Brown and Minister for Immigration and Citizenship

[2009] AATA 682

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 682

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/2879

GENERAL ADMINISTRATIVE DIVISION        )

Re             Steven BROWN

Applicant

AndMinister for Immigration and Citizenship

Respondent

DECISION

TribunalMr R P Handley, Deputy President

Date9 September 2009

PlaceSydney

DecisionThe decision under review is affirmed.

………………[sgd]…………………...

Mr R P Handley
  Deputy President

CATCHWORDS

IMMIGRATION – visa cancellation - character test - substantial criminal record - whether Tribunal should exercise discretion to cancel applicant's visa pursuant to s 501(2) of the Migration Act 1958 - Minister’s direction issued under s 499(1) of the Migration Act 1958 - Direction No 41 applied – primary considerations - protection of the community - risk of recidivism - not open to the Tribunal to engage in any enquiry which would impugn the sentence – length of time that a person has been ordinarily resident in Australia – other considerations - family ties and the nature and extent of any relationship with the Australian community - decision under review affirmed

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RELEVANT ACT

Migration Act 1958 (Cth): s 501

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CITATIONS

Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234; (1999) 56 ALD 349; [1999] FCA 1197,; (1999) 56 ALD 349; [1999] FCA 1197

Re Heyward and Minister for Immigration and Citizenship [2009] AATA 536

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OTHER AUTHORITIES

Direction No 21 (superseded)

Direction No 41

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REASONS FOR DECISION

9 September 2009 Mr R P Handley, Deputy President

1.      Mr Brown applied to the Tribunal for the review of a decision of a delegate of the Minister for Immigration and Citizenship to cancel Mr Brown’s visa on the ground that he did not pass the character test.

background

2.      Mr Brown, also known as Jason Bentley, was born in New Zealand, where he is a citizen, and is aged 28.  He entered Australia on 1 September 2003.  He was issued with a Class TY, Subclass 444 Special Category (Temporary) visa which permitted him to remain in Australia indefinitely.

3.      Mr Brown was convicted of a number of offences while living in Australia:

(a)On 15 September 2004, he was convicted of four offences connected with driving/riding an unregistered and uninsured vehicle while unlicensed.  He incurred fines and court costs.

(b)On 7 December 2004, he was convicted of three offences connected with driving/riding while unlicensed, giving a false name or address and driving with a mid-range blood alcohol content.  He incurred fines, disqualification from driving and court costs.

(c)On 18 July 2005, he was convicted of seven offences connected with driving recklessly while disqualified an unregistered and uninsured vehicle displaying a misleading number plate, being in custody of a knife and possession of equipment for administering prohibited drugs.  He incurred fines, disqualification, a community service order and court costs.

(d)On 8 May 2006, he was convicted of driving while disqualified with a mid-range blood alcohol content and sentenced to eight months' imprisonment, disqualification and ordered to pay court costs.

(e)On 31 August 2006, he was sentenced to six months’ imprisonment for the offence of driving recklessly.

(f)On 15 February 2007, he was convicted of two counts each of taking and driving a vehicle without consent, possessing implements to enter and drive a conveyance, driving while disqualified and obtaining money by deception, and was sentenced to 12 months' imprisonment and disqualification.

(g)On 4 February 2009, he was convicted of nine offences including breaking and entering, stealing, recklessly wounding, destroying or damaging property, assaulting a police officer in the execution of his duty and resisting or hindering such an officer, and was sentenced to 22 months' imprisonment commencing on 4 February 2008.

4.      Mr Brown was released from prison on 21 June 2009 and is now in immigration detention at Villawood.

5. On 20 June 2007, the Department of Immigration and Citizenship (the Department) notified Mr Brown of its intention to consider cancelling his visa under s 501(2) of the Migration Act 1958 (Cth) (the Act). After considering Mr Brown’s response, the Department subsequently decided not to cancel his visa but, by letter dated 30 August 2007, issued Mr Brown with a formal warning that any further offending could have serious consequences, with the cancellation of his visa being reconsidered.

6.      On 24 April 2009, the Department notified Mr Brown that the cancellation of his visa was to be reconsidered and invited Mr Brown to respond.  On 16 June 2009, the Department notified Mr Brown that a delegate of the Minister had decided to cancel his visa.

7. Section 501(2) of the Act provides that the Minister may cancel a visa if “the Minister reasonably suspects that the person does not pass the character test”. Section 501(6) provides that a person does not pass the character test if the person has a ’substantial criminal record’. ‘Substantial criminal record’ is defined in s 501(7) as, among other things, having been sentenced to a term of imprisonment of 12 months or more.

8.      In February 2007, Mr Brown was sentenced to a term of imprisonment of 12 months and in February 2009 to a term of imprisonment of 22 months.  Thus, he does not pass the character test.

9.      It was therefore open to the Minister to cancel Mr Brown’s visa.  In exercising this discretion, the decision-maker must apply Ministerial Direction No 41 on Visa Refusal and Cancellation under section 501 of the Act (Direction No 41).  This superseded Direction No 21 and came into effect on 15 June 2009.  Direction No 41 contains a number of “primary” and “other” considerations to which the decision-maker must have regard when considering whether to exercise the discretion to refuse or cancel a visa.

10.     The primary considerations in Direction No 41 are:

…

10.The primary considerations

(1)In deciding whether to refuse to grant a person a visa or cancel a person’s visa, the following (the primary considerations) are to be considered:

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

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

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

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

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

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

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11.     These considerations are elaborated on by a range of factors to which regard must be had.  There are also a number of other considerations that, where relevant, must be taken into account but generally, in accordance with Direction No 41 paragraph 11(1), they should be given less weight than the primary considerations.  Those other considerations are discussed below.

protection of the australian community

12.     Direction No 41 lists two matters relevant to this consideration: the seriousness and nature of the conduct and the risk that the conduct may be repeated.

13.     In relation to the seriousness of Mr Brown’s conduct, I note that clause 10.1.1(1) of Direction No 41 states “Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community”.  Further, clause 10.1.1(2)(d) lists reckless injury and assault as examples of offences and conduct that are considered serious.  Mr Brown has been convicted of offences of recklessly wounding and also of assault.  I note that the magistrate who sentenced Mr Brown on 4 February 2009, Magistrate Dakin, commented, “it is my view that the defendant's violence, whilst it may be alcohol-related, was escalating and becoming a frequent part of his life”.  The Magistrate noted a strong need for deterrence, including, generally, in respect of those who “severely assault another person to achieve their own ends and to satisfy some sort of revenge”.  He commented on Mr Brown’s need for continued alcohol rehabilitation.

14.     Mr Brown denied that he had committed the offences with which he was charged.  In relation to his conviction on 4 February 2009, he said he pleaded guilty on the advice of his legal representative on the basis that he could expect a sentence of 18 months instead of, if he pleaded not guilty, potentially being sentenced to three and a half years’ imprisonment.  I note the decision of the Full Federal Court in Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234; (1999) 56 ALD 349; [1999] FCA 1197, at [40], where the Court said:

…  [I]t is not open to the Tribunal to engage in any enquiry which would impugn the sentence.  Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal.  The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence.

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15.     Thus, on the basis of the evidence of Mr Brown’s convictions, which include offences considered serious, I find that Mr Brown’s conduct is of a serious nature.

16.     In relation to whether that conduct may be repeated, clause 10.1.2(1) of Direction No 41 refers to the need to consider the person’s previous general conduct and total criminal history.  His criminal history shows that he has a conviction for “drink driving” in New Zealand dated 21 December 1999, for which he was sentenced to community service and disqualified from driving.  There is also an outstanding warrant for his arrest in New Zealand in relation to his failure to answer District Court bail and driving a motor vehicle in a dangerous manner and with more than the prescribed level of alcohol.

17.     Mr Brown arrived in Australia on 1 September 2003 and, as detailed above, his first convictions date from 15 September 2004 in relation to charges laid on 25 August 2004.  Mr Brown admitted that he had a problem with excessive drinking, and that he regularly drove while affected by alcohol.  He also acknowledged that he was heavily intoxicated at the time of the events in early 2008 which led to his convictions in February 2009.  He denied striking his then girlfriend on the head or damaging her screen door, and said that when he went to find her dog, the dog came to him at the door of the house where it was, and he returned the dog to his girlfriend.

18.     Mr Brown denied that he had breached the apprehended violence order (AVO) to which he was subject in respect of his former girlfriend.  He said that his girlfriend had been to court on two occasions to lift AVOs.  His girlfriend told him to come home, but when he did, the police came and arrested him, a further AVO having been issued by the police in the meanwhile and without his knowledge.  He said the police hassled him all the time and he does not know why.  Mr Brown denied being violent, although he pleaded guilty to assaulting his girlfriend on the advice of his lawyer in order to avoid the court proceedings continuing.

19.     Mr Brown said that he had completed a drug and alcohol rehabilitation program while in prison and his commitment not to use alcohol has been bolstered by his Muslim faith.  His religion dictates that he is not allowed to drink alcohol and he will try and honour that obligation and withstand the temptation.  He believes that his faith will make him a better person.  He has been a practising Muslim for the past 18 months, prays seven times a day, and, at the time of the hearing, was fasting for Ramadan.  When questioned by Mr Johnson, solicitor for the Respondent, he acknowledged having refused to supply a urine sample while in prison but said this was because of the conditions under which he was asked to give a sample, with another person standing very close to him and intending to watch while he gave the sample.

20.     Mr Brown said although he has been in a relationship for the past nine months with a former friend who is an Australian citizen, he has chosen not to involve her in these proceedings.  His new partner has never been in any sort of trouble and she is committed to being with him if he is willing.  He said she is leading him into a different environment, away from the trouble that he used to encounter, particularly in the building industry work in which he used to be involved.  If he is released from immigration detention into the community, he has a job lined up with Ikea in Liverpool as an outsider in distribution doing deliveries.  Mr Brown would ultimately like to raise a family away from the sort of background in which he was brought up where family members were well known for getting into trouble.  Apart from working, he hopes to pursue his interest in arts and crafts and, in particular, in design.  Mr Brown has won an award for a design he completed in an art competition to design a logo for the Department of Corrective Services Pacific Islander Offender program.

21.     Mr Johnson noted that Mr Brown was issued with a formal warning that his visa might be cancelled if he committed further misconduct when cancellation was considered in August 2007.  Yet, he has still re-offended.  Mr Johnson said that alcohol will be readily available to Mr Brown on his release from prison and, as in the past, there is once again a risk that he will abuse alcohol.  Given Mr Brown’s recent criminal history and the fact that he did not stop offending despite receiving a formal warning from the Department, there is a real risk of his re-offending.

22.     Having heard Mr Brown's evidence and submissions and the submissions of the Respondent, I find that there is a risk of Mr Brown’s re-offending.  While I accept that he may have good intentions, particularly in relation to his never again abusing alcohol, the fact that he ignored a formal warning in August 2007 and continued to abuse alcohol suggests that there is a very real risk of this occurring again and of his being violent if he is placed in a situation of conflict.

length of time ordinarily resident in australia

23.     As stated above, Mr Brown arrived in Australia on 1 September 2003.  His first convictions connected with driving/riding an unregistered vehicle while unlicensed were on 15 September 2004 in relation to charges laid on 25 August 2004.  His first custodial sentence was imposed on 8 May 2006 in respect of charges laid on 30 April 2006.  Thus, he had been resident in Australia for less than three years at the time of his first custodial sentence.  As Deputy President Walker found in ReHeyward and Minister for Immigration and Citizenship [2009] AATA 536, at [307], it is not the total period of residence that is relevant under Direction No 41 but the length of time between taking up residence and engaging in criminal activity or activity that bears negatively on the person’s character that is a relevant consideration. In my view, a period of less than three years’ residence prior to the commission of an offence in April 2006 is not a matter which weighs in favour of Mr Brown in respect of the exercise of the discretion to cancel his visa.

other considerations

24.     As noted above, Direction No 41 states that other considerations, where relevant, must be taken into account but, generally, should be given less weight than primary considerations.

25.     A relevant consideration in Mr Brown’s case is his family ties and the nature and extent of his relationship with those in the Australian community.  Mr Brown was born in New Zealand.  He said that he grew up with his grandparents.  His parents split up and he only ever lived with one or other of them from the age of about 13.  He did not have a good relationship with his parents, especially with his father.  He began working for his father doing contracting work with heavy machinery before he left school at the age of 14.  He continued to work for his father for a further year and then obtained similar work with other companies and was generally in employment.  Mr Brown said he undertook a TAFE automotive engineering course for approximately eight months but did not complete the course because he was working for his father.

26.     Mr Brown has three sisters and one younger brother (deceased).  His older sister arrived in Australia approximately two years before he did and was willing to support him on his arrival.  However, when Mr Brown first arrived in Australia, he stayed with his aunty and uncle, his aunty being his mother’s step-mother.  They lived in Blacktown and his uncle gave him work in his shotcreting business for about six months during which time he worked about four days a week, mostly building swimming pools.  This was a family business and his aunty and uncle’s eight sons also worked in the business.  The whole family was religious and did not drink and so Mr Brown did not drink while he was staying with them.  After about six months, Mr Brown said he got a better job working with structural steel as a trade assistant and it was at this time that he started drinking again, the company being a kiwi-oriented one where there was a drinking culture.

27.     Mr Brown said it was also at about this time that his younger brother died in New Zealand, although his older sister in Australia did not tell him of this and he therefore did not go to the funeral in the North Island.  Mr Brown said it still hurts him to think about his brother’s death and it has taken a long time for him to forgive his sister for not telling him about it.  He has now forgiven her and has recently found her on the internet and sent her a message.

28.     Mr Brown also has another sister now in Australia and, in the same way, he has tried to contact her via the internet.  Mr Brown has not had contact with his parents in New Zealand since he left and he does not know where they are living.  He came to Australia to establish a new life.  Mr Brown has no children in Australia although he has a daughter, Zahra, who is aged 12, in New Zealand.  She lives with her mother and Mr Brown has had no contact with either of them since he left New Zealand.  Mr Brown said his aunty and uncle in Blacktown are both now dead.  He has some cousins in Blacktown with whom he maintains contact, but three of them are currently in prison.  As noted above, he has had a relationship for the past nine months with a former friend who is an Australian citizen.

29.     In terms of his family ties and relationships with those in the Australian community, I am not satisfied from Mr Brown’s evidence that these are so significant to weigh heavily against a decision to cancel his visa.

30.     With regard to any hardship likely to be experienced by Mr Brown by his removal to New Zealand, while I acknowledge his wish to remain in Australia, there would appear to be no significant language, cultural or other barriers to Mr Brown re‑establishing himself in New Zealand and obtaining employment there.

31.     As to other considerations, Mr Brown is aged 28 and apart from his requiring surgery for a dislocated shoulder, he appears, otherwise, to be in good health.  While in prison, he has completed a number of courses including a “SMART” drug and alcohol rehabilitation program and, earlier this year, a computer program.  I have referred, above, to the design award that Mr Brown has recently won and to his desire to pursue his interests in crafts and design.  However, I agree with the Respondent that this is unlikely to assist him with employment in the immediate future.

32.     These other considerations do not, in my view, outweigh the primary consideration of the protection of the Australian community, noting, in particular, that Mr Brown was warned in August 2007 that any further offending would have serious consequences and lead to a reconsideration of the cancellation of his visa.  Mr Brown was warned that if he disregarded the warning, this would weigh heavily against him if his case was reconsidered.  He subsequently re-offended.

33.     Having considered both the relevant primary and other considerations, I am satisfied that on balance, Mr Brown’s visa should be cancelled.

decision

34.     The decision under review is affirmed.

I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President

Signed:   ………..[sgd]................................................................

A Veness, Associate

Date of Hearing:  27 August 2009
Date of Decision:  9 September 2009
Applicant representative:       Self-represented
Respondent representative:   Mr G Johnson, DLA Phillips Fox