Burns and Minister for Immigration and Multicultural Affairs
[2001] AATA 18
•17 January 2001
DECISION AND REASONS FOR DECISION [2001] AATA 18
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/ 753
GENERAL ADMINISTRATIVE DIVISION )
Re JASON BURNS
Applicant
And MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Dr D. Chappell, Deputy President
Date17 January 2001
PlaceSydney
Decision The decision under review is set aside and the matter is remitted to the respondent with a direction that while having regard to the applicant's past and present criminal conduct he is not of good character, the discretion not to cancel the applicant's permanent residence visa should be exercised in his favour.
(Sgd Dr D Chappell)
..............................................
Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – criminal deportation – citizen of United Kingdom – entry into Australia aged one year and nine months – ward of the state aged 14 – borderline mental retardation - functionally literate – history of drug use and dependence - convictions for drug related offences – conviction for armed robbery – re-offended in gaol – considered borderline deportation case – decision to deport – consideration of character – not of good character – consideration of discretion – consideration of recidivism – moderate to high risk – management plan will reduce risk according to experts – on the basis of such a plan community not at significant risk - consideration of family and links to Australian community – significant hardship to family – significant hardship to self – risk of self-harm – decision set aside – discretion exercised in favour of applicant
Migration Act 1958 s501
Re Drake v Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634 at 644-645.
Rice v Minister for Immigration and Multicultural Affairs (AAT 013034, 30 June 1998
Hohepa v Minister for Immigration and Multicultural Affairs [1999] AATA 210
REASONS FOR DECISION
January 2001 Dr D. Chappell, Deputy President
BACKGROUND
Application and Hearing
This is an application by Mr Jason Burns (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 residence visa. The cancellation was based on a finding that Mr Burns was not a person of good character. Section 500(1)(b) of the Act confers jurisdiction on the Tribunal to review this decision.
During the hearing of this matter Mr Burns was represented, on a pro bono basis, first by Mr Scott Corish of Counsel and then by Mr Paul Bolster of Counsel. Both Mr Corish and Mr Bolster were instructed by Mr Steven Bell, a solicitor, also acting on a pro bono basis. Mr Burns gave personal testimony to the Tribunal. The following witnesses also testified on his behalf:
Dr Christopher Lennings
Dr John Frank Perica
Mrs Janice Burns
Mr John BurnsMr Denis Hurley, and then Mr Jason Fong, both departmental advocates, represented the respondent. Ms Megan Elizabeth Newman was called as a witness to testify on behalf of the respondent.
The Tribunal had before it documents and supplementary documents filed for the purpose of s37 of the Administrative Appeals Tribunal Act 1975 (the T and S documents). The following exhibits were also received into evidence on behalf of the applicant and the respondent:
Exhibit No. Description Date
A1 Letters from Mr Andrew Roper and Mr Jonathon Burns Undated
A2 Report of Dr C.J. Lennings 10/2/00
A3 Police Fact Sheet, Wagga Wagga local Court 29/0/97
A4 Various Certificates
A5 Medical Report Dr J.F. Perica 30/10/00
A6 Reporting arrangements, parole and related documents
R1 Report of Megan Newman and Clare Felton, Department of Corrective Services 7/9/99
R2 Report of Megan Newman, Department of Corrective Services 5/7/00
R3 Disciplinary offences, Jason Burns 25/10/00
R4 Letter from Mr D. Holford-Smith, Mental Health Services of Salford, Manchester, United Kingdom to Australian High Commission, London 12/10/00
R5 Parole Report and attachments 9/8/99
Circumstances Leading to Visa Cancellation
The following general facts which led ultimately to the cancellation by the respondent of Mr Burns' permanent resident visa were not in dispute between the parties. Mr Burns was born in Manchester in the United Kingdom on 27 December 1971 (T: 85). He migrated to Australia, in company with his parents, and arrived in this country on 29 September 1973 (T: 88). With the exception of two brief trips back to England when he was still very young (T: 125, T: 88) Mr Burns has lived in this country until the present time.
Mr Burns appears to have had a relatively untroubled childhood until he reached the age of 12 as is apparent from the following description given of his early childhood experiences contained in a report by a clinical psychologist in February 2000:
… His mother describes him as a good child with no apparent behavioural problems until he was 12 years old. Mr Burns remembers himself as head strong. Mr. Burns describes his early childhood as one of love and care but marked by financial hardship. He has a brother 7 years younger than himself and a sister 12 years young [sic] than he is. According to Mr. Burns, he began to feel jealous when his siblings were born and thought that his family loved them, and cared for them, more than for him. According to his mother evidence of such sibling rivalry did not begin until his sister was born when he was 12 years old.
Certainly, from the age of 12 years Mr. Burns appears to have experienced a marked deterioration in his life. It is highly possible that his intense sibling rivalry contributed to this. Given Mr. Burns cognitive difficulties, it is also highly likely that he failed to make an appropriate transition into high school and the combined impacts of (apparently unfounded) fears of parental rejection and school failure led him to associate with delinquent peers, to abuse alcohol and marijuana, and to engage in attention seeking behaviour. According to his mother from the age of 12 years Mr. Burns's [sic] behaviour was marked by running away from home and oppositional behaviour.
(A2: 1-2)In August 1986, at the age of 14, Mr Burns was made a State ward (T: 102). He did not complete his formal education and appears to have been suspended from school after year 8. He has not improved on his education qualifications since then although he did acquire functional literacy skills. After leaving school Mr Burns had a history of relatively full-time employment up until 1992 and some sporadic work history after that time. He also began to become involved in criminal activity which brought him into contact with the criminal justice system in Victoria. His earliest conviction appears to have been in March 1988 at the Melbourne Children's Court and since then he has acquired a substantial criminal record, as is shown in Attachment 1.
In 1992 Mr Burns gave up his regular employment in Melbourne in order to travel around Australia. While under the influence of alcohol he was involved in an accident on his motor bike which resulted in him being knocked unconscious and suffering extensive damage to his leg. He was told at the time that he might lose his leg. As a result of the extensive pain he was suffering he was prescribed morphine. At some later point his medical advisers became aware that he was addicted to this drug and ceased its prescription. However, Mr Burns had developed a dependence on the drug and when he was no longer able to obtain it he began to abuse heroin as well as a number of other illicit drugs.
Following a series of short gaol sentences in 1994 Mr Burns was convicted of armed robbery in July 1995 and sentenced to a prison term of six months with an additional term of nine months (T: 78). Following the sentence he was released on probation in January 1996 and while still under probation supervision committed a further armed robbery offence (T: 66). On 1 November 1996 he pleaded guilty in the New South Wales District Court to a charge of armed robbery and was sentenced on 17 December 1996 by Ford J to a minimum term of imprisonment for three years, with an additional term of two years (T: 66-70). At the time of his sentencing Ford J said the following about the gravity of the offence, and Mr Burns' prospects of future rehabilitation:
Jason Burns, you pleaded guilty to this charge on 1 November 1996, the charge being that armed with a dangerous weapon, you robbed Mira or Media or Alamedia of certain property. There was a sum of money which was something a little less than $1,000 plus also some other property, mainly bags.
And you pleaded guilty at the same time as your co-accused, Christian Kaye.
This offence of course is one that is very serious and invariably attracts a full time custodial sentence. There are, I know, in your case, as in the case of Christian Kaye, a number of mitigating circumstances or not so much mitigating as circumstances that explain why would you get involved in such a foolish enterprise. You had been released to probation that was on 5 January. This offence occurred in August 1996.
It is perfectly apparent from the pre sentence report that you have had a very difficult sort of upbringing and eventually you have lapsed into crime and also drug taking. Then you had the misfortune to be involved in a motor accident, that was in 1992. And you have not worked since or if you have worked it has been for a very short period. And because of the pain and discomfort involved in that accident, you became addicted to Pethidine and since then dependent on heroin and also Rohypnol.
But it seems to me that as your counsel, Ms Cox, suggests, I should take into account the necessity that you have for assistance when you are released to the community from custody and, given some supervision by the Probation Service, you may be able to keep out of further trouble and overcome your dependence on drugs.
And I am pleased to learn at least that you are attending one of the drug rehabilitation courses during your term in prison.
For this offence, I sentence you to penal servitude for the term of three years by way of minimum term and I fix an additional term of two years. The sentence will commence from the date upon which you were arrested which was 15 August 1996 and the minimum term will expire on 14 August 1999.
The full term of the sentence will expire on 14 August 2001.
Now, it will be a matter for the Offenders Review Board to decide whether you will be released to probation and that will depend a good deal upon your behaviour in prison and whether you show a sincere desire to improve yourself and keep away from crime.
(T: 66-67)In November 1998 Mr Burns was notified by officials of the respondent that he might be liable to have his permanent residence visa cancelled under s501 of the Act (T: 73). Mr Burns was subsequently interviewed by officials of the Department of Immigration and Multicultural Affairs (the department) (T: 82-99). In May 1999 a report was submitted to the Minister's delegate in regard to this visa cancellation. The officials have prepared the report offered the following summation of the case:
SUMMATION
This is a borderline case.
As outlined earlier Mr Burns has an extensive criminal history which encompasses crimes of violence.
He is currently serving a lengthy period of imprisonment for his offence of armed robbery. Of major concern is his eighteen internal offences which includes an offence of assault resulting in him receiving an additional three months on his current sentence. Serving a period of imprisonment coupled with the threat of possible visa cancellation appears to have failed to curb his re-offending behaviour.
Mr Burns has substantial family ties in Australia and has spent his formative years in this country, arriving at the age of 20 months.
Whilst Mr Burns has an extensive criminal history, and his re-offending behaviour is of concern it is submitted that his length of residence and the hardship removal to the UK would cause slightly outweigh this.
FACTORS IN FAVOUR OF CANCELLATION(i)Serious nature of criminal history.
(ii)His re-offending behaviour whilst in gaol.
(iii)Risk of recidivism assessed as moderate to high.
FACTORS AGAINST CANCELLATION
(i)Mr Burns has lived 25 of his 27 years in this country.
(ii)Mr Burns will suffer hardship if his visa is cancelled and he is removed from Australia.
(iii)Mr Burn's [sic] parents, brother and sister may suffer emotional hardship if he is removed from Australia and returned to the UK.
(T: 135-136)
On 3 May 1999 the Minister's delegate rejected the recommendation made by his officials that Mr Burns' visa not be cancelled. In determining that cancellation was appropriate in the circumstances the delegate, Mr Mark Anthony Sullivan, noted that:
The telling factor, in my mind, is that Mr Burns continues to involve himself in bad behaviour while in the prison system. It makes me wonder about his statements concerning his future behaviour. I believe cancellation is necessary.
(T: 137)On 11 May 1998 Mr Burns was notified of the decision made by the Minister's delegate to cancel his visa. On 13 May 1999 Mr Burns made application to the Tribunal for a review of this decision (T: 3).
LEGISLATION AND POLICYSection 501 of the Act is the key legislative provision relevant to Mr Burns' case. This section was amended by parliament in a substantial way after the Minister's delegate made the decision to cancel Mr Burns' residency status in Australia. However, it was acknowledged by both of the parties that, as a result of s32 of the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 this amendment did not affect the present proceedings in any way and that the earlier version of s501 applied to the case.
The relevant parts of the earlier version of s501 of the Act, as at 31 May 1995, provide the following:
501.(1) The Minister may refuse to grant a visa to a person, or may cancel a visa that has been granted to a person, if:
subsection (2) applies to the person; or
(b) The Minister is satisfied that, if the person were allowed to enter or to remain in Australia, the person would:
(i) be likely to engage in criminal conduct in Australia; or
(ii)…
(iii)…
(iv)represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or violence threatening harm to, that community or segment, or in any other way.
(2)This subsection applies to a person if the Minister:
having regard to:
(i) the person's past criminal conduct; or
(ii) the person's general conduct;
is satisfied that the person is not of good character; or
(b) is satisfied that the person is not of good character because of the person's association with another person, or with a group or organisation, who or that the Minister has reasonable grounds to believe has been or is involved in criminal conduct.(3) The power under this section to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person, is in addition to any other power under this Act, as in force from time to time, to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person.
Guidance as to the interpretation of s501 of the Act is contained in the respondent's Migration Series Instructions No.164 (the Instructions) (T4). Paragraph 1.2 of the Instructions states that it deals only with the refusal power contained in s501 (T: 15). However, this Tribunal has indicated in several recent decisions that the Instructions, in the absence of cogent reasons to the contrary should be used to guide visa cancellations as well as visa refusals: see Rice v Minister for Immigration and Multicultural Affairs (AAT 013034, 30 June 1998); Hohepa v Minister for Immigration and Multicultural Affairs [1999] AATA 210; Re Drake v Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634 at 644-645. No cogent reasons exist in the present matter which preclude the Tribunal from utilising the Instructions in this manner.
ISSUESIt is well established that in addressing the issues raised under s501 of the Act two stages are involved. First, the Tribunal must consider whether it is satisfied that the applicant is not of good character. If it reaches an adverse finding about this issue then the Tribunal must then consider the residual discretion which is vested in it by s501 to not cancel the visa of a person whom it has found not to be of good character.
At the hearing of the present matter, and at the point at which all of the evidence had been received on behalf of both parties, a concession was made by the applicant's lawyer, Mr Bolster, that Mr Burns was not of good character on the basis of his past criminal conduct and that the sole issue where the "battle lines are drawn" was that of the exercise of the Tribunal's discretion (transcript 31 October 2000: 53-54). Given this concession the Tribunal does not propose to explore in any greater detail the nature of Mr Burns' past criminal record which has already been outlined earlier in this decision. It should also be noted that the Tribunal put a number of questions to the applicant about the circumstances surrounding his criminal offending. Mr Burns' responses to these questions are set out in relevant portions of the transcript (see S: 219-224). Mention will also be made below of the evidence relating to Mr Burns' behaviour since 1996 during the period that he has been kept in custody.
Paragraph 9.9 of the Instructions contains guidance to the Tribunal as to the manner in which it should seek to exercise its discretion to cancel or not cancel Mr Burns' visa under s501. More particularly, and so far as relevant to Mr Burns' case, the Instructions state:
9.9.1. When an officer is satisfied that a person is not of good character after having regard to the person's past criminal conduct, general conduct or by association with a person, group or organisation which is involved in criminal conduct, the discretion to refuse or not refuse a visa under section 501 is enlivened.
…
9.9.2 In considering whether or not to grant the visa following an adverse character finding, consider all relevant factors including:· the circumstances of the person at the time of the application. These include but are not limited to:
·genuine marriage to, or genuine de facto relationship with, an Australian citizen/permanent resident;
·the best interests of any child associated with the visa applicant/s;
·the strength of family, social, business and other ties to the Australian community;
·periods of previous lawful resident;
·the degree of hardship which would be caused to immediate family members lawfully resident in Australia (especially Australian citizens);
·family disposition, both in Australia and overseas; and for protection visa applicants, whether refusal will lead to a breach of International obligations under the Refugee Convention (see section 8).
· whether the application is for a temporary visa or a permanent visa and the purpose of entry to or stay in Australia; and
· whether undue harm would be likely to result to the Australian community if the visa was granted. This would include an assessment of the likelihood of the person re-offending or engaging in unacceptable conduct in Australia. This is a primary consideration, equal in weight to any other primary consideration.
The above list of matters is not exhaustive.
9.9.3 Unless the officer is satisfied that there is sufficient credible evidence available to overcome the discretion to refuse on character grounds, based on the above factors, and that undue harm would be unlikely to result to the Australian community, a decision should usually be made to refuse to grant the visa.
(T: 48-49)
Of the relevant factors referred to in paragraph 9.9.2 of the Instructions it was not contended by either of the parties that Mr Burns was involved in any marriage or relationship with an Australian citizen or permanent resident, nor that he had any children. In regard to the other factors mentioned in this paragraph of the Instructions the Tribunal intends first to review the evidence relating to what is described as "a primary consideration, equal in weight to any other primary consideration", namely whether undue harm would be likely to result to the Australian community should Mr Burns be permitted to continue to reside in this country. Following this review the evidence presented in regard to the other relevant factors will also be examined.
EVIDENCE
Risk of RecidivismIn seeking to determine whether undue harm would be likely to result to the Australian community by allowing Mr Burns to stay in this country an assessment is rsequired of his risk of recidivism. On behalf of the respondent it was contended that there were a number of factors apparent from Mr Burns' background which pointed to him having a moderate to high risk of recidivism. These factors included Mr Burns':
substantial criminal record
drug addicted lifestyle
relatively low cognitive skills
past breaches of community supervision including probation
misconduct in prison
Psychological Testimony: Dr C. Lennings
Two psychologists gave personal testimony to the Tribunal concerning their views about Mr Burns' risk of recidivism and also his related prospects of rehabilitation. Dr Christoper Lennings, who was called to testify on behalf of the applicant, indicated that he had been in practise as a clinical psychologist for more than 20 years and was currently a senior lecturer in psychology at the University of Sydney (see transcript 17 February 2000: 101; A2). His extensive professional experience included the management of Odyssey House, a drug rehabilitation centre in Sydney as well as occupying a senior research position in the largest drug and alcohol service in Queensland.
In a detailed written report which Dr Lennings prepared about Mr Burns (A2) he noted that while he had not had access to his criminal record he had asked Mr Burns about his pattern of offending. Mr Burns had acknowledged his long record of criminal behaviour, including the commission of crimes of violence. Dr Lennings said that Mr Burns had told him that the commission of such crimes was related directly to his level of need for drugs. Dr Lennings further reported that:
There is a circular argument here in that high levels of criminal offending also serve as predictors of likely response to drug rehabilitation. However, the presence of stable family support, employment opportunities, active case management and the immense threat of the implications of any future criminal offending all would seem to provide some hope for a reduced risk of recidivism.
(A2: 3-4)Dr Lennings said that Mr Burns had told him that he had been involved in further offences while in custody, including assaults which he said had arisen out of a need for self-defence after being attacked by some other prisoners who had mistaken him for a convicted child molester. Mr Burns had denied that he was generally an aggressive man although he was prepared to admit that when he abused drugs he had been involved in violent crime. Dr Lennings reported that he had conducted cognitive assessment tests in order to determine Mr Burns' level of intellectual functioning. On the basis of this testing he said he found that Mr Burns fell into:
… the top end of borderline mentally retarded range, or better than only the bottom 8% of the population for ability.
(A2: 4)
Dr Lennings said that he could find no evidence of Mr Burns suffering from an anti-social personality disorder, nor were there other obvious signs of psychopathy in his personality (A2: 5). On the basis of his examination of Mr Burns, Dr Lennings offered the following general conclusions about his prospects of rehabilitation:
Opinion. Mr Burns is a young man of low cognitive function who has developed a criminal and drug addicted life-style. While his current drug addiction appears to have stemmed from his exposure to morphine following a severe accident, his personality was such that prior to the accident he demonstrated substance abuse problems. Mr Burns has spent much of his adolescence and adult life believing his parents did not love him or care for him, and this belief appears to have been central into driving him into his deviant life-style. However, it is also the case that Mr Burns's [sic] low cognitive ability resulted in a poor transition to high school at a critical time in his families [sic] life, and the combined impacts appear to have derailed his development.
Certainly there appears to be a change for the better in Mr Burns' relationship with his family, although this is essentially untested. His family are able to identify social and vocational supports for him, should he not be deported. Deportation is likely to exacerbate Mr Burns' problem with drugs, and with his criminal life-style. His low intellectual ability means that without strong support and in the absence of demonstrated skills in socially appropriate living, his behaviour in the United Kingdom is likely to become more deviant rather than less. Given the history of vague but worrying self-harm statements he has made, and concerns about his ability to care for his osteomyelitis I hold considerable fear for his well-being should he be deported. Although I do not judge him as a high suicide risk at the moment, I could not rule out a risk of suicide should he be deported.
I have been told about, but have not had the opportunity to read a prior assessment. This assessment suggested that Mr Burns had a high risk of recidivism. Certainly, in the context of his prior drug addicted life-style, it could be expected that Mr Burns would have a high risk of recidivism. However, should he be returned home and a comprehensive management plan created for him, a period of stability might be expected. Providing a multi-discipline treatment program for his pain, including referral to a pain clinic that could provide psychological treatments as well as methadone, would be an important component of such a plan. Supervision, including urine screens as part of the administration of methadone and the threat of a return to gaol and possible deportation should he 'slip-up' is likely to increase compliance with such a regime. The opportunity to work and thereby fill his time appropriately would also reduce his risk of recidivism. Such a plan could be initiated and monitored by probation and parole and my understanding is that 'cross border' probation and supervision contracts are possible.
In conclusion it appears to me that deportation will adversely affect his family, and Mr Burns' well-being. The presence of low cognitive skills in a man of poor self-help and coping raises greatly the risk of self-harm or continued drug addiction and criminality. Whilst any prognosis if he were to stay in Australia would have to be guarded, it appears that the elements of a comprehensive management plan could be established, and if this were done, a reduced risk of recidivism could be anticipated.
(A2: 5-6)
During the course of his personal testimony to the Tribunal Dr Lennings was cross-examined at some length about his conclusions regarding Mr Burns' prospects of rehabilitation and the risk of him re-offending. Dr Lennings acknowledged that in the absence of appropriate support Mr Burns had a moderate to high risk of recidivism. However, there would be a low risk of recidivism if he had an appropriate treatment plan (see transcript 17 February 2000: 112-114). This treatment plan included the issues of support from his parents, the capacity to undertake employment, referral to a pain management clinic, and supervision and monitoring of his drug use through such a clinic (transcript 17 February 2000: 114).
Dr Lennings was also cross-examined about the medication that was being administered to Mr Burns during the course of his most recent term of imprisonment. Dr Lennings stated that Mr Burns was on high doses of medication which could affect the way his mind operated as well as his behaviour. Dr Lennings said that from his examination of Mr Burns' medical records he noted that he had been taken off certain drugs a few weeks prior to his examination of Mr Burns in early February 2000. Mr Burns continued to be on a high level of methadone (transcript 17 February 2000: 114).
Dr Lennings also said that it was his view that Mr Burns would require maintenance of a high level of methadone until such time as he had some form of corrective surgery that could be undertaken to remove his level of chronic pain (transcript 17 February 2000: 118-119). Questioned further about these issues by the Tribunal Dr Lennings had the following to say about the potential influence of Mr Burns' medication upon his behaviour in prison:
[Tribunal] I think it would be fair to describe that record as one of fairly significant difficulty he's had in prison including a series of assaults. He, in his evidence to the Tribunal yesterday, also said that he had been mistaken during the time he was in prison for another Burns who was, in fact, it would seem a paedophile and it would seem that he had been attacked as a result of that and, in fact, he'd also been asked to be put into strict protective custody. Did you discuss those matters with him at all?---I did discuss those matters with him, yes. He said the same – the same thing to me. I also noted in the medical records that there's concerns that at that stage he was at a lower does of methadone – that he was irritable and that that altered when they increased the does. So, I think you've got two possible explanations for some behaviour there.
So, it could be the level of dosage of the methadone which could have influenced his behaviour you say?---I think the level of drug use generally would have influenced his behaviour. One of the functions – one of the things that you see and it's seen a lot with drug addicts and reported a lot in the literature is what's known as the paradoxical effect. When you mix benzodiazepines with opiates, you get a paradoxical effect. You get rage and it's very unwise to – to mix that particular mixture – to put those two drugs together. You get kind of associate states where people become extremely angry and it would have been – whilst I'm not saying it's the cause of anything, nonetheless you might have expected more fractious behaviour from someone who's on that particular regime. So, irrespective of whether or not he was being mistaken, irrespective of whether or he was in conflict with other prisoners and was needing to defend himself, the impact of the cocktail of drugs he was on is going to effect his thinking and his behaviour and that's why it's of great benefit for him to have been able to come off the benzos in particular and to be on an increased dose of methadone.
He also told the Tribunal yesterday that most of the troubles he seems to have got into were in Junee when he was housed there. Are you able to, from your own knowledge of the inspection of the medical records, to give any view as to when he was taken off these various medications?---He was only taken of benzodiazepines only two or three weeks prior to me seeing him. I don't know whether he was on the benzodiazepines when he was in Junee but my understanding was that, at some stage, he was on not only that but he was also on Epilim which is a tranquilliser which has very significant impacts upon thinking and planning executive behaviour. So, my understanding is he only came off those drugs a couple of weeks prior to me seeing him but whether he was on them and what dosage he was on at Junee, I really can't remember.
(transcript 17 February 2000: 121-123)
Psychological Testimony: Ms Megan Newman
Ms Megan Newman, an intern psychologist employed by the New South Wales Department of Corrective Services, provided personal testimony to the Tribunal on behalf of the respondent. In addition to this testimony Ms Newman also provided the Tribunal with a detailed written psychological report, dated 7 September 1999, concerning Mr Burns (R1). This report was co-signed by Ms Clare Felton, a supervising and senior psychologist also employed by the New South Wales Department of Corrective Services.
In her written report Ms Newman detailed Mr Burns' criminal history and also provided information about his personal background. She noted that Mr Burns had no known psychiatric history. Although he had been diagnosed with depression and had suffered regular depressive episodes she stated:
Much of his contact with Corrective Services psychologists has been to address such fore mentioned depressive episodes and associated self harm attempts and suicidal ideation. Mr Burns has a long history of self harm, beginning at age twelve years. His most recent suicide attempt was early 1998, whilst housed at Junee. Mr Burns states that much of his past suicidal ideation and self harming behaviour has been related to depressive episodes, and a feeling of an ability to cope [sic]. Mr Burns describes inadequate coping strategies for frustration and stress, turning often to drug use as a means to cope.
(R1: 5)On the issue of the risk of recidivism Ms Newman stated in her report, and confirmed in her personal testimony, that she had conducted a series of psychometric tests which showed that Mr Burns had a moderate to high risk of recidivism which was heavily related to his drug abuse. She indicated that Mr Burns had claimed that his current gaol sentence, and to a certain degree the threat of deportation, had made him "wake up a bit" (R1: 6). Ms Newman summarised her findings in her report in the following manner:
Mr Burns is a twenty-seven year old man with a significant history of offending. He is facing cancellation of his Visa and possible deportation to the United Kingdom. Mr Burns has been residing in Australia since he was aged twenty months, and has family support for release if he remains in Australia. He is unsure of family assistance in the United Kingdom, and believes that deportation would cause a great deal of emotional hardship for he and his family. He has realistic plans for the future, which involve residency in Melbourne. Assessment reveals a moderate to high risk of recidivism, which is heavily related to drug abuse. It would appear that continued family support and motivation for change may assist Mr Burns' reintegration into community life. Counselling to address issues related to drug use, depression and self esteem may also benefit Mr Burns.
(R1: 7)It should be noted that in addition to the written report already referred to which was prepared by Ms Newman she also prepared a supplementary document (R2) addressing certain critical remarks made by Dr Lennings about the static psychometric tests utilised by Ms Newman during the course of her examination of Mr Burns. Both Dr Lennings and Ms Newman were questioned during the course of their personal testimony about these tests and their utility in assessing risks of recidivism.
Report and Testimony by Dr J.F. PericaIn addition to the expert psychological testimony provided to the Tribunal by Dr Lennings and Ms Newman the Tribunal also received a written report and personal testimony from Dr John Frank Perica, staff specialist psychiatrist at the Corrections Health Service (see in general transcript 31 October 2000: 3-21: A5). Dr Perica's report and testimony followed a request made by Mr Burns' legal representative at the time, Mr Corish, at the conclusion of the initial hearing of this matter in February 2000 (see transcript 17 February 2000: 144). Mr Corish said that in the light of the evidence that had been given by Dr Lennings about the potential effect of the combination of drugs that had been prescribed for Mr Burns, as well as the need to subpoena Mr Burns' medical records from the Department of Corrective Services, an adjournment of the proceedings should take place. The respondent did not object to this course of action but indicated that it also reserved the right to call further personal testimony at the resumed hearing.
In his personal testimony Dr Perica told the Tribunal that as a staff specialist psychiatrist he worked in the areas of psychiatry and drug and alcohol treatment within the New South Wales correctional system. He had held his post for a period of two years, and had been working in the field of psychiatry for the past ten years. He had also been involved in the setting up of the New South Wales Drug Court system.
Dr Perica said that he had first met Mr Burns some eight or nine months earlier when he was conducting psychiatric clinics at the Long Bay Correctional Centre in Sydney. Dr Perica said he was conducting these clinics as part of a wider review of the prescription of drugs to prisoners in the New South Wales correctional system. He said that this review had been initiated for a number of reasons:
… one was that there had been a long history of prescribing tricyclic anti-depressants which refers to a group of older anti-depressant medications, which are quite toxic in terms of everyday use and quite lethal in terms of overdose. Given that there had been some fatal overdoses with tricyclic anti-depressants, and given that there had more recently been newer anti-depressants which were much safer on a daily basis and also in overdose, we were concerned that because tablets of any sort are used as currency within a jail [sic] system, that we should try and reduce and remove those sorts of medications from being prescribed in that environment.
What prescriptions was Mr Burns on at that time?---Unfortunately when I first saw him, he was on a combination of Methadone, Valium which is classed as Benzyl Diazepam, and he was also on Prothiaden, which is one of the tricyclic anti-depressant class medications. That is far from best practice in terms of medications being prescribed, and that was one of the reasons that I saw Mr Burns initially.
So, was it brought to your attention that he was on that particular mix of drugs, and that is why you saw him?---I actually went through the medication files myself at the MMTC, and systematically reviewed every patient who was on Prothiaden, and sort out reasons why they were on that medication, and whether there were any other available options for treatment, and I was concerned when I saw his medication chart, that he was on not only, Prothiaden, but Epilim] and also Valium, which is clearly addictive.
Was his a typical regime, or was it atypical?---Well, it's atypical in the sense that it's not best practice, because Methadone is a central nervous system depressant and when combined with Valium and Prothiaden, those two medications are quite toxic.
What other effects do they have, do they have any behavioural effects?---They can also contribute to behaviours such as irritability, impulsivity and that's because Prothiaden in itself has a number of uncomfortable side effects, such as making a person drowsy, making them constipated, gives them a dry mouth, can caused [sic] some blurred vision, and Valium although for a lot of people can cause a sedating effect it is quite well known to have a disinhibiting effect, much like when someone is intoxicated, some people will fall asleep and other people will become highly aroused and abusive and threatening.
It's been suggested to Mr Burns, that during his stay in prison, that he has been involved in breaches of certain disciplinary rules within the jail [sic]. He's been involved in minor assaults, he's been involved in swearing and abusing officers, what's your view about incidents such as those in the case of someone on that particular mix of drugs?---I personally wouldn't want to be on that combination of medication. I think to live in a prison environment is very difficult, it's a harsh environment, and to my knowledge after leaving the MMTC, reports came back to me that there had been an improvement in Mr Burns' behaviour.
(transcript 31 October 2000: 3-4)
Dr Perica confirmed that after changing Mr Burns' medication regime he had seen him on approximately four to six occasions over a period of about three months. He had noticed changes in his behaviour, finding him to be less irritable and more alert and he had reported feeling more in control of his environment in the prison system (transcript 31 October 2000: 5).
In the course of his cross-examination of Dr Perica, Mr Fong, representing the respondent, challenged whether the change of Mr Burns' drug prescription had really affected his behaviour. Mr Fong referred Dr Perica to the fact that after the change in prescription Mr Burns had been found with drugs in his urine on 31 May 2000 and he had also been charged with an abusive language offence on 1 May 2000 which was not consistent with someone who had improved after being taken off his prescription. Responding to this assertion Dr Perica stated:
… Well, I mean there are a number of factors to consider there. Firstly, to, I mean when I first met Mr Burns one of his major anxieties was the threat of deportation and I think for most of us, you know, we become anxious over exams or certain factors and we all like a quick settlement of those things, so I think that he's been under a protracted amount of ongoing stress in terms of uncertainty. The second factor is that people who suffer from drug addition or poly substance abuse are recognised to have a chronic relaxing and remitting disorder, not unlike someone who suffers from, say, diabetes or asthma. So that, for example, someone who is asthmatic may have a period of time when they're actually well for two years and then they may have a series of bouts where they are unwell for a period of six months. So in a similar context, the fact that he has had one positive urine drug screening and I don't know what that was for, has to be taken in context over a longer period of time. For example, on the drug court program, we had patients who actually did very well ultimately in the community, but they had occasions where they actually had a positive urine drug screening on more than one occasion. So I think those results have to be tempered with a longer term view of that sort of condition.
(transcript 31 October 2000: 11-12)
Other Relevant Factors
Evidence was also presented to the Tribunal concerning a number of other factors mentioned in the Instructions as being relevant to the exercise of the discretion contained in s501. This evidence concerned a number of interconnected issues associated with Mr Burns' family and other links to the Australian community, and to the hardship which would be caused to him and his family should his visa be cancelled and he be required to return to the United Kingdom.
Both of Mr Burns' parents gave personal testimony to the Tribunal. Mrs Janice Burns, Mr Burns' mother, described how she had emigrated to Australia with her husband and her then only child, Jason, who was 21 months old. The family had set up home in Melbourne and had continued to live in that city within a five mile radius throughout the time that they had been in this country. Two further children had been born over this period – Joanna who was now aged 15 and Jonathan who was now 21 (see in general transcript 16 February 2000: 84-85).
Mrs Burns said that Jason had a normal and seemingly happy family life until he began to run away from home in year 8. He had eventually made himself a ward of the State and moved out of the family home when he was about 14 years of age. Despite leaving home Jason had continued to keep in touch with the family. She was aware of his general pattern of criminal offending and also of his abuse of drugs. She attributed the latter problem to the accident that her son had suffered with his leg when in Queensland (transcript 16 February 2000: 88-89).
Mrs Burns said that it had been a great shock to the family when they learned that Jason faced the risk of his visa being cancelled and being sent back to the United Kingdom. She had become a naturalised citizen in about 1988 and her other two children had been born in Australia. She had always classified Australia as home since these children were born and she had also taken it for granted that Jason had been given citizenship automatically at the time that she became naturalised, even though he was not at the time living at home (transcript 16 February 2000: 91).
Mrs Burns said that her son Jason had no knowledge of the United Kingdom. He did have an uncle who continued to reside in England but Jason had not seen this uncle since they left the country when he was 21 months old. His aunt had visited Australia and had met Jason when he was about 10. Mrs Burns said that she thought Jason would find it extremely stressful to return to the United Kingdom and the family was also worried about the possibility of him coping, given his own history of attempts to inflict harm upon himself. Mrs Burns said that she was very happy to have Jason back in the family home in Melbourne where she believed he would be able to find work and become part of the local community.
Mr John Burns, Jason's father, told the Tribunal that he was now 52 and had been a rigger by trade throughout his working life. Mr Burns confirmed the testimony given by his wife about the circumstances which had brought them to this country. He also indicated that Jason had been a well behaved child and had done well at school until he was 12 years of age when he began to get into trouble. Even after he had left home and made himself a ward of the State Jason had kept in contact with the family (see in general transcript 17 February 2000: 133-137). Mr Burns said that if Jason was allowed to remain in Australia and come to live with the family in Melbourne, he would be able to obtain work with the same company that his younger son, Jonathan, was employed by.
CONSIDERATION
A Balancing of FactorsIn the guidance provided to decision-makers as to the way in which they should exercise their discretion following an adverse character finding the Instructions make mention of a need to balance "mitigating factors against that adverse finding". This balancing task is never easy, as was recognised by the respondent's own officials when they made their original recommendations to the Minister's delegate concerning the cancellation of Mr Burns' permanent residence visa. Those officials characterised Mr Burns' case as being "borderline", and one in which they judged the balance should fall in favour of Mr Burns remaining in this country. That recommendation was not, of course, accepted by the Minister's delegate (see paragraph 11 above). That delegate made specific mention of Mr Burns' continuing bad behaviour in the prison system as a factor which influenced his decision to cancel his visa.
It is not the function of the Tribunal to review the delegate's decision but rather, on the basis of all of the evidence before it, to reach the correct and preferable decision about Mr Burns' future residency status. Unlike the Minister's delegate the Tribunal has had the benefit of hearing the personal testimony not only of Mr Burns but also many other persons who have either been associated with his custody and treatment, or who have particular knowledge of his case. The Tribunal has also had the benefit of considering both written reports and personal testimony from three expert witnesses about Mr Burns' risks of recidivism and prospects of rehabilitation.
Patterns of Criminal OffendingMr Burns' criminal record, which he does not dispute, reveals a significant and sustained pattern of offending on his part since he left school at an early age, became a voluntary ward of the State and commenced his involvement with the use of illicit drugs. He has convictions for a number of serious offences involving violence including the most recent conviction of armed robbery for which he still remains under sentence until August 2001. While in prison he has also been convicted of a number of offences (R3), including several offences committed after he was made aware of his potential expulsion from this country. Against this persistent pattern of offending it is not surprising that the expert evidence received by the Tribunal from both Dr Lennings and Ms Newman was in general concurrence that Mr Burns' risk of committing further crimes remained moderate to high if no significant changes occured in his general style of living. Both of these experts also acknowledged that Mr Burns' risk of recidivism was related closely to his drug abuse.
Dr Lennings, and also Dr Perica, were seemingly much more optimistic than was Ms Newman about the possibility of a management plan being developed for Mr Burns that would allow him to cope with this drug abuse problem and become re-integrated into the community. However, Ms Newman did not discount entirely the prospect of a change in Mr Burns' risks of re-offending should he be able to obtain adequate family support and personal motivation to become rehabilitated. Ms Newman thought there were signs that Mr Burns had such personal motivation and realistic plans for his future.
The Tribunal was impressed by the personal testimony given by Dr Lennings concerning the type of management plan that could be put in place for Mr Burns to assist him with his rehabilitation. As a highly qualified and well respected clinical psychologist with very extensive experience working with the rehabilitation of drug addicts the Tribunal places substantial weight upon Dr Lennings' testimony which included recognition that the multi-various drugs being prescribed to Mr Burns during the time of his imprisonment might well explain much of his irritable and aggressive behaviour and consequent commission of breaches of prison discipline. This testimony was bolstered by the views expressed by Dr Perica whose initial encounters with Mr Burns took place in the course of his more general review of the entire system of prescribing drugs to prisoners in New South Wales prisons. The Tribunal found Dr Perica also to be a most convincing witness who reported positive changes in Mr Burns' behaviour following his removal from certain drugs. Dr Perica, like Dr Lennings, foresaw the need for Mr Burns to be maintained on a high dose of methadone, for the foreseeable future, as a management tool for his chronic pain. Any withdrawal from methadone by Mr Burns would require a very careful planning process which could be arranged through a pain management clinic.
Community RiskOn the basis of the expert evidence which has been reviewed the Tribunal is satisfied that with the type of management plan envisaged by Dr Lennings for Mr Burns his risk of recidivism could be reduced to a level which would not place the community at significant risk of him re-offending. On behalf of the respondent Mr Fong urged the Tribunal, in the course of his submissions, to reject Dr Lennings' proposals on the basis that they required too many contingencies which could not be met by either Mr Burns himself or the members of this family within the resources available to them.
There is no doubt that in the past Mr Burns has been given opportunities to become rehabilitated, including the provision of supervision on probation in the community. However he has not in the past shown himself either to be capable of nor willing to avail himself of these opportunities and has continued with his pattern of offending. In his personal testimony Mr Burns suggested that the shock of facing the possibility of deportation had changed all of this and that he was now determined to tackle his problem of drug abuse, and to re-establish himself in the community as a law-abiding citizen with the assistance and support of his family. The Tribunal has no doubt that he will receive support and assistance from his parents and siblings if he is allowed to remain in Australia. Mr and Mrs Burns both gave personal testimony on behalf of their son and the Tribunal was impressed both by their sincerity and their obvious desire to try and restore their son Jason to a crime and drug free lifestyle in Melbourne. It would also seem that the possibility of Jason being sent back to the United Kingdom has produced a new solidarity among the family and allowed its members to unite in their commitment to assist Jason. In addition to this family spport Mr Burns would, if released back into the community, remain under the supervision of the Probation and Parole Service until the expiration of his current sentence in August 2001.
HardshipThe Tribunal is satisfied that significant hardship would ensue to members of Mr Burns' family, and to Mr Burns himself, should his visa be cancelled and as a result he is obliged to return to the United Kingdom. The Burns family, like countless thousands of other British citizens, emigrated to this country in the decade following the end of the Second World War. With very limited exceptions, Mr Burns has resided in Australia on a continuous basis since he was a very young child. All of his formative years have been spent in Australia and all of his significant family and related ties are with this country. Although he does retain some connections with the United Kingdom through blood relatives these relatives have had only extremely limited contact with him and are obviously not a significant part of his current life.
Apart from the hardship that would be caused to Mr Burns and his family should he be obliged to return to the United Kingdom there is also, in the Tribunal's view, a significant risk of him both re-offending in that country as well as a possibility of self-harm resulting because of his inability to cope with a new environment of this type. Reference has been made already to this risk of self-harm as well as to the views expressed by Dr Lennings about the potential negative impact upon Mr Burns of his return to the United Kingdom. The Tribunal found this evidence to be convincing.
CONCLUSIONHaving carefully weighed up all of the factors which are relevant to this case, and giving particular attention to the primary consideration which must be that of ensuring that undue harm is not caused to the Australian community, the Tribunal by a very fine balance is satisfied that it should exercise its discretion in favour of Mr Burns and not cancel his permanent residence visa. Mr Burns has now been a resident of this country for almost three decades. His mother and father are both naturalised citizens of this country and his younger brother and sister are citizens by birth. Mr Burns is still at a stage in his life where he may, with adequate assistance and support, make a contribution to the country which he himself now calls his home. The onus is now upon him to show that he is capable of changing his past patterns of behaviour. If he does not both he and his family must be very well aware that he cannot anticipate any further tolerance or leniency in regard to his residency status in Australia.
The decision under review is set aside and the matter is remitted to the respondent with a direction that while having regard to the applicant's past and present criminal conduct he is not of good character, the discretion not to cancel the applicant's permanent residence visa should be exercised in his favour.
ATTACHMENT 1
Date Event
26 August 1986 Care application – Melbourne Children's Court (T: 102)
21 March 1988 Convicted of theft by Melbourne Children's Court
·probation for 12 months (T: 102)
18 May 1990 Convicted of use of indecent language in a public place,
·fined $150 plus $50, Frankstown Magistrate's Court
7 March 1991 Convicted of two counts of robbery/assault with intention to rob.
·sentenced to 12 months suspended sentence
·9 months concurrent
Convicted of recklessly causing injury
·fined $300 on each count
(Melbourne County Court) (Tp102)
The applicant involved in a motor vehicle accident (T: 66)
·not worked since, or only for short periods (T: 67)
·due to pain from accident, became addicted to Pethidine, heroin and Rohypnol (T: 67)
2? July 1992 Convicted of stealing on false pretences by Bundaberg Magistrates Court (T: 104)
24 July 1992 Convicted of possessing dangerous drug, thing used in connection with smoking dangerous drug:
·fined $200
(Mackay Magistrates Court) (T: 104)
2 September 1992 Convicted of stealing and breaching Bail Act (re false pretences offence)
·sentenced to probation for 18 months (T: 104)
27 January 1994 Convicted of failing to pay Victorian Compensation levy (Bankstown Local Court)
·24 hours gaol, sentence commenced 30 November 1994 to 1 December 1994 (T: 71, 121)
27 September 1994 Convicted of using offensive and indecent language by Parramatta Local Court
·sentenced to 24 hours gaol, starting from 2 December 1994 to 3 December 1994 (T: 121)
15 November 1994 Convicted of possession of stolen property outside NSW (3 months), GIC (3 months)
·sentences for two 3 month offences concurrent from 27 July 1994 to 26 October 1994
Convicted of malicious damage (1 month)
·sentence from 26 October 1994 to 26 November 1994 (T: 77, 122)
16 November 1994 Convicted of unlicensed driving by Parramatta Local Court
·3 days gaol from 16 November 18 November 1994 (T: 122)
2 December 1994 Convicted of using offensive, obscene and indecent language by Parramatta Local Court
·24 hours gaol
8 July 1995Convicted for unlicensed driving by Downing Centre Local Court
·4 days gaol, released on 12 July 1995
28 July 1995 Convicted for armed robbery in Parramatta District Court
·sentenced to 6 months prison, 1 day minimum with an additional term of 9 months (T: 78)
2 August 1998 Convicted of larceny – Parramatta Local Court (T: 78)
·14 day fixed term (T: 120)
5 January 1996 The applicant released on probation (T: 66)
August 1996 The applicant commits second armed robbery offence (T: 66)
15 August 1996 The applicant is arrested (T: 66)
·attends drug rehabilitation course whilst in prison (T: 66)
17 December 1996 The applicant pleads guilty and is convicted for second armed robbery which he committed in August
·sentenced to prison for 3 years minimum – commencing 15 August 1996 and ending 14 August 1999
·2 years additional prison. Additional term of prison ending 14 August 2001 (T: 78)
23 December 1996 Convicted for larceny – Downing Centre Local Court (T: 78)
·fined $500
7 April 1997 Convicted of AOABH
·6 months prison commencing 7 April 1997 (T: 79)
(Wagga Wagga Local Court)
8 May 1997 Convicted for common assault
(Campbelltown Local Court) (T: 79)
10 December 1997 Convicted of assault – Wagga Wagga Local Court
·3 months fixed term commencing 14 August 1999 – release date on 14 November 1999 (T: 79)
20 November 1998 The department notifies the applicant that he may be liable for visa cancellation under s501 (T: 73)
15 March 1999 Interview between department and the applicant regarding his possible visa cancellation (T: 82-99)
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Dr D. Chappell
Signed: .....................................................................................
AssociateDate/s of Hearing 4, 5 November 1999; 16, 17 February 2000; 24, 25 and 26 July 2000; 30 and 31 October 2000.
Date of Decision 17 January 2001
Counsel for the Applicant Mr Scott Corish/Mr Paul Bolster
Solicitor for the Applicant Mr Steven Bell,
Advocates for the Respondent Mr Denis Hurley/Mr Jason Fong
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