Clarke and Minister for Immigration and Multicultural Affairs - [2000] AATA 1037

DECISION AND REASONS FOR DECISION [2000] AATA 1037

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2000/890

GENERAL ADMINISTRATIVE   DIVISION     )
           Re      DAVID CLARKE
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Deputy President DP Breen, Presidential Member

Date27 November 2000
PlaceBrisbane

Decision The Tribunal affirms the decision under review.

(Sgd) DP BREEN
PRESIDENTIAL MEMBER
CATCHWORDS
IMMIGRATION – visa cancellation – abhorrence of crime – secondary considerations under Direction – hardship to applicant.

Migration Act 1958 s 501
SRT v Minister for Immigration and Multicultural Affairs (1999) 91 FCR 234
Drake v Minister for Immigration and Ethnic Affairs No 2 (1979) 2 ALD 634

REASONS FOR DECISION

27 November 2000 Deputy President DP Breen, Presidential Member

This is an appeal against a decision by a delegate of the Minister for Immigration and Multicultural Affairs dated 13 June 2000 to cancel the applicant's Transitional (Permanent) Visa under Section 501 of the Migration Act 1958. Mr Clarke did not receive notification of the decision until 21 September 2000.
This case was heard before me on 17 November 2000 in Brisbane. The applicant, David John Clarke, was represented by Mr T Williamson of Counsel instructed by Messrs Bartels, Solicitors. Mr P O'Higgins, Solicitor of Messrs Blake Dawson Waldron, represented the respondent Minister.
Oral evidence was taken from the applicant; from Melissa Jane Greaves, the applicant's fiancee; and from Brian Francis Harper, a friend of the applicant. The following documents were also take into evidence.

Exhibit 1 "G" Documents
Exhibit 2 Supplementary "G" Documents
Exhibit 3 Report of Dr J Pentis dated 22.8.00 and attachments
Exhibit 4 Statement of David John Clarke with respect to his medical condition
Exhibit 5 Statement of David John Clarke with respect to his relationship with Melissa Jane Greaves
Exhibit 6 Reference from Brian Harper dated 14.11.00
Exhibit 7 Statement of Melissa J Greaves dated 10.11.00
Exhibit 8 References from Wayne Dent and Lian Dent dated 13.11.00
Exhibit 9 Extract from applicant's Corrective Services File
Exhibit 10 Extra documents from Department's file

Mr Clarke is 46 years of age and a New Zealand citizen. He visited Australia on a number of occasions from 1977 until 1990 and has resided here permanently since July 1990. He is an only child and both of his parents are now deceased. His former wife and daughter are now both Australian citizens. He was convicted in 1996 on one count of manslaughter and two counts of interfering with a dead human body. He received a sentence of 6 years imprisonment for the manslaughter charge and 18 months each for the other two counts, to be served concurrently. He was released from prison on 24 January 2000 and was taken into migration custody on 21 September 2000.
Mr Clarke's visa was cancelled under Section 501 of the Migration Act 1958. The convictions in 1996 and subsequent sentence mean that he has a substantial criminal record as defined in subsection 501(7) and so fails the character test. Therefore, the Tribunal must consider whether to exercise the discretion in favour of the applicant, notwithstanding that he fails the character test. Ministerial Direction No 17 – Visa Refusal and Cancellation under Section 501 applies to the exercise of the discretion.
There are three primary considerations under this Direction – protection of the Australian community, expectations of the Australian community and, where the applicant is involved in a parental relationship with any children, the best interests of those children.
Considering, firstly, the protection of the Australian community, the Tribunal must have regard to the nature and seriousness of the crimes committed, the risk of recidivism and the general deterrence effect that the cancellation of the visa will have on other non-citizens.
His Honour Judge Thomas made the following findings of fact on sentence:
"It is a macabre story. You had a friendship with two persons who were in a stormy homosexual relationship. It seems that the three of you were up to no good trying to make money out of some drug transaction when one of the other men lost control of himself. He strangled his partner and then tried to strangle you. He nearly succeeded. You managed to break free from the garrotte which he had around your neck and gave a severe blow to his throat with a karate chop. He fell to the floor and was bleeding and obviously seriously injured and incapacitated.
If the matter has stopped there, there would have been no problem….Unfortunately you returned to the prostate person and used the garrotte that he had attempted to use on you with the deliberate intention of killing him and on the evidence that was the result of your action."

Those were the facts accepted by the Trial Judge and so must be accepted by this Tribunal (see SRT v Minister for Immigration and Multicultural Affairs (1999) 91 FCR 234). There is further information in the Police brief that the applicant then put both bodies in a car and dumped them in the Mary River near Conondale. He did not assist Police by confessing to his involvement until at least a month later.
The Ministerial Direction lists manslaughter as a very serious offence. Interfering with a human body is not listed in the Direction but was described by the Trial Judge as "intrinsically revolting" and "a serious interference with the proper administration of the criminal law".
The applicant deliberately killed a person who was already incapacitated. He then showed a complete disregard for the value of human life by disposing of, not only the body of the person who had tried to kill him, but also that of a person whom he regarded as a close friend.
While the Jury and the Trial Judge accepted that the applicant was acting under extreme pressure at the time, this is still a repugnant crime and one which should be viewed as very serious – serious, that is, in terms of the policy and also in terms of community expectations relating to the conduct of members of our society.
Mr Clarke's criminal history includes a number of offences in New Zealand. He was charged with common assault, theft, theft as a servant, assaulting Police and receiving stolen property. The first four offences occurred when Mr Clarke was in his late teens, although the last offence was in 1988 when Mr Clarke was 34 years of age. By Mr Clarke's own admission he has participated in other activities which were not entirely above the law. His Honour Judge Thomas made it clear that he believed Mr Clarke had been involved in a drug deal with the deceased persons a few days before their deaths. While charges have never been laid with respect to this drug dealing activity, it does not reflect well on Mr Clarke's character and suggests a deeper involvement in criminal activity than his prior convictions suggest.
Whilst in prison, the applicant has completed all core programmes except for the Cognitive Skills Course. He received positive exit reports for the programmes that he did complete. He has also undergone extensive counselling on an individual basis and has undertaken a number of vocational courses.
It appears unlikely that Mr Clarke would ever take another human life and he has taken steps to address his offending behaviour. The Tribunal does note that he did not commit any offences in the few months he was in the community after his release from sentence and before he was taken into immigration custody. However, the fact that Mr Clarke does have a prior criminal history and a long association with people involved in criminal activity weighs against him. In the Tribunal's view, while the risk of recidivism may be low, it must still be considered a real risk. Given the nature and seriousness of the offence committed, it is a risk which is higher than the Australian community would be willing to bear.
The question of general deterrence is not of great weight in this matter. While the crime itself may have been widely publicised, the cancellation of the applicant's visa six years after the event is hardly going to be front-page news. The respondent conceded that this was a case where publication of the outcome would probably be limited to Mr Clarke's family and small circle of friends.
The second primary consideration is the expectations of the Australian community. The Australian community does expect to be protected from abhorrent crimes and that non-citizens who are convicted of such will be removed from Australia, even where there is assessed to be a low risk of recidivism. This aspect does not preclude or obviate the necessity to weigh up all pertinent expectations but highlights the relevance of the views of the Australian community with respect to particular crimes.
The taking of a human life and the disposal of a body are crimes which the Australian community views with particular abhorrence, even when there are extenuating circumstances. The Sentencing Judge's comments reflect this view.
The final primary consideration is enlivened in this case, as Mr Clarke has a 16 year old daughter, Victoria, who is an Australian citizen. Victoria has maintained contact with her father through letters, telephone calls and a few visits. It is clear that they share a loving relationship and Victoria will suffer emotional hardship if her father's visa is cancelled. However, her mother is involved in a stable relationship and Victoria is a part of that family unit. She has emotional and financial support from that family unit and appears to be a well-adjusted teenager.
It was the applicant's evidence that as Victoria is an Australian citizen and is well-established here, she would not relocate to New Zealand to be with him. However, given her age, she would be able to visit her father over there if she wished. While Victoria may benefit financially if her father remains in Australia, as he plans to start a business and contribute towards her university education, she will not be greatly prejudiced if this does not occur. Australia has an advanced education support system of which, as an Australian citizen, Victoria can take advantage.
On the whole, it cannot be said that Victoria's best interests require, to the exclusion of the Australian community's interests, that her father remain in Australia. She has a strong support network here and will be able to keep in contact with her father, although that contact may be somewhat less frequent than if he remained in Australia.
Therefore, the primary considerations are weighed against the applicant.
There are a number of secondary considerations which must also be taken into account, although one on its own cannot outweigh a primary consideration. The pertinent considerations are as follows:

(a)the extent of disruption to the non-citizen's family, business and other ties to the Australian community;
(b)genuine marriage to, or de facto or interdependent relationship with, an Australian citizen, permanent resident or eligible New Zealand citizen;
(c)the degree of hardship which would be caused to immediate family members lawfully resident in Australia;
(d)family composition of the non-citizen's family, both in Australia and overseas; and
(e)any evidence of rehabilitation and any recent good conduct.

There is an interesting anomaly in this Direction which was raised in submissions. Unlike Direction 9, which relates to deportations under Section 200, Direction 17 does not specifically provide for the hardship, which would be suffered by an applicant personally if returned to his or her country of origin, to be taken into account as a secondary consideration. The Tribunal will usually apply Ministerial Directions in respect of the exercise of discretionary powers unless its application tends to produce an unjust decision in the circumstances of the particular case. This was the approach laid down by Brennan J (as he then was) in the case of Re Drake v Minister for Immigration and Ethnic Affairs No 2 (1979) 2 ALD 634.
It is fundamental to the application of natural justice that the total impact which the removal of a right would have on an individual be considered when deciding whether in fact to deprive the person of that right. Ministerial Direction No. 17 is deficient to the extent that it fails to call for consideration of the hardship which an applicant will face upon return to his or her country or origin. This is a consideration which, in the interests of justice, the Tribunal will take into account in the overall weighing-up process for which this class of case calls.
Mr Clarke does not currently have a business in Australia, although he says he has plans to open a handcraft business upon his release. He is of the view that the demographics of New Zealand would prevent the business being commercially viable in that country.
The applicant is an only child and both of his parents are deceased. He is estranged from his relatives in New Zealand and his only immediate family resides in Australia. Having left New Zealand ten years ago, he currently has no ties to that country.
With respect to Mr Clarke's ties to the Australian community, he has been living in this country for ten years, although a substantial amount of that has been in incarceration. His formative years were spent in New Zealand as he did not relocate to Australia until he was in his thirties. Mr Clarke has a number of friends, some of whom provided references to the Tribunal. It is clear that they would suffer emotional hardship due to the loss of a friend. Mr Harper would feel the loss of the applicant quite keenly, as he said that he regards the applicant as a part of his family.
Mr Clarke is in a relationship with Ms Greaves, who is an Australian citizen. The couple met in 1992 and were in a relationship on and off until Mr Clarke was due to go to trial in 1995. They resumed their relationship when Mr Clarke was released in January this year and are planning to marry. While it appears that this relationship is genuine, the Tribunal notes with interest the fact that in Mr Clarke's submissions to the Department in October 1999 he was planning his future with a Ms Rayelene Gordon.
Ms Greaves said that she would love to go to New Zealand with the applicant but she did not see how that was financially possible. Ms Greaves is a trained nurse and would be able to obtain employment in New Zealand. There is also an extensive welfare system in that country which Australian citizens can easily access if she chose not to work.
While it is true that the relocation and leaving behind family and friends would cause some hardship to Ms Greaves, it would not be long term. If she chooses not to go to New Zealand with the applicant she would suffer emotional hardship due to the loss of the relationship. However, at the time which the relationship recommenced, they were aware that Mr Clarke's visa was under consideration for cancellation.
Any hardship which would be suffered by the applicant's daughter was covered under the primary considerations. There is no evidence that the applicant's former wife would suffer any hardship if his visa is cancelled.
As stated earlier, the applicant has undergone extensive rehabilitation courses while in prison and has not re-offended since his release into the community earlier this year. This is a consideration in his favour.
The applicant was involved in a motorcycle accident this year and suffered from a fractured tibia, fibula, collar bone, ankle and hip. It was his evidence that these medical conditions limit his mobility and will impact on his employability in New Zealand. He also said that the cancellation of his visa may impact on his ability to pursue a negligence claim against the driver as he would be unable to attend on medical practitioners in Australia for assessment.
The applicant has developed a number of new skills whilst in prison which will generally assist in his finding employment. While his disabilities preclude him from working, he can receive welfare payments as he did here in Australia. As such, he will not be penniless on his return and there are also a number of charity organisations which could assist in his re-establishment in New Zealand.
The medical profession in New Zealand is on par with that in Australia and Mr Clarke will be able to receive appropriate treatment for his ongoing medical problems. There should also be no problem in Mr Clarke being assessed by New Zealand specialists for his court case. Courts in Australia simply will not allow an insurance company to avoid its liability under the law because the plaintiff is unable to attend a doctor in this country. Conferences with solicitors and the hearing can be conducted with the use of telephones and video-conferencing. As such, his court case would not be prejudiced by the visa cancellation, merely made a little awkward to conduct. Courts and Tribunals regularly conduct hearings by these means of modern communication.
While it is acknowledged that the applicant will suffer hardship as a result of having his visa cancelled, it would be lessened if his fiancee relocates with him. In any event, it is a matter which falls well short of outweighing the primary considerations.
Therefore, the secondary considerations as a whole do not counter-balance the primary considerations and the Tribunal elects not to exercise its discretion in favour of the applicant.
The Tribunal affirms the decision under review.
I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member
Signed:         Emma Oettinger
  Associate
Date/s of Hearing  17.11.00
Date of Decision  27.11.00
Counsel for the Applicant        Mr T Williamson
Solicitor for the Applicant         Messrs Bartels
Counsel for the Respondent
Solicitor for the Respondent    Mr P O'Higgins, Messrs Blake Dawson Waldron