Broadbent and Minister for Immigration and Multicultural Affairs
[2000] AATA 822
•25 August 2000
DECISION AND REASONS FOR DECISION [2000] AATA 822
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/891
GENERAL ADMINISTRATIVE DIVISION )
Re FRANCIS BROADBENT
Applicant
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Dr D. Chappell, Deputy President
Date25 August 2000
PlaceSydney
Decision For the reasons given orally, the matter is referred back to the Minister with a direction that while failing the character test the discretion be exercised not to cancel Mr Broadbent's visa.
(Dr D Chappell)
..............................................
Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – cancellation of permanent transitional visa – expedited hearing under provisions of Migration Reform Act – citizen of Zambia – citizen of the United Kingdom – consideration of validity of s501of the Act – section valid – substantial criminal record – fails to pass the character test – consideration of the discretion – arrived in Australia from Zambia aged seven – convicted as both a juvenile and an adult of a series of offences – consideration of the protection of the Australian Community – consideration of the seriousness and nature of the conduct – crimes serious - consideration of risk of recidivism – prospect that he will assume responsibilities - consideration of deterrence factor – little weight given to this factor - consideration of the expectations of the Australian community – applicant resided in Australia for over almost four decades - consideration of the best interests of the child – future relationship hypothetical and afforded little weight - other considerations – consideration of hardship to applicant – significant hardship - referred back to Minister – applicant's visa not to be cancelled
Migration Act 1958 s501
Msumba v Department of Immigration and Multicultural Affairs 2000 AATA 87
Minister for Immigration and Multicultural Affairs v Paul William Gunner [1998] FCA 831
REASONS FOR DECISION
25 August 2000 Dr D. Chappell, Deputy President
BACKGROUND
Application and Hearing
This is an application by Mr Francis Broadbent (the applicant) for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs (the Minister) pursuant to s501 of the Migration Act 1958 (the Act) to cancel his permanent transitional visa granted originally as a result of the Migration Reform Act on 1 September 1994 (SG3). The refusal was based on a finding that Mr Broadbent was not a person of good character. Section 500(1)(b) of the Act confers jurisdiction on the Tribunal to review this decision. Mr Broadbent was notified of the Minister's decision to cancel his visa on 6 June 2000 (SG3). Mr Broadbent sought review of this decision by the Tribunal in an application lodged on 8 June 2000 (SG4).
Mr Jeffrey Loxton, of counsel, represented Mr Broadbent on a pro bono basis at the hearing. Mr Broadbent gave personal testimony to the Tribunal. The following witnesses also testified on behalf of the applicant:
Ms Kelly Lee Lewis
Mr Ian David Henderson
Ms Nicole Freeman
Mr William Broadbent
Mr Davy BroadbentMr Paul Hardman, solicitor, represented the respondent. The following witnesses also testified on behalf of the respondent:
Ms Linette Joy Young
Ms Jenny Ryan
Mr Graham HartThe Tribunal had before it documents and supplementary documents filed for the purposes of s501G of the Act (the G and SG documents). In the Tribunal's reference to these documents in the balance of this decision the page number referred to are those closest to the top right hand side of the pages of both the G and SG materials. The following exhibits were also received into evidence on behalf of the applicant and the respondent:
Exhibit No. Description Date
A1 Photographs of Brian Young (son of applicant)
A2 Statutory Declaration Francis Broadbent 10/7/2000
A3 Statutory Declaration Francis Broadbent 27/7/2000
A4 Statutory Declaration Francis Broadbent 31/7/2000
A5 Statutory Declaration Kelly Lee Lewis 3/7/2000
A6 Statutory Declaration Ian David Henderson 13/7/2000
A7 Statutory Declaration Nicole Joy Freeman 3/7/2000
A8 Statutory Declaration William Broadbent 3/7/2000
A9 Medical Certificate Dr I. Cram 26/6/2000
A10 Statutory Declaration Davy Broadbent 21/6/2000
A11 Letters Coffs Harbour City Council to Francis Broadbent 26/4/2000
A12 Statement from Karen McKillop 15/6/2000
A13 Statement from John Johnston, TAFE, Grafton Campus 22/6/2000
A14 Letter from Lorraine Seale annexing Module/Course Results; Statement from Lorraine Seale 16/7/2000 20/7/2000
A15 Course Certificates Curtin University (3)
A16 TAFE Certificates 23/12/1995, 21/12/1996, 3/3/1998
A17 Education Report from Lorraine Seale Report from C.A. Drayden-Thompson and Lyndon Newell Reference from Paul Lancaster Reference from John Clark 8/12/1998 10/3/1999 16/12/1999
A18 Statutory Declaration Geoffrey Alan Marriott 11/7/2000
R1 Record of interview with suspected unlawful non-citizen 8/6/2000
R2 Statement Linette Young 27/7/2000
R3 Report from Jennifer Ryan, Queensland Families, Youth and Community Care 227/7/200
R4 Decision from Court of Criminal Appeal 8/12/1994
R5 Faxed letter from British High Commission, Canberra 2/8/2000
Expedited Proceedings
Amendments to the Act came into effect on 1 June 1999 which introduced expedited procedures for the review of certain decisions under s501 of the Act. These procedures apply to the present proceedings and are set out in s500 of the Act. The most significant of these new procedures is that the Tribunal must finalise the review of this matter within 84 days of the day on which Mr Broadbent was notified of the decision. If the Tribunal fails to deliver a decision within that time, the decision is deemed to be affirmed, and the applicant is liable to be removed from the country. The date on which the 84 days expires is 28 August 2000. In the circumstances the Tribunal therefore determined that it should give an oral decision in order to comply with this time constraint, even though the hearing proceeded over three days, and the submissions made on behalf of both parties were substantial and quite complex.
At the commencement of the hearing on 3 August 2000 the respondent conceded that the applicant had complied with the various requirements of s500, including s500(6H) which provides that the Tribunal must not have regard to any information presented orally in support of the applicant's case unless that information was set out in a written statement given to the Minister at least two business days before the Tribunal holds a hearing. Written statements were in fact provided within the requisite timeframe in regard to each of the witnesses that the applicant called to give evidence at the hearing. However, as will be indicated later in this decision, an issue did arise about the applicant giving further oral evidence about a matter which arose during the course of the hearing affecting the hardship that would be caused to him by his removal to the United Kingdom.
It should be noted in general that the Tribunal has still had relatively little experience handling cases which are the subject of these expedited procedures and they do not as yet appear to have received the attention of an appellate court. As McMahon DP said in the recent case of Msumba v Department of Immigration and Multicultural Affairs 2000 AATA 87 the provisions of s500(6H) create their own
inherent quandaries. The subsection is:… cast in inflexible terms. It could be productive not only of inconvenience to both applicant and respondent but also of manifest injustices. Obviously, an unrepresented applicant, particularly one with a non-English speaking background, is adversely effected [sic] by the terms of this subsection. If he or she is unable to prepare the required written statement, this Tribunal would be restricted in its considerations to the same material that was before the decision-maker. This could lead to an unjust situation. The inconvenience to the applicant lies in the fact that the section requires a hearing to be held much earlier than one would normally expect in this Tribunal, thus placing a burden on the applicant to assemble quickly any evidence which he or she may wish to put forward. The section limiting the overall length of the proceedings has no scope for extension having regard to illness or other intervening cause. The requirement that only two business days are necessarily allowed to the respondent is productive of inconvenience to the respondent's advocates in that they have a very limited time in which to analyse that evidence and to produce a detailed response and detailed submissions. Certainly, they would not have time to call evidence in reply. If there was an issue, for example, relating to the best interests of the children of an applicant, it would be impossible to match any professional evidence put forward by an applicant only two days prior to a hearing.
(at para 6)A further and related quandary which is produced by these expedited procedures touches upon the role of the Tribunal itself, and its need to remain impartial and detached from the process of evidence gathering and presentation. The nature of this quandary was made apparent during the preparatory stages of the proceedings when the Tribunal held several directions hearings in order to ensure that the case could proceed to an appropriate hearing. At this preliminary stage Mr Broadbent was being held in immigration detention and he was also not represented by a lawyer. He expressed substantial concern about his inability, while in detention, to obtain various written statements and other materials which he wished to submit to the Tribunal in order to comply with s500 of the Act. His concerns also extended to obtaining information about what was in the best interests of the child involved in this case. More will be said about that primary consideration at a later stage in this decision but during the directions hearing the respondent's representative stated that it would be inappropriate for the Minister to become involved in obtaining and presenting evidence on this matter. The Tribunal indicated that this was not an appropriate response, and that as a model litigant the respondent should seek to provide this information to the Tribunal because any opportunity for the Tribunal to adjourn the matter, and to exercise its own inquisitorial functions, was clearly precluded by both the timeframe and the circumstances of the case. After this exchange the respondent did agree to contact potential witnesses who could provide information about the best interests of Mr Broadbent's child and these witnesses did subsequently provide personal testimony at the hearing.
The Tribunal also issued subpoenas addressed to correctional officials seeking information from their records about Mr Broadbent's performance while in prison and his prospects of rehabilitation. These subpoenas were issued at Mr Broadbent's request and after it had been explained to him by the Tribunal what types of information might be of assistance in the decision making process. However, certain administrative difficulties were encountered by correctional officials in being fully responsive to these subpoenas, some records being kept at different locations which could not be obtained in time to be of use during the hearing.
Challenge to Validity of S501At the outset of the hearing on 3 August 2000, Mr Loxton, on behalf of the applicant, indicated that he wished to make a preliminary submission regarding the validity at law of the respondent's proposed enforcement of and reliance upon s501 of the Act. Mr Loxton said that the applicant contended that in the circumstances of the case s501 of the Act could not be applied because under ss200 and 201 of the Act Mr Broadbent was free from the risk of deportation. Thus the proposed cancellation of Mr Broadbent's visa under s501 was bad at law and unenforceable.
The Tribunal then heard further submissions from both Mr Loxton and Mr Hardman about this preliminary point. The nature of these submissions will appear on the transcript of the proceedings and it is not intended to repeat them here, nor to repeat the subsequent ruling made by the Tribunal that in its view the respondent could proceed under s501 even though it was agreed by both parties that it would not have been possible to deport Mr Broadbent under the provisions of ss200 and 201 of the Act. The Tribunal expressed the view that the circumstances that enliven the power of deportation in s200 are different from those that enliven the power in s501 and while there was some admitted overlap between the criteria in ss201 and 501 the criteria enlivening the powers were quite different: see Minister for Immigration and Multicultural Affairsv Paul William Gunner [1998] FCA 831. Having made this ruling the hearing then proceeded as a review of a decision under s501 of the Act.
LEGISLATIVE AND POLICY PROVISIONSA two stage process is involved in making a decision under s501(1) of the Act on whether to cancel a visa on character grounds. First, the Tribunal must make a decision on whether the applicant passes the character test. If the applicant does not pass that test then the Tribunal still has a discretion whether or not to cancel the visa. That discretion must be exercised in accordance with a direction, given by the Minister under s499 of the Act, regarding visa cancellation under s501. This direction was given by the Minister on 16 June 1999 and is titled "Visa Refusal and Cancellation under s501- No17" (the Policy Direction). The preamble to this Policy Direction states, in part:
This Direction provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501 of the Migration Act 1958 (the Act).
The object of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens. To facilitate this object the Minister has been given a discretion to refuse or cancel a visa where the visa applicant or visa holder does not pass the Character Test. In exercising this power, the Minister has a responsibility to the Parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to refuse to grant visas, or cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it. The powers conferred under section 499 enable directions to be given, in exercising discretions under section 501, for the protection of the Australian community.
Under the Character Test, visa applicants and visa holders must satisfy decision-makers that they can pass the test. When a visa applicant or visa holder does not pass the Character Test, decision-makers will decide whether to refuse the application or to cancel a visa. Exercise of this discretion will take into account a wide range of factors including the expectations of the community, the nature of crimes committed, the non-citizen's links to Australia and any relevant international law obligations.
The Act enables the Minister to give precise written directions on what weight is to be given to each of these factors. These directions are binding to all decision-makers, including merits review tribunals, to ensure a consistency of approach.Reference will be made later in this decision to those provisions of the Policy Directions which are relevant to the Tribunal's consideration of the present matter. But first the Tribunal turns its attention to the evidence presented concerning Mr Broadbent and the application of the character test under s501.
EVIDENCE
Substantial Criminal RecordMr Broadbent did not dispute that he did not pass the character test by reason of having a "substantial criminal record", as defined under s501. Section 501(6)(a) of the Act provides that a person does not pass the character test if the person has a substantial criminal record as defined by s501(7)(a). That section relevantly provides
that:For the purposes of the character test, the person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of twelve months or more; or
(d)the person has been sentenced to two or more terms of imprisonment (whether on one or more occasions), where the total of those terms is two years or more
…
The evidence showed that Mr Broadbent had a substantial criminal record, as defined under both ss501(7)(c) and (d), in that he had been sentenced to terms of imprisonment of 12 months or more for each of 11 separate crimes, as well as being sentenced to two or more terms of imprisonment where the total of those terms was two years or more. A summary of Mr Broadbent's criminal record is contained in Attachment 1. More will be said about that record shortly.
EXERCISING THE DISCRETION
PolicyAs Mr Broadbent has failed to pass the character test the principal issue which must be determined by the Tribunal is whether it should still exercise its discretion under s 501(1) of the Act not to cancel his visa. The Policy Direction refers to a number of factors to which decision makers should have regard when exercising this discretion. These include three primary considerations as well as a number of other considerations. The Policy Direction notes that:
Decision makers should note that no individual considerations can be more important than a primary consideration, but that a primary consideration cannot be conclusive in itself in deciding whether to exercise the discretion to refuse or to cancel a visa. Decision-makers must have due regard to the important placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
(paragraph 2.2)The three primary considerations to which the Tribunal must have regard are:
the protection of the Australia community, and members of the community;
the expectations of the Australian community; and
in all cases involving a parental relationship between a child or children and the person under consideration, the best interests of the child or children.
(paragraph 2.3)
In the present case each of these primary considerations require attention. However, before turning to the evidence presented to the Tribunal on these three primary considerations it is appropriate to provide some general background information about the circumstances which led to the cancellation of Mr Broadbent's visa.
Circumstances Leading to Visa CancellationThe following general facts, and chronology of events, which led ultimately to the cancellation by the respondent of Mr Broadbent's visa, were not in dispute between the parties. Mr Broadbent was born in Northern Rhodesia, now called Zambia, on 21 May 1958 (G: 41). Both of Mr Broadbent's parents were citizens of the United Kingdom. Mr Broadbent had the following to say about his general family background and the circumstances which resulted in their migration to Australia in about 1965:
My parents originally lived in Newcastle in England. My father was a powder monkey. Before I was born, he got a job as a powder monkey in a mine in Northern Rhodesia and with my mother went to work there. My brothers, sister and I were born while he was working at the mine.
I have very few memories of the place. I have no friends or acquaintances there. I remember being at a school when a bus came to take us to a plane and we flew to England. My parents told me that the 'blacks were coming to kill us.' [sic]
When we got to England, I remember that we lived with some relatives of my mother at Leeds. We stayed there for about 9 to 12 months. My father then got a contract to work in the Great Boulder Mine near Kalgoorlie and so the family immigrated to Western Australia.
(exhibit A3)
In his personal testimony to the Tribunal, and in a written statement, Mr Broadbent's father, William Broadbent, confirmed these facts (see transcript 4 August 2000: 95-101). Mr William Broadbent also stated that he had been in Australia during the Second World War as a member of the Royal Fleet Air Arm and had served for one year at Bankstown Aerodrome in Sydney. Mr Broadbent said that all of the family had left what was then Northern Rhodesia on 24 October 1964, which was the day before independence was granted, and the country became known as Zambia. Neither he nor the family had any further contact with Zambia.
In 1965 the family had migrated to Australia. Mr William Broadbent said that miners from the Kalgoorlie/Boulder District had come to England on a recruiting drive and it was then that he had decided to go to work in Western Australia as a "ten pound migrant". He had worked for the Lakeview and Star Mining Company before moving to the East Coast where he had obtained employment in the steelworks at Port Kembla.
Following the family's arrival in the Port Kembla/Wollongong area Francis Broadbent had the following to say about their life:
My father drank a lot. He was an alcoholic and spent a lot of time at Dapto dogs. My mother was often short of money and so my brothers and I started to steel [sic] to get some money. We took cars and sold them for parts.
I was very close to my mother and was very sad and upset when she died. I was about 16 at the time and had already left school. She died of a blood clot in the brain. That particularly upset me because she had been complaining of headaches and none of the doctors, in my view, gave her the proper treatment she needed. She shouldn't have died.
After she died, I started to use cannabis. I became addicted to it and started to sell it to make money to buy more.
(exhibit A3)Mr Broadbent's first formal involvement with the criminal justice system seems to have occurred during 1970. On 3 December 1970 he was convicted of illegally using a motor vehicle and was placed on probation for 18 months by the Wollongong Children's Court (G: 34). Over succeeding years, as is apparent from Attachment 1, Mr Broadbent acquired a significant criminal record. In 1974 he was committed to an institution for a period of time (G: 34). His first gaol term was imposed in 1984 (G: 36). On 29 August 1988 Mr Broadbent was convicted of a series of offences including robbery with wounding and he was sentenced to 12 years gaol on the latter offence (G: 37). On 5 June 1992 he was released on a special category parole order which was due to expire on 25 July 1995 (G: 28; SG: 22).
On 1 May 1993 Mr Broadbent committed a further series of offences which on 10 December 1993 resulted in his conviction on charges of robbery being armed with wounding; possess shortened firearm; malicious wounding; and assault occasioning bodily harm (G: 17). On 22 April 1994 Mr Broadbent was sentenced at the New South Wales District Court at Penrith by Saunders J, to a six year gaol term, with an additional term of two years, in regard to the robbery being armed with wounding conviction, and to other lesser terms of imprisonment relating to the other convictions (see G3). These sentences were subsequently confirmed on appeal to the New South Wales Court of Criminal Appeal on 8 December 1994 (see exhibit R4).
On 23 November 1998 the respondent's officials sent a letter to Mr Broadbent advising him that he could be liable for a visa cancellation under s501, and that he would be interviewed prior to any decision being made about such cancellation (G: 51). On 7 May 1999 Mr Broadbent was released to parole. On 15 July 1999 the respondent's officials sent to Mr Broadbent copies of the amended legislation and the Ministerial Direction regarding visa cancellation (see G:9, 39, 40 and 45). On 11 October 1999 Mr Broadbent was interviewed by officials of the respondent. These officials also interviewed Mr Broadbent's former defacto partner, Ms Linette Young, and the mother of his child, Brian, who had been born on 14 May 1993 (see G: 41).
On 15 December 1999 the Minister's delegate decided to cancel Mr Broadbent's visa under s501 (G: 16). On 21 December 1999 an internal minute was sent to the respondent's compliance section advising them of this decision and indicating that Mr Broadbent should also be informed (SG 2). However, Mr Broadbent does not seem to have been advised of the decision until 6 June 2000 when he was taken into immigration detention and has remained in such detention since that date (see SG 3).
Protection of the Australian CommunityTurning now to the first of the three primary considerations which require attention in this matter, the protection of the Australian community, the Policy Direction notes the following:
2.4 The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community. The Government is especially mindful to take reasonable steps to protect the safety of the more vulnerable members of the community, such as children and young people who are especially at risk. This is of particular importance when the offences in question are in relation to drugs and crimes of violence.
2.5 The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(a) the seriousness and nature of the conduct;
(b)the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).
(paragraphs 2.4-2.5)
Seriousness and Nature of the Conduct
Mr Broadbent's overall criminal record was not, as has already been noted, a matter of dispute between the parties. It was also not a matter of dispute that among the offences committed by Mr Broadbent over a criminal history dating from 1970 were a number which fall within the list of crimes viewed by the government as being very serious, including the possession and supply of illicit drugs (paragraph 2.6(a) of the Policy Direction); armed robbery and home invasion (paragraph 2.6(e) of the Policy Direction); serious theft (paragraph 2.6(l) of the Policy Direction); and assault, wounding and other forms of violence (paragraph 2.6(n) of the Policy Direction).
Paragraph 2.7 of the Policy Direction also states that:
2.7 It is the Government's view that the sentence imposed for a crime is an indication also of the seriousness of the offender's conduct against the community. Decision-makers should have due regard to the Government's view in this respect, including:
(a)the extent of the person's criminal record, including the number and nature of offences, the time between offences, and the time that has elapsed since the most recent offence; and
(b)the repugnance of the crime:
·crimes involving violence or fraud against defenceless persons (such as children, the elderly, the disabled and the incapacitated) are especially repugnant to the whole community.
(paragraph 2.7)
It is clear from an analysis of Mr Broadbent's criminal history that he has been involved in some form of unlawful activity for most of the past two decades and that the gravity of his offending has also increased over this same timeframe. Since 1988 he has spent the great majority of his time in prison following his consecutive conviction of serious offences of armed robbery including the latest conviction for which he received a minimum prison term of six years and a parole period which has still to elapse. This most recent conviction was also acquired at a time when he was serving an earlier period of supervision under parole.
A review of the circumstances surrounding Mr Broadbent's most recent armed robbery conviction indicates that it fits this description of a repugnant crime, involving a deliberate and calculated attack upon persons in their own dwelling with the intent of obtaining drugs and other bootie. This "home invasion" occurred at a time when two children were also in the dwelling. It was only as a result of the escape of one of these children, and the raising of an alarm, that the perpetrators of this robbery were captured by police. The offenders included Mr Broadbent as well as his brother, William.
Both of the Broadbents pleaded guilty to the various charged resulting from the armed robbery. However, at the time of their sentencing Saunders J observed that:
Having seen both the prisoners in the witness box, I am convinced that their desire to give evidence has not been brought about by any genuine remorse on their part. They are prepared to do so merely to save their own skins.
(G: 27)
Risk of Recidivism
The Policy Direction has the following to say in regard to the factors which are relevant to the assessment of a risk of recidivism:
2.10 It is the Government's view that the person's previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism. In particular, the following factors will be relevant to the assessment:
(a)a non-citizen commits a further offence after having been warned previously about the risk of refusal or cancellation;
(b)a non-citizen with several previous convictions in Australia should be considered as having an increased risk of recidivism in light of that past behaviour. In cases where there is a gap or gaps between convictions, the inference may be open that the non-citizen has demonstrated that a substantial period since an earlier conviction is not a reliable indicator that future offences will not be committed; and
(c)the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make.
(paragraph 2.10)
It was not contended by the respondent that Mr Broadbent had received any prior warning about the risk of his visa being cancelled prior to the decision made by the Minister's delegate on 15 December 1999. It was contended, however, that there was a moderate to high risk of Mr Broadbent re-offending based upon his previous convictions (paragraph 2.10(b)) and his failure to be rehabilitated during the course of prior periods of incaceration (paragraph 2.10(c)).
In his written statement, and personal testimony, Mr Broadbent did not dispute that he had failed to become rehabilitated during his earlier prison sentences. He said that when he was sent to gaol in 1998 "I didn't do anything to improve myself. I merely waited for the time to pass." (exhibit A3). When Mr Broadbent returned to prison following his most recent conviction he said that he was:
… very sorry for myself after being sent back to gaol. I thought the court had been too harsh with me. I also felt I had been cheated by the people who had committed the robbery with me and that I had been left to carry the whole of the blame.
One day while in Goulburn Gaol I was talking to another inmate about how I felt. He told me about a course at Curtain [sic] University dealing with counselling. I thought I should do that to find out why I am always getting into trouble. I didn't want to end up in gaol again.
I therefore enrolled in the course. I completed all the courses which were relevant to me to find out where I had gone wrong. I decided it was all due to the cannabis I had taken. With the qualifications I have got from the course, I now want to become a drug counsellor running my own practice. I don't use cannabis any more.
I also undertook number [sic] of TAFE courses. I have already provided details of those to the Tribunal.
(exhibit A3)The Tribunal did have before it a number of documents prepared by persons who had observed Mr Broadbent's performance during the course of his latest prison sentence (see exhibits A12 to A17). These assessments included the following by Ms Lorraine Seale, an education officer at the Grafton TAFE where Mr Broadbent pursued a number of studies:
Francis has been involved in education for many years now. His greatest achievement to date has been his progress through the Addiction Certificate offered by Curtin University.
This would have been completed this year except for difficulties at the university with staffing and marking assignments. This problem ha [sic] now been rectified and Francis is on line to complete his last module by May in 1999.
Francis has been very enthusiastic with the addiction study course. He has publicised the course to others needing to address their offending behaviour. He has also been very obliging in assisting those doing the course with his own knowledge.
Leatherwork has been Francis's [sic] leisure activity. He has achieved both Saddlery 1 and Saddlery 2 from TAFE for his achievements in his leatherwork. He has also been of great assistance to the TAFE teacher in being available to assist others in the craft.
Francis works at 4 Mile Lane in the Nursery. He is called on to use the chemicals required in this industry as he has gained his Farm Chemical Use Certificate with TAFE. This certificate has given him the skill and knowledge to use the chemicals in a safe and controlled manner.
The above skills and qualifications will assist Francis to make his way in the workplace when he is released. Francis is a highly motivated person who should fit back into the community with ease.
(exhibit A17)In another statement, provided by Mr Paul Lancaster, the Manager of Industries at the Grafton Correctional Centre, the following was said of Mr Broadbent:
I am writing this report on behalf of Francis in support of his application for Parole. I have known Francis for four years where he has worked in many key areas as a core worker. Francis has worked very hard to achieve the current level of trust allowing him to work at Four mile lane on the Private Sector Nursery Annexe work experience program. To say Francis is an excellent worker is to sell him short, Francis has worked at four mile for the last twelve months his exceptional skills and attention to detail in the shaping and preparing of plants for sale makes him an important component of the operation. As Manager of Industries, I have cause to visit four mile lane three times a week to both meet with Panama Management and to interact with the Inmate Staff. Francis is allways [sic] jovial and polite I have never been given reason to discuss with Francis any issues of a negative nature which do occur from time to time with other Inmates. I have had many discussions with Francis over the years some of a personal nature when we discuss his Brother [sic] plans for the future and his further education. I am aware Francis has undertaken and completed a fairly intensive course though [sic] external studies which has given him a direction and opportunity to work in a career he has interest in. This dedication demonstrates his commitment to self improvement and a work ethic seldom seen in Correctional work programs. I would have no he situation [sic] in supporting Francis in his application for parole, he has worked on an external work programmed [sic] for twelve months with very little custodial supervision, his work has been to a comparable standard with real world work expectations, he has worked without incident, he has furthered his education and he has family support, I would be prepared to speak personally on his behalf if required.
(exhibit A17)
Mr Broadbent was in fact released to parole, as noted, and it would seem that he performed satisfactorily under the supervision of his parole office until the time that he was taken into immigration detention. While staying on unemployment benefits for a period of this parole he was also able to obtain work as a cleaner.
During the course of his personal testimony to the Tribunal, Mr Broadbent indicated that he intended to get married to Ms Kelly Lee Lewis with whom he had a close relationship. It was also his hope that his son Brian might come to live with him one day. He also said that he would never re-offend. He was deeply and sincerely regretful for his behaviour towards the victims in his cases and he now had engaged in a comprehensive rehabilitation program since his most recent prison sentence. He felt that he would be able to remain free of crime because he had left the company of his past acquaintances in the Wollongong area, including the influence of his brother. He also had to look after his father, now aged 75 who had already suffered a heart attack and was in poor health (see also exhibit A9).
In his submissions made on behalf of the respondent, Mr Hardman contended that little weight should be given by the Tribunal to these claims by Mr Broadbent that he was now rehabilitated. There was also no indication of genuine remorse or contrition on Mr Broadbent's part. In his submissions on this issue, Mr Loxton contended that Mr Broadbent had engaged in a genuine program of reform and he had done it at a time when he was still unaware of the possibility of his visa being cancelled. Mr Broadbent had overcome his addiction to cannabis and since his release he had put his past life behind him by demonstrating that he could take care of his father; move away from the bad acquaintances he had in the Illawarra area; be employed; and forming a close attachment with Ms Kelly Lewis who he planned to marry.
General DeterrenceThe respondent contended that the removal of Mr Broadbent from Australia would act as a general deterrent to other non-citizens committing similar crimes. While not disputing this contention Mr Loxton submitted that given the date of Mr Broadbent's arrival in this country and the circumstances which had led him into crime this could not be seen as being a powerful deterrent to others.
Expectations of the Australian CommunityParagraph 2.12 of the Policy Direction states that:
2.12 The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that that [sic] the Australian community would expect that the person would not be granted a visa or should be removed from Australia. Decision-makers should have due regard to the Government's view in this respect.
On the basis of the evidence before the Tribunal the respondent submitted that due to the abhorrent nature of Mr Broadbent's latest offences it would be the expectation of the Australian community that Mr Broadbent should be removed from Australia. Alternatively, or cumulatively, the demonstrated high risk of Mr Broadbent re-offending was such that the Australian community would expect him to be removed.
Mr Loxton contended that it would be the expectation of the community, given the age at which Mr Broadbent had arrived in Australia and his general absorption into the Australian community and his rehabilitation, that he should not be exiled to a place where he would be considered a total stranger.
Best Interests of the ChildIt was not a matter of dispute that Mr Broadbent was the father of Brian Young who was born on 14 May 1995 and is now about seven years of age. The Policy Direction notes that in general terms "the child's best interest will be served if a child remains with its parents" (paragraph 2.15). The Policy Direction also indicates that countervailing considerations may point to the child's best interests being served by separation from a non-citizen, including but not limited to evidence of abuse or neglect, and also of any physical or emotional trauma arising from a non-citizen's conduct (paragraph 2.15(a) and (b)). It was not contended that any of these countervailing considerations applied in Mr Broadbent's case but the Tribunal did receive both documentary and personal testimony about Brian Young's situation from his natural mother, Ms Linette Joy Young, and from Ms Jennifer Ryan, a Family Services Officer with the Queensland Families, Youth and Community Care Department (see exhibit R3).
Mr Broadbent indicated that he had only a short relationship with Ms Linette Young, Brian's mother. He had met Ms Young through a friend who had come to visit him while he was in Bathurst Gaol. After they had broken up their relationship he had no idea that she was pregnant and the first that he heard about that was when he was in Long Bay Gaol after being apprehended for the offences he committed in Lithgow. It was then that Ms Young had contacted him to say that she had given birth to Brian and she sent him a photograph of his son (see A1). Evidence showed that Mr Broadbent had only seen his son on two occasions, both in 1995 while he was still in prison, and Brian was approximately two and a half years old. Since his release from prison in May 1999 Mr Broadbent had not made any direct contact with the Queensland Department of Family Services in regard to Brian's well-being although in his testimony Mr Broadbent claimed to have tried to telephone these officials and to have left a message for them to get in contact with him.
Jennifer Ryan, Brian's departmental case officer since mid-1998, indicated the welfare authorities had first become involved with Brian and his family in 1994 due to the receipt of several child protection notifications alleging neglect of Brian by his mother when she was under the influence of alcohol and prescription drugs. Following this initial notification a number of care and protection orders were made and Brian was taken into protective custody on several occasions. In July 1996 Brian was placed in the care and protection of the Department as a result of ongoing child protection concerns. His case plan and current situation was as follows:
CASE PLAN
· The Department is continuing to work with Linette Young towards her re-unification with Brian. Linette is currently having weekly contact visits with Brian for a duration of one hour. It is envisaged that contact visits will continue to increase in working towards the goal of re-unification.
· It is believed that Brian has had personal contact with his Father on one occasion in the last two years. It is believed that Ms Young initiated this contact visit between Brian and his Father. Mr Broadbent has not contacted the Department on any occasion to request contact with Brian or to enquire about his well-being.
· The Department would endeavour to facilitate personal contact visits between Brian and his Father, should Mr Broadbent desire this.
· It is apparent that Brian expresses some confusion about his Father, and it would not appear that he has a memory of his Father. Brian has been known to refer to Ms Young's partners' [sic] as "Daddy", despite attempts to correct such behaviour. It is believed that Ms Young has encouraged Brian to develop knowledge of his natural Father.
CURRENT SITUATION
· Brian Young is currently placed with Departmental Careproviders in the Wynnum area. He has been placed with these Careproviders since 26th June 1999. It is planned that Brian will remain in this placement until such time that he is able to be re-united with his natural family.
· Brian is vey well settled in his current placement, and does not display any emotional distress at being placed away from his Mother. Brian interacts well with his Mother during their weekly contact visits and appears to have a close emotional bond with her. Brian does not display any distress at the conclusion of contact visits, and adjusts well to moving between the care of his Mother and Careproviders.
· As stated, it is unclear whether Brian has any memory of his natural Father, as he does not speak of or make reference to his father. If Mr Broadbent was requesting contact with Brian, the Department would endeavour to ensure that this occurred. It is likely that any contact visits between Brian and his Father would initially be supervised, allowing Departmental staff to ensure appropriate interaction between them.
(R3)
Ms Linette Young indicated that she had a difficult relationship with her existing partner. It should be noted that under this head the Tribunal issued a confidentiality order in relation to certain statements contained in Ms Linette Young's declaration (see transcript: 3 August 2000). Ms Young also indicated that she had become addicted to prescription drugs since the age of about 19 or 20 and had suffered several mental breakdowns. She was currently receiving psychiatric counselling and assistance and hoped that she would eventually be able to regain custody of Brian. She said that she had spoken to Mr Broadbent and they had discussed Brian's situation. She would be opposed to Mr Broadbent obtaining custody but not opposed to him having access to Brian. To her knowledge Brian had only seen his father twice and this was when he was very young and Mr Broadbent was in prison (Exhibit R2). Ms Young said that she had also tried to arrange for Mr Broadbent to see Brian since he had moved to Coffs Harbour and had also sent him money for a transport fare to allow him to come to Queensland.
Having regard to this evidence Mr Hardman contended that Mr Broadbent had only put forward a subjective desire to begin a relationship with his son and that the objective facts did not establish a genuine desire or intention on his part to engage in a parental relationship with Brian. Mr Hardman also referred to paragraph 2.16(b) of the Policy Direction which states that when assessing the nature of a relationship between a parent and child decision makers should have regard to:
2.16 …
(b)the duration of the relationship including the number and length of any separations and reason/s for the separation; the hypothetical prospect for developing a better/stronger relationship in future (whether or not there has been significant recent contact) would normally be given relatively less weight than the proven history of the relationship based on past conduct;
Mr Hardman submitted that Mr Broadbent was doing no more than advancing a hypothetical prospect of establishing a relationship with Brian and that therefore this relationship should be given limited weight. In contrast Brian did share a parental bond with his mother who had weekly contact visits with him.
Mr Loxton submitted, on Mr Broadbent's behalf, that the issue which had to be determined by the Tribunal was what was in Brian's best interests in the future, rather than his father's interests of being with his son. Brian was an Australian citizen who was already subject to care orders and who needed more than most children a steady and stable influence in his life. Mr Broadbent, his natural father, wished to accept that role once circumstances permitted.
Other ConsiderationsParagraph 2.17 of the Policy Direction refers to a number of other matters which, although not primary considerations, may be relevant to the exercise of the discretion under the Act. The Policy Direction states, in part, that:
2.17 It is the Government's view that where relevant, it is appropriate these matters be taken into account but that they be given less individual weight than that given to the primary considerations. These other considerations may include:
(a)the extent of disruption to the non-citizen's family, business and other ties to the Australian community;
(b)genuine marriage to, or de facto or interdependent relationship with, an Australian citizen, permanent resident or eligible New Zealand citizen:
· in assessing the compassionate claims of the Australian partner (Australian citizen, resident or eligible New Zealand citizen), decision-makers must consider the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen was of character concern at the time of entering into or establishing the relationship.
(c)the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some way dependant on the non-citizen for support which cannot be provided elsewhere;
(d)family composition of the non-citizen's family, both in Australia and overseas;
(e)the likelihood of the non-citizen seeking to evade any outstanding legal matter or on-going liability;
(f)the likelihood of the non-citizen breaching any conditions attached to the outstanding legal or on-going matter, any cost or bilateral implications of such a breach (eg extradition);
(g)the nature and seriousness of the offence(s) or alleged offence(s) (in the context of seeking to evade an outstanding legal matter);
(h)any evidence of rehabilitation and any recent good conduct;
(i)whether the application is for a temporary visa or permanent visa;
(j)the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances; and
(k)the fact that a non-citizen has been formally advised in the past by an officer of the Department of Immigration and Multicultural Affairs about conduct which brought him or her within the deportation provisions at section 200/201 of the Act or the visa refusal and cancellation provisions at section 501.
(Policy Direction 2.17)
As already noted, Mr Broadbent's father gave personal testimony to the Tribunal in the course of which he referred to the care and assistance that his son now provided to him in Coffs Harbour where they both resided. Mr William Broadbent said that he had been thrown out of his home in Illawarra by his son William and that he had then gone to Western Australia to stay with another son, Davy, until Francis was released from prison and they were then able to live jointly in Coffs Harbour.
Ms Kelly Lewis, Mr Broadbent's fiance, also gave personal testimony to the Tribunal in which she confirmed that Mr Broadbent was caring for his father and that she also had a close and caring relationship with Francis. It was their intention to get married. She had not been aware that he was facing possible removal from the country until the immigration authorities had taken him away. If the Tribunal were to affirm the decision to cancel his visa and Mr Broadbent was sent to Zambia she would not follow him there because she had grandparents in Coffs Harbour and her father was also dying and needed her assistance. She said that it would be fine for Mr Broadbent's son Brian to come and live with them after their marriage (see transcript 4 August 2000: 80-84).
Mr Broadbent's brother Davy, who now resides in Western Australia, also gave personal testimony to the Tribunal. He described the unhappy family life that he and his brothers had endured and said that he had escaped to Western Australia in order to get out of the bad surroundings in Illawarra (see transcript 4 August 2000: 106-110).
On the basis of this evidence it was not disputed by the respondent that Mr Broadbent's father and fiance and fellow family members and friends would experience hardship as a result of his removal from Australia. It was contended, however, that the evidence did not establish that Mr Broadbent's father was totally or substantially dependent upon him and that there were also other members of the family who could assume the role of carer if necessary. In any event these were only secondary considerations.
Hardship to ApplicantHardship to the applicant is not a consideration referred to in specific terms in the Policy Directions' list of factors in 2.17 which are to be taken into account by decision makers. However, this list of factors is not intended to be exclusive and it was not disputed by the respondent that the Tribunal should have regard to possible hardship occurring to Mr Broadbent as a result of his removal from the country, but only as a secondary consideration. It was also acknowledged that Mr Broadbent would suffer such hardship by reason of such removal.
At all material stages of the proceedings up to and including the point at which the applicant had completed the presentation of his evidence the assumption was that if Mr Broadbent's visa were to be cancelled, and he was removed from Australia, that removal would be to Zambia. However, before commencing the presentation of its evidence the respondent indicated that it proposed to tender a document from the British High Commission in Canberra which purported to indicate that Mr Broadbent was a citizen of the United Kingdom and not of Zambia, and that therefore any removal would be to the United Kingdom and not Zambia (see transcript 4 August 2000: 104-105). As a result of this disclosure, and at the request of Mr Loxton, Mr Hardman agreed that an official from the British High Commission should be made available to give evidence in person about this issue. Subsequently, Mr Graham Hart, First Secretary at the British High Commission in Canberra, gave evidence confirming that Mr Broadbent would be entitled to United Kingdom citizenship by virtue of his father's birth in the United Kingdom and by reason of Mr Broadbent's mother being married to Mr Broadbent's father at the time of Mr Broadbent's birth. Mr Hart also gave evidence that Mr Broadbent, being a British citizen, would be entitled to claim social security benefits in the United Kingdom although he was not in a position to say whether there would be an eligibility period before such a payment would accrue.
After receiving this evidence from Mr Hart, Mr Loxton sought the permission of the Tribunal to recall Mr Broadbent in order to ask him further questions about any hardship that he might experience in being removed to the United Kingdom rather than, as had been anticipated in the course of his earlier examination in chief and cross-examination, to Zambia. The Tribunal then raised the issue as to whether such testimony would be allowed under the provisions of s500(6H). After some discussion about the issue, and with the concurrence of Mr Hardman, Mr Broadbent was recalled to give this evidence. However, upon the completion of the hearing on 5 August 2000 and with an understanding that both parties would prepare and lodge written submissions about their respective cases, the respondent withdrew its concession that the Tribunal could have regard to the information given in oral testimony by Mr Broadbent about his hardship should he be removed to the United Kingdom. In its written submissions the respondent contended that this information had not been set out in any written statement given to the Minister at least two business days before the hearing. It was further stated that Mr Hardman, the respondent's legal representative, did not have instructions to make this concession. It was said that the submission was incorrect in law and that the information which had been given by Mr Broadbent in respect of hardship in the United Kingdom was information obviously in support of his case. It was therefore information which came within the confines of s500(6H) and had to be disregarded by the Tribunal. The applicant's solicitor had been advised of this revised position of the respondent.
Mr Loxton, upon being notified of this revised position of the respondent, filed a further written submission in which he contended that this revised approach was harsh and unconscionable. It was also not in accord with the rules of natural justice which applied to applicants in such matters and which were already severely restricting the preparation of the applicant's case and his tender of evidence.
Given this situation the Tribunal then convened a telephone directions hearing with the parties in order to canvass the issues which had been raised. At this directions hearing, held on 10 August 2000, the respondent reaffirmed its position; contended that the applicant had already been on notice that Mr Broadbent was not a citizen of Zambia; and had not acted in bad faith. It was also submitted that it would be contrary to the Act to adjourn the proceedings in order to seek a written statement in relation to the hardship issue and in order to comply with s500(6H).
Mr Loxton submitted that it would be an extraordinary situation to allow the respondent complete control of the evidence in these matters. The letter from the British High Commission (R5) was a new and substantial point that needed to be considered in this case. At no stage had the applicant referred to an alternative locus of citizenship other than Zambia. The decision to deport Mr Broadbent to the United Kingdom was made after the commencement of the hearing and there was no provision in the Act for dealing with new evidence. In the absence of such a provision the ordinary rules of natural justice must apply. The applicant had agreed to the tender of the evidence from the British High Commission on the basis that Mr Broadbent would be able to give oral evidence in relation to this development. If the respondent's legal representative was now acting outside his instructions then that agreement was void and the Tribunal should only consider the removal of Mr Broadbent to Zambia. Failing that, the matter should proceed on the basis that all of the oral and documentary evidence which had been given on this issue should be considered by the Tribunal.
Having regard to these various submissions the Tribunal has reached the conclusion, most reluctantly, that the position now taken by the respondent is correct in law despite being a clear denial of the principles of natural justice. It is quite apparent that the procedural requirements of s500 take no account of the possibility of new contentions arising in the course of a hearing of the type which is being confronted here. When such a new issue does arise out of any evidence which is to be given in support of the applicant's case, and which relates to that issue, it must meet the requirements of s500(6H). It might be thought that one way of remedying that situation would be to adjourn the matter for several days to enable a written statement to be prepared and served on the respondent, as was suggested in the present case. However, quite apart from the relentless ticking of the decision making clock which cannot be stopped for any reason, including inappropriate or unconscionable actions on the part of the respondent, the wording of the section would seem to envisage that once the hearing has commenced no such written statements can then be filed no matter what new circumstances or evidence may arise.
It may be that at some subsequent stage this issue will reach the attention of an appellate court and a different view will be taken. Meanwhile, this might well be one of the areas that can receive urgent attention as part of any review of the early experience with this new legislation, and the identification of problems which arise from its highly restrictive provisions.
Having reached this conclusion the Tribunal will disregard entirely the additional oral evidence given by Mr Broadbent about any hardship he would experience if removed to the United Kingdom. In regard to the documentary and personal testimony provided by the British High Commission officials the Tribunal, having accepted this evidence, does not feel it can now treat it as being null and void because is it was obtained under what might be viewed as a tainted process. The evidence is clearly relevant and it would be inappropriate to ignore it, or to proceed as Mr Loxton submitted, on the basis that Mr Broadbent will be removed to Zambia if his visa is cancelled. Ultimately, it is for the respondent to determine where Mr Broadbent should be sent and that would clearly be affected by his citizenship. In the present case the Tribunal accepts that this is certainly British, and may also be Zambian. The respondent has already indicated that it is proceeding on the basis of a removal to the United Kingdom, should the decision under review be affirmed.
CONCLUSION
As the Policy Direction indicates:
The government is mindful of the need to balance a number of important factors in reaching a decision whether or not to refuse or cancel a visa. … Decision makers must have due regard to the importance placed by the government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
(Policy Direction: 2.2)The Tribunal has already expressed its views in regard to the nature and the seriousness of Mr Broadbent's criminal conduct. His pattern of offending has been both persistent and of escalating gravity. He seems to have been undeterred in the past by a series of custodial sentences and committed his most recent armed robbery and home invasion while enjoying the privileges of parole. He professed to have been addicted to cannabis at the time that he committed a number of offences, including his most recent, although his evidence on this point was somewhat conflicting. The fact that he has continued to commit serious crimes is of obvious relevance both to the framework set for decision makers by the Policy Direction, and to his general prospects of rehabilitation.
In considering what are the risks of Mr Broadbent re-offending there are some more encouraging signs from the appraisals made of his performance while in prison since his conviction and sentence in 1994. This evidence does suggest that Mr Broadbent has, following years of apparent indifference to any rehabilitative programs, determined that he should obtain an understanding of his addictive behaviours and acquire work skills that would allow him to make a more positive contribution to the community. The Tribunal was impressed by the evidence of his successful completion of tertiary studies at Curtin University as well as the most positive appraisals provided by his correctional and educational supervisors regarding his study and work practices. Sufficient trust was placed in Mr Broadbent to allow him to be given a security classification which allowed him to work outside the prison walls in a nursery. He appears to have been able to maintain this employment and to gain the full confidence of his employers. He has also been able to obtain some work after his release to parole.
There are also other signs of a maturing on Mr Broadbent's part including his new relationship with Ms Lewis, and his ability to act as a care-giver for his aging father. The nature of his relationship with his father is quite significant when it is put in the broader context of the family background experienced by Mr Broadbent and his other siblings. There is no doubt that Mr Broadbent comes from a highly dysfunctional family and that this explains to a certain degree, although does not of course excuse, his career of offending. The nature of this dysfunction was perhaps most graphically and tragically voiced by Mr Broadbent's brother, Davy, who during the course of his personal testimony to the Tribunal said he recalled when they lived in the Illawarra area that they had resided in a small flat which was alive with fleas. Their father was an alcoholic and even though their mother had done her best she could never discipline them adequately. Davy Broadbent said that:
I've got no pleasant memories at all. In fact, the only two memories that I have that are positive from my childhood are on two occasions when I was sent to foster homes and I was loved for – and, you know, just really loved and cared for. I was just shown real love, and those two are the only two real impressions that I have of my childhood.
Mr Davy Broadbent went on to say the following:
You've – do you remember your father becoming an alcoholic?---No, it was always just growing up Dad would go to work and then he would go from work to the hotel and then he would come home late at night, we might be in bed though, that's just the way it was.
Do you remember how the family was coping with your father drinking all the time?---Well, it made my mother constantly sick because there was never no money. And I remember we had – it was terrible, we had to, you know, go down to the fish and chip shop in town and the fruit and vegetable shop and just sort of ask for things on credit, Mum was that sick most of the time. I think Mum ended up having to go a couple of times to, you know, like a mental respite hospital so that she could get the care. I think that's the two times that we went off to these people's places. But, I've – I just felt really robbed and through my own father's weaknesses we all suffered, you know. No discipline and no direction, and - - -
Having been in Western Australia for so long you haven't had many opportunities to see Francis for the last 20-odd years, have you?---No, I've probably been back to Illawarra probably on half a dozen occasions, I've flow over to see the family. And then on a couple of occasions Francis was in prison and I went up to see him, I think it was Grafton and the other place was – I just can't think of it, but there's a race, a special race up that way, Goulburn I think. No, it wasn't Goulburn, it was some other place. I went to see him.
(transcript 4 August 2000: 108)Based on this evidence the Tribunal believes that there is now a quite reasonable prospect of Mr Broadbent accepting responsibilities not only for his father but also for future partner, Ms Lewis, and for his son Brian. In regard to the primary consideration as to what is in Brian's best interests the Tribunal found Ms Ryan to be a most credible and helpful witness who gave a frank and quite positive appraisal of Brian's present status as a ward of the State. However, she also indicated that there was a plan to restore Brian to the custody of his natural mother although there were challenging disabilities to be overcome in the form of Linette Young's continuing drug addiction and associate depressive illness. Ms Ryan felt that there would be value in Brian learning about his natural father and establishing both contact and a relationship with him and she said that this would be facilitated if Mr Broadbent initiated a request.
The respondent contended that there was no evidence of any substantial relationship between Mr Broadbent and his son and that any future relationship was merely hypothetical and therefore should be afforded very little weight. The Tribunal acknowledges that Mr Broadbent has had extremely limited contact with his son in the past. This can in part be explained by his imprisonment and in part by the general breakdown in the parenting abilities and responsibilities of Brian's mother. In his personal testimony to the Tribunal Mr Broadbent did express a desire to form a true relationship with Brian. Such a relationship would be clearly all but impossible to initiate or maintain should Mr Broadbent be removed from the country. It is a relationship which the Tribunal believes would be in the long-term interests of Brian, especially if, as seems likely, his natural mother may continue to experience difficulties in fulfilling her full parental responsibilities. There was also troubling evidence that her partner is not a satisfactory alternative father figure for Brian.
Turning to the third of the primary considerations, namely, that of the expectations of the Australian community, there is no doubt that the community has every right to expect that a non-citizen like Mr Broadbent should obey Australian laws and if he represents a threat to the community, be removed from it. The Tribunal believes that it is also an expectation of the Australian community that a person who comes to Australia at a tender age, as did Mr Broadbent, and who grew up in this country, should be viewed in a somewhat different light from a non-citizen who has not spent his or her formative years in Australia. It would probably be a significant surprise to most Australians that a non-citizen who came to this country under circumstances similar to those of Mr Broadbent, should still be able to be removed from Australian shores after residing here for almost four decades. It might be anticipated that most citizens would probably assert that anyone who had lived in Australia for that length of time is in essence a person who has been completely moulded and influenced by that experience and is now the responsibility of this country no matter what they have done.
Despite the repugnant nature of Mr Broadbent's criminal offending the Tribunal is persuaded, on a fine balancing of the evidence before it, that there are sufficient factors to justify the exercise of the discretion in his favour. These factors comprise the positive evidence that has been mentioned of his moves to rehabilitate himself; the best interests of his son Brian; his role as a care-giver for his father; and the strong and virtually unique ties that he has established with Australia through his residency here since a very early age. To remove him from this country at this juncture would cause him significant hardship no matter where he is sent. Clearly, that hardship would not be nearly as great if the location were to be the United Kingdom rather than Zambia. However, the Tribunal does not believe that in the present circumstances such removal is justified and accordingly the matter is referred back to the Minister with a direction that while failing the character test the discretion be exercised not to cancel Mr Broadbent's visa.
ATTACHMENT 1
MR BROADBENT'S CRIMINAL HISTORY
3/12/70 Mr Broadbent is convicted of:
· illegally using a motor vehicle and is put on probation for 18 months by the Wollongong Childrens Court - G, p34.
9/12/71 Mr Broadbent is convicted of:
· 2 counts of break, enter and steal and put on probation for 2 years with a good behaviour bond on each count
· malicious injury and put on probation for 2 years with a good behaviour bond - G, p34
14/3/74 Mr Broadbent is convicted of:
· break, enter and steal and was committed to an institution. He also received an 18 months suspended sentence, $100 9-month good behaviour bond and was required to pay compensation of $25 - G, p34.
18/7/74 Mr Broadbent is convicted of:
· 19 counts of stealing a motor vehicle and committed to an institution
· break, enter and steal and committed to an institution - G, p34.
15/6/76 Mr Broadbent is convicted of:
· being found on premises frequented by reputed drug offenders and fined $50 - G, p35.
3/5/77 Mr Broadbent is convicted of:
· driving over the prescribed concentration of alcohol and fined $150 and had his licence disqualified for 12 months - G, p35
25/10/77 Mr Broadbent is convicted of:
· smoking a prohibited drug (indian hemp) and fined $50 - G, p35.
22/11/77 Mr Broadbent is convicted of:
· driving whilst disqualified and fined $150. He was automatically disqualified from driving for 6 months from 3/5/78 - G, p35.
14/8/79 Mr Broadbent is convicted of:
· stealing a motor vehicle and fined $400 - G, p35.
28/4/81 Mr Broadbent is convicted of:
· stolen goods in custody and fined $200
· supplying a prohibited drug (indian hemp) and received a $1000 self recognizance to be of good behaviour for 3 years
· smoking a prohibited drug (indian hemp) and fined $200
· possessing utensils to smoke a prohibited drug and fined $200
· possessing a prohibited drug (indian hemp) and fined $200 – G, p35.
29/7/81 Mr Broadbent is convicted of:
· driving under the influence of a drug and fined $300 and had his licence disqualified for 12 months - G, p36.
4/8/82 Mr Broadbent is convicted of:
· stealing and sentenced to community service or 2 months gaol - G, p38.
27/3/84 Mr Broadbent is convicted of:
· driving whilst unlicenced and fined $200 - G, p36.
21/6/84 Mr Broadbent is convicted of:
· larceny and sentenced to 3 year gaol with an non-probation period of 6 months - G, p36.
11/3/86 Mr Broadbent is convicted of:
· gailing to appear at court and fined $80 - G, p36.
23/5/86 Mr Broadbent is convicted of.
· break, enter and steal and received a $1000 self recognizance to be of good behaviour for 4 years under the supervision of the probation and parole service. He was also required to pay compensation of $121.95 - G, p36.
18/8/87 Mr Broadbent is convicted of:
· driving in a dangerous manner and fined $500 and had his licence disqualified for 12 months - G, p37.
29/8/88 Mr Broadbent is convicted of:
· 2 counts of supplying prohibited drug (cannabis) and sentenced to 5 years gaol on each count with a non-parole period of 7 years - G, p36.
· robbery with wounding and sentenced to 12 years gaol - G, p37.
· possess shortened firearm and sentenced to 5 years gaol - G, p37.
· robbery being armed and sentenced to 10 years gaol with a non-parole period of 7 years – G, p37.
· possess shortened firearm again and sentenced to 5 yrs gao with a non-parole period of 7 yrs -G, p37.
5/6/92Mr Broadbent is released on a special category parole order which is due to expire on 25/7/95 - G, p28, Supp G, p22.
1/5/93 Mr Broadbent commits at Lithgow, NSW:
· robbery being armed with wounding
· possess shortened firearm
· malicious wounding
· assault occasioning actual bodily harm - G, p17.
14/5/93 Brian Francis Young is born - G, p41.
10/12/93 Mr Broadbent pleads guilty to:
· robbery being armed with wounding
· possess shortened firearm .Malicious wounding
assault occasioning actual bodily harm - G, p17
22/4/94 Mr Broadbent is sentenced for :
robbery being armed with wounding – 6 years gaol minimum and an additional term of 2 years - G, p17, p36
possess shortened firearm - fixed term of 4 years gaol - G, p1, p37
malicious wounding - fixed term of 3 years and 6 months gaol – G, p18, p37
assault occasioning actual bodily harm - fixed term of 3 years gaol - G, p18.
7/12/94Mr Broadbent's appeal to the Court of Criminal Appeal was heard and his appeal was dismissed. The whole of the time served is to count - G, p18.
17/10/96Whilst in gaol, Mr Broadbent was found possessing and drinking alcohol in breach of prison rules and punished - Supp G, p23.
9/3197Whilst in gaol, Mr Broadbent failed to comply with supervision and was reprimanded and cautioned - Supp G, p23.
23/11/98DlMA sends Mr Broadbent a letter advising him that he may be liable for visa cancellation under s501 and that he will be interviewed prior to any decision being made to cancel his visa - G, p51.
7/5/99Mr Broadbent is released on parole and has been on parole and has been on unemployment benefits since then – G, p43; p17; Supp G, p22
I certify that the 74 preceding paragraphs are a true copy of the reasons for the decision herein of Dr D. Chappell, Deputy President
Signed: .....................................................................................
AssociateDate/s of Hearing 3, 4 and 7 August
Date of Decision 25 August
Counsel for the Applicant Mr J Loxton
Solicitor for the Respondent Mr P Hardman
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