Chand and Minister for Immigration, Multicultural and Indigenous Affairs

[2004] AATA 1102

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1102

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2004/919

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ROBERT J CHAND

Applicant

And MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal The Hon. R J Groom (Deputy President)

Date22 October 2004

PlaceMelbourne

Decision The decision under review is set aside and the matter is remitted to the respondent for further consideration with a direction that the discretion under s501(2) of the Migration Act 1958  be exercised in favour of the applicant.

[Sgd R J Groom]

Deputy President

CATCHWORDS

VISAEX - IMMIGRATION  - cancellation of visa for failing the character test - past  criminal conduct – discretion that the Tribunal may exercise where the applicant fails the character test – Ministerial Direction No 21 – efforts by applicant to rehabilitate himself – permanent employment -  strong family support in Australia – exercise of discretion – decision under review set aside.

Migration Act 1958 – ss499, 501(2),(6, (7))

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) 1979 2 ALD 643

Re To Nguyun Doung and Department of Immigration and Multicultural Affairs [2001] AATA 442

Re Leha and Minister for Immigration and Multicultural Affairs {2000] AATA 1054

REASONS FOR DECISION

22 October 2004 The Hon. R J Groom (Deputy President)           

1.      This is an application to review a decision by a delegate of the respondent to cancel the applicant’s Class TZ444 Special Category visa.

2. The cancellation was made under s501(2) of the Migration Act 1958 (“the Act”) on the ground that the applicant did not pass the character test within the meaning of the Act.

3.      The decision to cancel the visa was made on 15 June 2004 and the applicant was notified of the decision on 4 August 2004.    He is presently in detention.

4.      The hearing was held in Melbourne on 18 October 2004.   The applicant was represented at the hearing by Mr Dennis Baker and the respondent by Mr Michael Brereton.   Oral evidence was given by the applicant,  parole officer Ms Andrea Robinson, the applicant’s girlfriend Ms Ann Iddles, Clinical Psychologist Mr Bernard Healey, the applicant’s uncle Mr Allan Nuku and the applicant’s aunt Mrs Denise Nuku.    Several documents were also tendered in evidence.    Both counsel made helpful closing addresses.

The Facts

5.      On the basis of the material before me I find the following facts:

(a)The applicant  was born in New Zealand  on 27 March 1976.   He is now 28 years of age.

(b)He arrived in Australia on 28 July 1990 aged 14 years.    Apart from some 4 weeks in New Zealand in 1991 he has lived in Australia since 1990.

(c)The applicant endured a difficult early childhood.   His parents separated before he was born and his mother remarried when he was 4 or 5 years of age.   His stepfather physically and sexually abused both the applicant and his older brother.    His biological father committed suicide many years ago.  At the age of 14 years the applicant was sent to Australia with his maternal aunt and her husband Mr and Mrs Nuku.   The applicant’s grandparents and a brother also moved to Australia at about the same time.

(d)The applicant’s health was affected by the disruptions in his early childhood.  He has certain psychological problems and conditions for which he has been treated in hospital and through medication.   He was involved with alcohol and drugs from his mid teenage years and at about that time became involved in criminal activity.

(e)The applicant’s first recorded court appearance was for theft in 1991.   Since then he has been convicted of a range of offences and has appeared in court for sentence on some 10 separate occasions.   The offences included, amongst others, convictions for theft, other offences of dishonesty and driving offences including driving whilst disqualified.    The applicant has served 2 prison sentences for more serious offences as follows:

Magistrates Court 08/10/1996 Frankston	·     Handle/receive retention of stolen goods ·     Theft of a motor vehicle ·     Theft from motor vehicle ·     Use cannabis	4 months 3 months concurrent Convicted and fined aggregate $500 with other traffic matters
County Court 01/3/2002 Melbourne	Armed Robbery Arson (of a vehicle) Theft of motor vehicle	3 years and 6 months imprisonment. 2 years (concurrent) 1 year (concurrent)

(f)The armed robbery is clearly a most serious offence.   It  was of business premises in Clayton, Victoria.   The applicant and a co-offender were armed with a sawn off air gun and a knife.   Female staff members were threatened and the applicant and his co-offender escaped with a substantial quantity of cash. 

(g)The applicant was in prison from 1 March 2002 until 8 September 2003 when he commenced parole.  It expires on 7 March 2005.

(h)The applicant was notified by mail, sent to him at Port Phillip Prison on 15 May 2002 of an intention to cancel the visa held by him pursuant to s501 of the Act.

(i)On 31 March 2004, the applicant was convicted in the Portland Magistrates Court for theft from a shop (a bottle of alcohol) exceeding PCA and driving whilst disqualified.   He received a suspended prison sentence and was fined and disqualified from driving.   These offences occurred when friends arrived from Melbourne to celebrate the Australia Day weekend with him.

(j)The applicant has the continuing support of a caring aunt and uncle and also his maternal grandparents.   He has a strong relationship with Ms Ann Iddles and I accept their evidence that they hope to marry in the future and have children.

(k)In recent times applicant has been working in the fishing industry at Portland. His uncle is also involved in the industry and considers the applicant “a natural” and someone well suited to that type of work.   I accept that evidence, and also the applicant’s oral evidence that the job at Portland remains open to him even though he is presently in detention.   

(l)The applicant has no family in New Zealand other than his mother.   She still resides with the applicant’s stepfather who abused him in his childhood.   There is no prospect of the applicant returning to that household or receiving any form of support from his mother or stepfather.   The applicant has elderly paternal grandparents in New Zealand, but he does not know their whereabouts or even if they are still alive.    There is no evidence of housing availability or job prospects in New Zealand.   

Section 501 and Direction No 21

6. Section 501(6)(a) of the Act provides, in effect, that a person does not pass the character test if the person has “a substantial criminal record”, and under s501(7), this term is defined to include where a person has been sentenced to a term of imprisonment of 12 months or more.

7.      There is no dispute, and I find accordingly, that the applicant does not pass the character test as he has been sentenced to a term of imprisonment of 12 months  or more.  

8.      Even though the applicant has not passed the character test the original decision-maker and therefore this Tribunal has a discretion to allow the applicant to retain his visa and so remain in Australia.

9. In exercising the discretion the Tribunal must have regard to and be guided by Ministerial General Direction (No. 21) – Direction under s499 visa refusal and cancellation under s501 of the Act (“Direction No 21”).

In speaking about a similar Direction Brennan J said in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) 1979 2 ALD 643:

“When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that power in reviewing that decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case.”

10.     I  also agree with the view expressed by Deputy President Wright in Re To Nguyun Doung and Department of Immigration and Multicultural Affairs 2001 [AATA 442) when he said:   

“… the Tribunal is not confined or fettered by the Minister’s Direction and is free and, indeed has the duty, to make its own assessment of how the discretion should be exercised according to the justice of the case by balancing and evaluating the competing issues which have arisen for resolution.   In this process so-called secondary considerations may well outweigh primary considerations depending upon the facts of the case (see Aksu v Minister for Immigration and Multicultural Affairs per Dowsett J [2001] FCA 514).”

11.     As stated in 2.2 of the Direction:

“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.”

12. So the duty of the Tribunal in a case such as this is to carefully weigh up all of the competing considerations, and paying due regard to Direction No 21, decide how best to exercise the discretion in order to achieve justice.

13.      The three primary considerations in Direction No. 21 are as follows:

(a)the protection of the Australian community, and members of the community;

(b)the expectations of the Australian community; and

(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.

(a)      The Protection of the Australian Community   

14.     The Tribunal must consider the seriousness and nature of the conduct.  Clearly the most serious offence the applicant has been involved in is the armed robbery for which he was convicted on 1 March 2002.    Although the applicant has been involved in a range of other offences, most are not at the very serious end of the range.   The armed robbery stands out as an offence which itself could well justify cancellation of the visa.    Indeed it is expressly referred to in the list of offences the Government considers to be “very serious” (see para. 2.6(n) of Direction 21).     It was clearly the principal reason the respondent initiated action to cancel the applicant’s visa.    The armed robbery involved the threat of violence to female staff members at the business premises.   It was no doubt a most frightening experience for the victims.   The applicant was subsequently convicted of the offence and suffered the criminal penalty.   Despite the seriousness of this offence and the list of other offences committed by the applicant, there are other factors that must be considered.

15.     It is necessary to take into account any mitigating factors (see paragraph 2.8(a) of Direction No 21). As far as the Armed Robbery is concerned there are mitigating factors. The evidence suggests that the applicant was not the prime mover in the commission of the offence. The applicant said in evidence that it had been planned by others and he became involved in a short time before the offence took place. I accept that evidence. He was under the influence of drugs at the time and this was recognised by the sentencing judge, His Honour Judge Williams, when he said in sentencing the applicant:

“You have had a very unfortunate background and you have certain psychological problems and conditions for which you have been treated in the past both in hospital and through medication.   Hand in hand with that you have had a drug problem, and alcohol problem, and I am prepared to accept the situation to be one, where, under the legal authorities, some leniency can be directed to you in respect of your ability to comprehend the seriousness of what you did and your functioning at the time, mentally, and also of course you are entitled to mitigation for your plea of guilty and the remorse you have shown…”.

The sentencing judge also went on to say:

“… You are relatively young still, and that also is a factor which I have in mind, that there is still, hopefully, prospects for your rehabilitation.”

Also when interviewed the applicant acknowledged that his offences were serious.  He stated:

“Offences were very serious.   I think my behaviour is harmful, to myself and the community.   It is not a nice thing to do, to do an armed robbery as I have traumatised the people involved.”

Shortly after the offences occurred, the applicant readily admitted his involvement to police when questioned and also pleaded guilty to the charges. 

16.     In evidence to the Tribunal, the applicant said the weapon used in the robbery was actually a sawn off air gun which could not be fired.   Although it was clearly frightening to the victims involved, it could not be used to harm anyone.   Again I accept that evidence, but emphasise that the offence is still a very serious one .

17.     It is also necessary to consider the likelihood of repetition of conduct and risk of recidivism.  

18.     Although the applicant has significant list of prior convictions the evidence before the Tribunal suggests that there is a real prospect that the applicant can lead a law abiding existence in the future, particularly if he continues to take his medication and avoids the use of alcohol and drugs.   It is worth noting here that Mr Healey, an experienced clinical psychologist, said in  his oral evidence:

“… one has no cast iron guarantees, no crystal balls, but on the basis of the material one would have to conclude with quite a strong degree of certainty that in view of all of these matters, the way he presents and what he has done, it would be most unlikely for him to offend in a serious way again.”

Mr Healey also said in his report, which he confirmed in oral evidence:

“All these features demonstrate considerable character strength and tenacity in the face of adversity throughout his life   He acknowledges the wrongness of his conduct and has paid his debt to society through a term of imprisonment, at the same time complying with those treating him and supervising his parole.   He appreciates now more than ever the importance of maintaining his medication regime and abstaining from alcohol.    He has strong support of extended family at Portland and it was of note that the only family member in New Zealand is his mother who rejected her children and is still in a relationship with Robert’s stepfather who had perpetrated physical and sexual abuse upon him.”

19.     I consider the strength of the relationship between the applicant and his girlfriend Ms Ann idles  also to be significant.   The evidence indicates that she is opposed to drug use and also the “nightclub life” in which the applicant was involved  at the time of the more serious offences.    I find on the evidence Ms Iddles is likely to be a very positive influence on the applicant into the future.    Also I find that if the applicant continues to live and work in Portland, a rural provincial centre, there is less likelihood that the applicant will be involved in drug and alcohol abuse.

20.     I must also have regard to the question of general deterrence.   The issue here is whether the cancellation of the visa may prevent or discourage offences by other persons (paragraph 2.5(c) of Direction No. 21).    It was submitted on behalf of the respondent that the cancellation of the visa would have a deterrent effect against other non-citizens.    Although the respondent could use any cancellation as a warning to others I am not convinced on the evidence and arguments before me that this issue is a significant factor in the present case.   Clearly when criminal conduct is involved the most effective general deterrent is to be found in the prison sentence and other penalties and the publicity which sentences often receive.

(b)      The Expectation of the Australian Community

21.         I cannot claim to be an instant expert on public opinion and there was no evidence before me to assist my consideration of this matter.   But I think it is reasonable to say on the face of it that the Australian community would expect the respondent to cancel the visa of a person who committed armed robbery and a series of other offences.   However, I believe that if the community knew all of the facts in this particular case and was aware of the applicant’s background and that he has lived in Australia since he was 14 years of age,  is now making a considerable effort to rehabilitate himself and has significant family support in Australia, and none in New Zealand, then I believe there would be some sympathy for his predicament from fair minded community members.

22.     As was said by Deputy President McMahon in Re Leha and Minister for Immigration and Multicultural Affairs {2000] AATA 1054 @ 34:

“…there would be a general expectation in the community that the Act would be administered fairly and humanely.”

(c)In all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.

23.     The applicant has no children so the third primary consideration is not relevant in the present case.

Other Considerations

24. Some “other considerations” are set out in Direction No 21. These are clearly not intended to be exhaustive. Having considered those and other matters I find that there is a range of other considerations that work in the applicant’s favour. They are as follows:

(i)The length of time the applicant has lived in Australia.

(ii)The fact that he has no family support and no obvious job prospects in New Zealand

(iii)His strong family support from his aunt and uncle and their children and also his grandparents and a brother who all live in Australia.

(iv)The strong and positive influence of his girlfriend, Ms Ann idles.

(v)The fact that he has a good job in the fishing industry in Portland with genuine prospects of advancement.

(vi)The genuine efforts the applicant has made in prison and since leaving prison to rehabilitate himself including the various courses he has undertaken.

(vii)The strong support the applicant has in the Portland district as evidenced by various references tendered to the Tribunal.

25.     The evidence from his parole officer, Ms Robinson showed that he is cooperating and attending his appointments.   She said in evidence:

“He has been very reliable and diligent in keeping appointments, and on a couple of occasions when he hasn’t been able to keep appointments he has rang to inform us, and his appointments have subsequently been re-scheduled.   I found him to be compliant with the conditions of his order.”

Ms Robinson went on to say:

The fact that Robert had moved away from his former lifestyle in Melbourne and had stated that he wanted to make a new life for himself and to be working full-time --- Yes? ---- with having family support.    He also mentioned a number of times that he was in a stable relationship as well.  I felt that his prospects were very good.”

Conclusion

26.     I have had the advantage of observing the applicant and hearing his evidence given before the Tribunal and also the evidence of Mr and Mrs Nuku and Ms Ann Iddles and in assessing their demeanour in the witness box.   They all impressed as people who genuinely want to work together to ensure the applicant is a law abiding person.

27.     Although there is some risk of further difficulties I am satisfied  the applicant has a genuine desire to  rehabilitate himself and achieve success in his work and life.    He has strong support in that endeavour from family and community.   The evidence before me suggests that he can achieve his goals as long as he keeps taking his medication and avoids further involvement in drugs and alcohol abuse.

28. This is certainly not a clear cut case. The applicant has committed serious offences, but there are significant countervailing factors. After weighing up all the various considerations I have decided that I should exercise the discretion provided under s501(2) in favour of the applicant.

29. I set aside the decision under review and remit the matter to the respondent for further consideration with a direction that the discretion under s501(2) be exercised in favour of the applicant.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon. R J Groom (Deputy President)

Signed:   K L Miller (Administrative Assistant)

Date/s of Hearing  18 October 2004
Date of Decision  22 October 2004
Counsel for the Applicant         Mr Dennis Baker
Solicitor for the Applicant          McNamaras 
Counsel for the Respondent     Mr Michael Brereton
Solicitor for the Respondent     Australian Government Solicitor