence and has continued to offend since.  He has shown no regard for the law and the law enforcement framework, and little inclination to change his behaviour until now, when he is facing removal.  His prospects of rehabilitation are doubtful.

2. In my view, many in the Australian community would have some sympathy for Mr Bristowe on account of his deprived upbringing but I am satisfied that the expectations of the Australian community would be that he not be allowed to remain in Australia.

Other considerations

International non-refoulement obligations

1. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the International Covenant on Civil and Political Rights and its Second Optional Protocol.  The obligations require that Australian not forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.

2. In BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96, the Court considered the correct approach to be taken to the exercise of the discretionary power where a person raises, as a reason in favour of revocation of the cancellation, a fear of harm in his or her country of nationality. The issue was whether it was necessary to consider non-refoulement obligations, if a person was able to make a valid application for a protection visa.

3. For reasons which it is not necessary to go into detail here, the majority (Bromberg and Mortimer JJ) held that the exercise of the power to revoke a mandatory cancellation and the power to grant a protection visa are quite different and the availability of an application for a protection visa does not relieve a decision-maker of the need to consider any non-refoulement obligations in a matter such as this.

4. In his letter to the Minister on 9 February 2015, Mr Bristowe stated his “concerns or fears” if returned to New Zealand as:

   My gang affiliation with the mongrel mob, I have great concerns for my life cause I left there, my life is in danger if they find me back there in New Zealand.

5. Mr Bristowe did not refer to these concerns in his subsequent letter to the Minister, and did not raise them at the Tribunal.  He has not provided any evidence to substantiate his claim and there is nothing to suggest that he has been of any interest to any criminal elements in New Zealand in the years he has been in Australia.  I give this consideration no weight.

   Strength, nature and duration of ties

6. The Minister acknowledges that Mr Bristowe has substantial ties to Australia.  He has lived here since the age of 18.  Insofar as he has contact with his family, they are here.  He has few family ties in New Zealand to speak of.  His father and mother have died since he has been in Australia.  He has limited contact with one sister in New Zealand but has lost contact with his other siblings.  He does not know of any extended family members.

7. The strength of Mr Bristowe’s ties to Australia is undermined by his history of offending since shortly after arriving here.  That said, the Minister accepts, and I agree, that this consideration weighs in favour of revocation but says it should be given limited weight.

   Impact on Australian business interests

8. There is nothing to suggest that Mr Bristowe’s removal from Australia would have any impact on Australian business interests.

   Impact on victims

9. While the impact on victims of Mr Bristowe’s offending can be readily imagined, there is no evidence before the Tribunal about this.

   Extent of the impediments if removed

10. The extent of any impediments that Mr Bristowe may face in New Zealand in establishing himself and maintaining basic living standards is to be considered in the context of what is generally available to other citizens in New Zealand, taking into account his age and health, whether there is substantial language or cultural barriers, and the social, medical and economic support available to him in that country: cl 14.5.

11. It is reasonable to conclude that Mr Bristowe will face considerable difficulty in adjusting to life in New Zealand after an absence of more than twenty years.  He has little, if any, support and will no doubt find it difficult to find employment.  However, there are no substantial language or cultural barriers and the social, medical and economic supports available to him in New Zealand would be much the same as in Australia.

12. I find that nothing in this consideration weighs against revocation.

    Any other considerations

13. I am satisfied that there are no other considerations relevant to deciding whether or not to revoke the cancellation of Mr Bristowe’s visa.

CONCLUSION

1. For the reasons above, I find there is an unacceptable risk that Mr Bristowe will again commit serious offences if allowed to remain in Australia.  I am satisfied that the expectations of the Australian community would be that he not be allowed to remain.

2. Insofar as Mr Bristowe’s removal would adversely affect the interests of his minor children, I am not satisfied that their interests outweigh the first two considerations.  Insofar as other considerations weigh in favour of revoking the cancellation of his visa, they do not outweigh the unacceptable risk and the expectations of the Australian community

3. For these reasons, I find that Mr Bristowe does not pass the character test in the Act and I am not satisfied there is another reason why the mandatory cancellation of his visa should be revoked.

4. I affirm the decision under review.

I certify that the preceding 69 (sixty -nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey

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

Associate

Dated: 14 July 2017

Date of hearing:	4 July 2017
Applicant:	In person
Solicitors for the Respondent:	Mr K Eskerie, Sparke Helmore Lawyers