Cockrell and Minister for Immigration and Citizenship
[2007] AATA 67
•28 February 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 67
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2006/155
GENERAL ADMINISTRATIVE DIVISION ) Re MARCUS COCKRELL Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Senior Member R W Dunne Date28 February 2007
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
..............................................
R W DUNNE
(Senior Member)
CATCHWORDS
IMMIGRATION – Spouse (Subclass 801) Visa – discretion to cancel visa where applicant fails character test – substantial criminal record – Ministerial Direction No 21 – primary and other considerations – offences involving fraudulent conduct – certain convictions set aside on appeal on technical grounds – applicant provided misleading information – risk of recidivism – best interests of infant child – decision under review affirmed.
Migration Act 1958 ss 499(2A), 500(6H), 501(2), 501(6)(a) and 501(7)(c)
Ministerial Direction No 21
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 57 ALD 257
Re Quinn and Minister for Immigration and Multicultural Affairs [2000] AATA 389
Re McIlvaney and Minister for Immigration and Multicultural Affairs [2000] AATA 416
Re Say and Minister for Immigration and Multicultural Affairs (2006) 91 ALD 212
Re Huynh and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 938
Re Afoa and Minister for Immigration and Multicultural Affairs [1999] AATA 82
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Rocca v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 87 ALD 529REASONS FOR DECISION
28 February 2007 Senior Member R W Dunne 1. The applicant, Marcus Geoffrey Cockrell, came to Australia in June 1994.
2. On 1 June 2005, a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs decided that the applicant had not satisfied him that he passed the character test under s 501 of the Migration Act 1958 (the “Act”), and the delegate exercised the discretion pursuant to s 501(2) of the Act to cancel the applicant’s visa. The applicant has applied to this Tribunal for review of the delegate’s decision.
3. The hearing before this Tribunal arose as a result of a consent order made by the Federal Court, pursuant to s 44(5) of the Administrative Appeals Tribunal Act 1975 (the “AAT Act”), remitting the matter to be heard and decided again, with the hearing of further evidence, by this Tribunal in accordance with the directions of the Court.
4. At the hearing, the applicant appeared on his own behalf and Mr Prince appeared on behalf of the respondent. The following documents, lodged pursuant to s 37 of the AAT Act, were admitted into evidence:
·Exhibit A1 – applicant’s documents (from the previous Tribunal hearing);
·Exhibit A2 – further volume of applicant’s documents;
·Exhibit A3 – witness statement of Mr R Tuddenham dated 11 September 2006;
·Exhibit A4 – witness statement of Mr C Courtney dated 6 November 2006;
·Exhibit R1 – s 501G documents (from the previous Tribunal hearing);
·Exhibit R2 – Supplementary G documents (from previous Tribunal hearing);
·Exhibit R3 – respondent’s further materials;
·Exhibit R4 – witness statement of Ms R Fraser dated 6 November 2006;
·Exhibit R5 – details of various text messages sent between the applicant and Ms R Fraser during the period 1 September 2005 and 1 November 2005;
·Exhibit R6 – copies of emails dated 21, 24 and 28 July 2005, passing between Ms Fraser and the applicant and an email dated 24 July 2005 passing between Ms Fraser and the applicant’s mother, Ms R Cockrell;
·Exhibit R7 – photograph of Ms Fraser dated on or about 24 November 2005.
issue for the tribunal
5. The applicant conceded during the hearing that he did not pass the character test under s 501 of the Act. Under s 501(6)(a), a person does not pass the character test if he or she has a substantial criminal record, and under s 501(7)(c) is taken to have a substantial criminal record if he or she has been sentenced to a term of imprisonment of 12 months or more. The applicant was sentenced to imprisonment for terms exceeding this period on 13 November 2003. In these circumstances, he is not able to successfully challenge the delegate’s decision that he did not pass the character test. The question then arises whether to exercise the discretion conferred by s 501(2) of the Act to cancel the applicant’s visa. The only issue before the Tribunal is whether this discretion should be exercised.
legislation
6. The Act relevantly reads as follows:
“501 (2)The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.
…
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
…
Otherwise, the person passes the character test.
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
…”
evidence
Background Evidence
7. Much of the documentary evidence before the Tribunal, and the oral evidence of the applicant as to certain of the background facts in this case, is not in dispute. For the sake of expediency, a number of the undisputed findings made when the matter was heard previously are adopted as findings by this Tribunal. The previous findings follow, along with the further findings made by this Tribunal.
8. The applicant was born on 1 July 1970 in the United of America, and is a citizen of that country. He obtained a Bachelor of Economics degree from the University of Southern California. In 1994, he came to Australia to visit a friend on a Tourist (Short Stay) (Subclass 670) Visa. He later met Ms Carolyn Brough, an Australian citizen, and after a 4-year relationship they were married on 6 September 1999. As a result of the marriage, the applicant obtained a Spouse (Subclass 801) Visa. The applicant and Ms Brough were divorced on 25 August 2004. The applicant’s mother and two sisters still reside in the United States of America. His father was never part of his life, and he only met him on two occasions when he was a child.
9. When he first arrived in Australia, the applicant resided in Sydney and worked at odd jobs. In May 1996, he was hospitalised. According to the discharge letter (Exhibit R1, page 127), the applicant was admitted to the Fairfield Hospital in Prairiewood on 10 May 1996 and was discharged on 13 May 1996. His problems on admission were said to be sore throat, fever, loss of appetite and dehydration, and the final diagnosis was given as tonsillitis and dehydration. He was discharged to “home” and his medication on discharge was oral penicillin. It was the applicant’s oral evidence that he was hospitalised for a gastro-intestinal problem. He was in severe abdominal pain and was side-lined for months. He started using cocaine, on a part-time, casual basis which he said was a function of the people who he was associating with at the time. His use increased in 1997, but then he moved to Brisbane from New South Wales to be with his future wife, Ms Brough. In 1999, after be had moved to Brisbane, he established a business involving the spraying of concrete over bitumen surfaces, and engraving concrete surfaces. He operated this business until his arrest on 27 March 2002.
10. When the applicant was in Queensland, he started offending. He committed a series of offences between 1998 and 2002. The offences involved the establishment and use of different aliases in order to fraudulently claim income tax credits and opening and operating false bank and credit card accounts. The monies obtained from the Commonwealth Government, banks and other institutions totalled $644,390.65. On 13 November 2003, the Queensland District Court convicted the applicant of numerous offences, to which he had pleaded guilty. Those offences, as they were detailed in the previous Tribunal hearing, were as follows:
(a) three counts of dishonestly obtaining financial advantage from the Commonwealth, for which he was sentenced on each count to three and a half years’ imprisonment with a non-parole period of eighteen months;
(b) five counts of attempting to obtain financial advantage, for which he was sentenced on each count to three and a half years’ imprisonment with a non-parole period of eighteen months;
(c) one count of attempting to destroy evidence, for which he was given a cumulative sentence of one month’s imprisonment;
(d)one count of opening a false account, for which he was sentenced to one and a half years’ imprisonment; and
(e) five counts of operating a false account, for which he was sentenced on each count to one and a half years’ imprisonment.
11. The applicant also pleaded guilty to four counts of dishonestly obtaining credit contrary to the Criminal Code 1899 (Qld). On the same date, 13 November 2003, he was convicted by the Queensland District Court of those counts, and sentenced to six years’ imprisonment on each count, with a recommendation that he be considered eligible for post-prison community-based release after serving two years. The Court of Appeal set aside these convictions on 11 March 2005, on the technical ground that the indictment was not presented by a person authorised to do so under Queensland law.
12. The convictions referred to in paragraph 10 above were for offences under the Crimes Act 1914 (Cth). Mr Cockrell has appealed to the Federal Court against the convictions referred to in paragraphs 10(a) and (b). His notice of appeal asserts (amongst other things) that the Commonwealth Attorney General failed to order parole in accordance with sections 19AL and 19AM of the Crimes Act, and he seeks judicial review of a retrospective parole order which was back-dated to 23 September 2003. The appeal is not expected to be heard for some time. It does not entail any challenge to the legality of the convictions or sentences imposed. Further, it does not affect the convictions for the six offences referred to in paragraphs 10(d) and (e). As already mentioned, these six offences resulted in sentences in each case of one and a half years’ imprisonment, so that the applicant fails the character test in s 501 of the Act, irrespective of the outcome of his further appeals.
13. On 7 October 2004, the applicant was released into the community, following an assessment by the Queensland Community Corrections Board (the “Board”) that he was eligible for parole, to live with Ms Renea Fraser at her home at Yeronga in Queensland. He was assessed by the Board as being a low risk. The applicant had commenced a friendship with Ms Fraser prior to his arrest. However, following an argument on 10 November 2004, the applicant left Ms Fraser’s home on 11 November 2004. A further argument occurred in December 2004, but by Christmas 2004 Ms Fraser was pregnant with the applicant’s son, Jedidiah Fraser (Jedi), who was born on 20 July 2005. Ms Fraser has two older sons, Jhaycob (who is also referred to as “Jacob”) and Izaak, from different relationships.
Evidence of the Applicant
14. The applicant gave evidence that, following the events that took place with Ms Fraser in November and December 2004, she invited him to have Christmas dinner with her and her family on Christmas Day. Then, in January 2005, she invited him over to her house and, in February 2005, she applied for a domestic violence order against him. On 22 February 2005, Ms Fraser withdrew her application.
15. Although he was born on 20 July 2005, the applicant said that he first heard of his son’s birth by email from Ms Fraser on 28 July 2005. Between 28 July 2005 and 28 August 2005, he visited his son on an average of once every 3 days at the hospital and then, when Jedi was released from the hospital, he saw his son at Ms Fraser’s house. These visiting arrangements ended after 28 August 2005 when Ms Fraser said that she no longer wanted the applicant at her house because her son, Izaak, had developed an attachment to him when he was living with Ms Fraser during October and November 2004. Although the applicant offered to pay for the entertainment of Izaak and Jacob away from Ms Fraser’s home so that he could visit with Jedi, the applicant said that Ms Fraser refused to allow the visits to continue.
16. The applicant’s further evidence was that Ms Fraser was very supportive of him during his time in prison, probably more so than his former wife, Ms Brough. He said that, in January 2005, he was offered permanent employment with a polystyrene company he had been employed with prior to Christmas 2004. The employment terms were not satisfactory and he left and went to work at a Visiboard company. After that, there was some time when he was unemployed and then, in February 2005, he started working with a company called Tessa Corporation. He said that proposed visitation arrangements for Jedi were drawn up by Ms Fraser in August 2005 (Exhibit A2, pages 138-139) when he was visiting her home. The proposed arrangements spoke of the applicant having supervised contact with his son at the Building Bridges Contact Centre in Lutwyche, north of Brisbane. The applicant was taken into immigration detention on 20 October 2005.
17. In cross-examination by Mr Prince, the applicant said that he had had a cocaine addiction in 1996, 1998, 1999, 2000, 2001 and 2002. He also admitted that, during the course of his relationship with Ms Brough, he had had an affair with another woman in 1998 and, at various times, with Ms Fraser.
Evidence of Mr R Tuddenham
18. Mr Tuddenham’s evidence in person for the applicant was as the President of the South Australian Lone Fathers’ Association, a position he had held for the past 10 years. He said he had experience in commenting on the best interests of the child and the relevance of the father’s role in the life of the child. Following objections from Mr Prince, the applicant took the witness to his statement dated 11 September 2006 (Exhibit A3). Mr Tuddenham was referred to the following extract from his statement:
“We must look at the best interests of the child and we believe to remove the father from the child this is not acting in the child’s best interests.”
When asked to expand upon this statement, Mr Tuddenham said:
“… mainly a male child needs a male role model in his life. He needs a father. A mother cannot teach a young man to become a man. It needs a male role model in his life. And what we have found the [sic] with Lone Father’s Association, where this has been absent, the children have been exposed and been vulnerable to the wrongs in society, whether it be crime or whatever sexual stuff, drugs, whatever it may be, and it is quite evident there.
…
The mother could have a new man in her life, and I am not saying it is going to be bad for the child, but there is nothing that can replace the father of the child, if the father in this case is a good father.”
(Transcript 9 November 2006 at pages 15-16)
19. The applicant then examined Mr Tuddenham about the consent contact orders that had been made in relation to Jedi. Mr Tuddenham said:
“The Courts don’t give out contact orders to people who are not either entitled to or they are not the right person to take out these orders. So therefore it is something that you have got to earn within the Courts and that would be that you have got to be a good parent, or a person that is named in these orders, you have got to be a fairly good upstanding citizen to take these orders on, so therefore the Court will not give these orders out willy-nilly. … So therefore, I would say in this case, if the orders have been given regarding contact to Mr Cockrell, then the Courts have seen that he is a good parent, and therefore they accept that he can take his contact up with the child without any worries.” (Transcript 9 November 2006 at page 17)
In cross-examination by Mr Prince, the following exchange took place:
“Mr Prince: Where this matter proceeded by way of consent before the Federal Magistrate’s Court, that doesn’t say anything at all, on your evidence, about Mr Cockrell’s relationship with his son. Do you agree?
Mr Tuddenham: Not really, no. No, because consent – consent is usually something that is done between both parents. If both parents agree to it then they’ve consented to it. Therefore, the Courts will accept it.” (Transcript 9 November 2006 at page 18)
When cross-examined further by Mr Prince, Mr Tuddenham admitted that he had no formal qualifications that might be relevant to the best interests of Jedi. On re-examination, he said he worked with people who had formal qualifications.
Evidence of Mr C Courtney
20. Mr Courtney gave his evidence by telephone from Queensland. He stated his occupation to be a computer designer and was referred by the applicant to his statement dated 6 November 2006 (Exhibit A4). His evidence for the applicant was that, as far as Tessa Corporation was concerned, the applicant was “irreplaceable”. He was an integral part of Tessa Corporation’s dealings with “overseas organisations”. He was aware of the applicant’s indiscretions in the past, and said that his immigration detention had a detrimental effect on the company. When asked to describe the applicant’s professional attitude, Mr Courtney responded to the applicant, “You are a man who knows what he wants, how to get it, and how to do it”.
21. In cross-examination by Mr Prince, Mr Courtney described Tessa Corporation as a very small, in-house concern which, at the moment, employed two staff members, apart from himself. He was the only director of Tessa Corporation Pty Ltd. However, the applicant had been essentially responsible for the day-to-day operation of the company. He said the applicant was a contractor, not an employee and was responsible for his own “dues”. When asked about his role within the company, Mr Courtney said:
“I’m a relatively intelligent individual, but I do not have – I am not computer literate so therefore that falls to Marcus. I’m [sic] basically designed the technology and that does not – mind me [sic], that is quite important in itself, but it does not come forward to say: well, I’m the most important person on the plant [sic], so as I said, I’m very good at what I do, but there are other things that I have got no capability in whatsoever.” (Transcript 9 November 2006 at page33)
When asked later about Tessa Corporation’s product, he described it in the following terms:
“It’s a state of the art cutting edge technology, principal to principal in the banking world – banking terms of currency trading in a spot-swap conversion market and it deals principal to principal, essentially bank to bank.” (Transcript 9 November 2006 at page 34)
Evidence of Mr T Watson-Munro
22. Mr Watson-Munro’s evidence was also given by telephone. He was referred to his psychological report dated 10 July 2006 (Exhibit A2, pages 417-423). He said that he had extensive experience in the assessment of people charged with criminal matters. However, he had not had the opportunity of meeting the applicant in person and that this might be seen as a potential weakness in the opinion he had given. His evidence was that the applicant had been heavily addicted to cocaine and that this had led to his offending. He noted that the applicant had been drug-free for a number of years, that the international criteria for full remission was no drug use for a period of two years and that the applicant was well in excess of that. He said, clinically speaking, it could be argued forcefully that the applicant was in full remission from his drug addiction. In cross-examination by Mr Prince, Mr Watson-Munro said that, when he interviewed him by telephone, the applicant had sent him some CD ROMs that had the circumstances of his offending, together with transcripts from various hearings in which the applicant had been involved. He admitted that much of his report hinged on what he had been told, or what he had been provided with, by the applicant. He said he had had discussions with a female friend of the applicant, Cathy Tsaousadis, who was very supportive of him. However, he admitted that his report essentially reflected what Ms Tsaousadis had said to him. He said he had spoken to the applicant on 28 April and 21 June 2006 and he had had a number of brief telephone conversations with the applicant since then. He agreed that the conduct of telephone conversations only with patients was not an ideal clinical practice.
23. In response to questioning about comments in his report relating to Jedi, Mr Watson-Munro said:
“… he is very keen to re-establish contact with his son. My view is, if that’s to occur, and there’s consensus from the mother and so on, it would need to be structured and, there would be a gradual re-introduction but I gather that the contact with the child has been non-existent for some time.” (Transcript 9 November 2006 at page 67)
24. In cross-examination by Mr Prince about the applicant’s involvement with cocaine, the following exchange took place with Mr Watson-Munro:
“Mr Prince: Now did Mr Cockrell tell you what brought about his dependence on cocaine?
Mr Watson-Munro: He started using it to be energised, to offset feelings of inadequacy and depression, and it just really went from there.
Mr Prince: It wasn’t to manage pain?
Mr Watson-Munro: No, what he told me was really it was long symptoms of anxiety and depression. He used cocaine in order to cope with low degrees of energy and driving long hours which his work required of him. There’s nothing about pain here, in my notes.” (Transcript 9 November 2006 at page 68)
In re-examination by the applicant, Mr Watson-Munro was referred to his report (Exhibit A2 at page 420), where he said:
“It would appear that his addiction commenced in 1996 subsequent to him being hospitalised in May of that year for de-hydration. Mr Cockrell stated that he continued to suffer a loss of energy and chronic cramps and pain the abdominal region and it was essentially in this context that he commenced self-medicating with cocaine.”
In further cross-examination by Mr Prince, the following exchange took place:
“Mr Prince: So in part it was an issue of pain that led Mr Cockrell to the addiction?
Mr Watson-Munro: Well, I’m not sure that there’s a nexus between the pain and the addiction. The way that I’m interpreting what I’ve written there is that, as part of the general issue that run down, he was suffering from pain, he was hospitalised for de-hydration, and obviously that had a debilitating impact on him, and that was one of the factors that led to him using drugs.” (Transcript 9 November 2006 at page 69)
Evidence of Ms R Fraser
25. In giving evidence by telephone for the respondent, Mr Prince referred Ms Fraser to her witness statement dated 6 November 2006 (Exhibit R4) and to the various attachments to the statement. In addition to her statement, Ms Fraser’s evidence was that, in February 2005, she had made an application for a domestic violence order against the applicant. The application related to allegations made by Ms Fraser concerning the applicant and arising out of incidents that had occurred in November and December 2004. Her evidence was also that, on 24 December 2004, her doctors confirmed that she was pregnant to the applicant, her son (Jedi) had been born on 20 July 2005 and that on 21 July 2005 she had attempted to telephone the applicant from the hospital to inform him of Jedi’s birth. She had also sent emails asking the applicant to contact her and giving him her mobile phone number.
26. Ms Fraser was referred to the statutory declaration, dated 23 September 2004, that she made in relation to the applicant (Exhibit A2 at page 555) where she said, amongst other things:
“… how very much this man Mr Marcus Cockrell means to all of us. Marcus has been in our lives since 1999, he has filled a void left in his own life by being a stable male presence to my oldest child Jhaycob Fraser and is now, given opportunity, beginning to do the same for my youngest son Izaak Fraser.”
Ms Fraser acknowledged that, where she wrote, “Marcus has been in our lives since 1999”, she should have written that he had been in her life and not in the lives of her children. She said her children had only got to know the applicant when he was released from prison in October 2004. Then, in a facsimile dated 29 March 2005, she said she wrote to a Ms Heidi Smith, an officer of the respondent (Exhibit R1 at page 186), to withdraw any references or material that she had written in relation to the applicant. When questioned by Mr Prince about the facsimile and why what she had said in it differed from what she had said in her statutory declaration, Ms Fraser said:
“When I began to realise that everything that I thought I knew about this man was no longer true I got really scared. So I started digging through stuff that he had sent me while he was in prison, cards; anything to try and piece together what had happened. Plus I was scared because of the domestic violence involved too. I was just scared.” (Transcript, 10 November 2006 at page 163)
27. When asked by Mr Prince to elaborate on why she wished to withdraw her statements about the applicant, she mentioned a meeting she had had with a Mr Les Austen. He had been incarcerated with the applicant and had been released, prior to the applicant’s release, in late September 2004. She said that, at her meeting with Mr Austen, he had told her that the applicant had only intended to use her and her children “for his immigration case”. She said she realised that what she had written about the applicant was no longer true, that she needed to “fix it” and withdraw everything that she had put forward in support of his immigration case. In cross-examination by the applicant as to whether she was simply acting as a “woman scorned”, Ms Fraser re-iterated:
“Everything I had written in my previous references to stat decs towards your immigration situation was no longer true, because now that I had lived with you, I had hands-on experience, everything I had written was no longer true. I had said that under oath, so I now needed to withdraw that information because it was not true. It wasn’t a mind-set in just March. It started from November, December.” (Transcript 10 November 2006 at pages 184-185)
When asked again by the applicant whether her previous statements had been true, Ms Fraser said that she believed them to be true at the time she made the statements.
28. After she left the hospital on 11 August 2005, Ms Fraser said the applicant had contact visits to see Jedi at her home on 13 August, 20 August and 28 August 2005. However, she said the visits stopped after 28 August 2005 because she was no longer comfortable with him having contact in her home, especially while her children were present. She told the applicant that future contact would be made at the Building Bridges Contract Centre in Lutwyche. When questioned about domestic violence issues, Ms Fraser described the incident on 10 November 2004 when she and the applicant had argued, where he had held her arms and caused bruising and when, in the course of losing her balance and falling backwards, she had swung her arm and struck the applicant under the jaw. Ms Fraser later arranged the production of a photograph of the bruising she said had been caused to her arms (Exhibit R7). Then, in early December 2004 after the applicant had left her home, Ms Fraser and the applicant argued again, when she visited him at his nearby residence. She said:
“I went down to his place and I wanted to talk to him because I was actually concerned, the possibility of me being pregnant was very possible, although I did not have any confirmation of that, and I was scared, so I went down there, and he was not interested in really talking to me. It was late at night. We were out standing on the road in front of his place, which was just down the road from my place at the time, and he even said to me, ‘Stop raising your voice or I am going to throw you across the road.’” (Transcript 10 November 2006 at page 169)
29. When referred by Mr Prince to her witness statement (Exhibit R4) and to the draft child agreement for financial support appearing at page 70 of the statement, Ms Fraser’s evidence was that the draft had been a “mocked up” agreement prepared by the applicant and sent to her some time in 2004. In it, the applicant had written, “Simply fill in the kid’s names sign it and make a copy to send back to me.” She said the draft had formed the basis of the final agreement between her and the applicant for her children. It was her evidence that the agreement had never been honoured by the applicant.
30. When referred to the letter enclosing photographs taken of Jedi and forwarded by her to the applicant (Exhibit A2 at page 726), it was Ms Fraser’s further evidence that the photographs had been professionally taken and sent to the applicant, in addition to those that had normally been sent to him. She said she had probably sent photographs every month and that the professional photographs were in addition to those normally sent in accordance with the orders made by the Federal Magistrates Court.
31. When asked by Mr Prince what she considered to be in the best interests of Jedi and what the applicant could offer, Ms Fraser said:
”Well, I believe what’s in the best interests of Jedidiah is, you know, that he does have stability and security in and around his life. Children are impacted by what they see, and consistency. And given Marcus’ proven track record and criminal history, I don’t see how he can contribute a great deal, because when he had opportunities to contribute, he didn’t. He has no networks of support around him because he’s spent so much time institutionalised. I don’t see how that could be, you know, in good interests.
…
Well, we lead by our example. I just – I look at what kind of example that has already been set, that Marcus has already set and it concerns me. I’m very concerned. The clear fact is you can’t give what you haven’t got. Children learn by watching what others do. So yes, I’m very concerned what he can offer.
…
What’s in the best interests of my son? I would think if he were to have some stability and security around his life, and he can prove that, you know, an ongoing proven track record and our support around him, that would be a better insight in the best interest of Jedidiah. At this point, he has nothing to offer him. He can’t even offer him financial assistance. Even if he were to return to the workforce, he still doesn’t offer that. I only see continual ongoing conflict, which is what always hurts kids in the long term, in my experience.” (Transcript 10 November 2006 at pages 176-177)
32. When the applicant questioned Ms Fraser about her reasons for inviting him to her family’s home at Christmas in 2004, she said:
“Well, for me, I actually wanted what was in the best interests of my unborn child. I had just found out on Christmas Eve that I was pregnant. It was confirmed with a doctor and I wanted to communicate with you face to face. I also wanted to ask you questions – what were you prepared to do for your unborn child – and I also wanted to break that news to my family. So there were my motives, to communicate, because I actually wanted to be mature regardless of the fear that I had, and I did feel safer. I wouldn’t have invited you back to my home and just have a one on one, considering the circumstances and the time frame at that time.” (Transcript 10 November 2006 at pages 187-188)
33. Then, the applicant asked Ms Fraser why she had not pursued her application for a domestic violence order against him. She said the police prosecutor had advised her to do so because there were no witnesses at the time of the argument. When asked by the applicant why she had applied for the domestic violence order in the first place, she said because she was setting an example for her children “that they shouldn’t allow any kind of abuse”. She said she never expected, when she applied for the order, that she would have to “jump through hoops especially when [she] was the victim”.
34. Finally, when the applicant asked her why she was asserting that the applicant wanted to be with his son merely to support his claim to stay in Australia, Ms Fraser also gave evidence that she was concerned about the “extremes” the applicant had gone to with respect to her son, Jacob. She said:
“Simply because of the documents that I had found – while you had written them while you were in prison and how – thinking back over how important it was for you to win the immigration case, although I didn’t have many details as to what your case was all about, and that’s why I submitted them in relation to Jacob. If you were so willing to write up such detail – I mean, I recall you asking me to see a counsellor in relation to Jacob so they could write a report as to how it would affect Jacob’s livelihood if you were to be removed from the country. You were willing to go to such extremes with Jacob who you really didn’t – have spent any time with to really get to know, only from what I had told you, then imagine what you could be willing to do with your own flesh and blood. That’s where all the fear came from.” (Transcript 10 November 2006 at page 212)
consideration of ministerial direction no 21
35. The Tribunal had before it a considerable amount of evidence, both documentary and oral evidence from five witnesses, and including evidence from the previous Tribunal hearing. Having regard to s 499(2A) of the Act, in considering whether to exercise the discretion to cancel the applicant’s visa, the Tribunal must take into account, as a guide to making its decision, Ministerial Direction No 21 (the “Direction”), which the Tribunal is bound to follow: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 57 ALD 257. The Direction is made by the Minister pursuant to s 499 of the Act for the guidance of decision-makers in making decisions to refuse or cancel a visa under s 501. Part 2 of the Direction relates to the exercise of the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia. Paragraph 2.2 of the Direction provides that decision-makers must have due regard to the importance placed by the Government on three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations. The relevant considerations in the Direction will be addressed in turn by the Tribunal in the following paragraphs of these reasons.
36. The three primary considerations in the Direction are expressed 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.
First Primary Consideration – Protection of the Australian Community
37. In considering the protection of the Australian community from the actions of criminals and lessening the risk of crime and disorder to the Australian community, the Direction identifies three factors relevant to an assessment of the level of risk to the community of the continued stay of a non-citizen.
38. Seriousness and Nature of the Conduct The first of the three factors is the seriousness and nature of the conduct (paragraph 2.5(a) of the Direction). In relation to this factor, paragraph 2.6 includes a detailed list of examples of offences which are considered by the Government to be very serious. Included in the examples is serious theft (including “white collar” crimes) and paragraph 2.6(l) states that “such crimes are of concern because of the amounts of money involved and/or the disruptions caused to individuals, business and Government.” The applicant’s convictions on 13 November 2003 for various counts involving fraudulent conduct, as detailed in paragraph 10 of these reasons, constituted “white collar” crimes.
39. The remarks of the sentencing Judge on the applicant’s conviction for the offences were outlined by the Tribunal in the previous hearing. It is appropriate that they be repeated here:
“Marcus Geoffrey Cockrell, you have pleaded guilty to a large number of offences, nineteen in all. They are really in two blocks. The first concern a fraud on the Commonwealth in that you obtained income tax credits by using false documentation, lodging business activity statements in two different names and then obtaining $374,367.84, and attempting to claim a further $351,536 but the tax office minimised the loss by taking back various amounts. At the end of the day, the actual loss for the Australian Taxation Office was $41,502.13 for which it seeks reparation and pursuant to section 21B of the Crimes Act. I order you to make that reparation.
The other offences involve you opening false accounts, 52 false accounts in all; obtaining 34 credit cards over a period of three and a half years using false documentation; and obtaining credit from the seven banks to the extent of $270,022.
The amount obtained from the Commonwealth and the banks together is $644,390.65, a significant sum of money.” (Exhibit R1 at page 89)
It is noted that the sentencing Judge declined to make a recognizance release order pursuant to s 19AC(4) of the Crimes Act1914 “because of the number and seriousness of the offences, the period of time involved and the sophistication of the criminal enterprise” (Exhibit R1, page 91). The Tribunal finds that the crimes committed by the applicant constitute offences regarded by the Government as very serious.
40. Under paragraph 2.7 of the Direction, the Tribunal must take into account, as an indication of the seriousness of the offender’s conduct against the community, the sentence imposed for the relevant crimes(s). By virtue of paragraph 2.7(a), the Tribunal must also have due regard to the extent of the person’s criminal record, including the number and nature of the offences, the time between offences and the time that has elapsed since the most recent offence, and by virtue of paragraph 2.7(b), the Tribunal must consider the repugnance of the crime(s). By virtue of paragraph 2.8(a), the Tribunal must take into account any relevant factors provided by the non-citizen as mitigating factors.
41. The Tribunal notes that the four convictions against the Queensland Criminal Code were set aside on appeal. However, the applicant admitted that he had engaged in the offending conduct that gave rise to those convictions, as well as the conduct that resulted in the eight pending appeal convictions for obtaining or attempting to obtain a financial advantage. Substantial penalties, including significant non-parole periods, resulted from these twelve convictions. The applicant had no previous convictions before he started offending in 1998, but he accepted that what he did was wrong and that the punishment that he got for it was fair. Whilst in incarceration, the applicant undertook various courses in personal improvement, including courses on anger management. He also received reports from Australasian Correctional Management Pty Ltd that, during his incarceration, his behaviour was generally good, as was his attitude towards other inmates and staff.
42. In the applicant’s case, although his convictions were recorded on the same date, from the material before the Tribunal, the offending involved took place over a continuous period of time. It also occurred quite frequently. The applicant has not been charged with any further crimes since his release from prison in October 2004 and it has been more than 4 years since he last offended. But he has, of course, been in prison or in immigration detention for most of the time since he last offended.
43. The Tribunal has taken into account the mitigating factors referred to above and the history of drug addiction which the Tribunal has, on balance, accepted as influencing his conduct. The Tribunal has also taken into consideration the other matters referred to in paragraphs 2.6 to 2.8 of the Direction. Notwithstanding these factors and the other matters, the Tribunal regards the offending and criminal conduct of the applicant as very serious. As already mentioned, the offences are of the kind regarded by the Government as very serious. The offences were significant in number and the applicant’s conduct was blatantly fraudulent affecting, as Mr Prince submitted, the Australian tax-paying community and Australian financial institutions.
44. Likelihood of Repetition of the Conduct, and Risk of Recidivism The second of the three factors referred to in the Direction (paragraph 2.5) is the likelihood that the conduct may be repeated, including any risk of recidivism (paragraph 2.5(b)). As expressed in paragraph 2.10 of the Direction, it is the Government’s view that the person’s previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism.
45. The applicant’s general conduct and criminal history has been referred to by the Tribunal earlier in these reasons. The applicant said that he had overcome his drug addiction, which had caused him to commit the crimes concerned. He made reference to the programs of rehabilitation that he had undertaken whilst incarcerated. He also referred to the offer of re-employment that he had from Tessa Corporation and to the offers he had received to undertake skills training. The applicant submitted that all these matters indicated a lower risk of recidivism, and he argued that his submission was supported by the decisions in Re Quinn and Minister for Immigration and Multicultural Affairs [2000] AATA 389 at paragraph 11 and Re McIlvaney and Minister for Immigration and Multicultural Affairs [2000] AATA 416 at paragraph 11. He further submitted that, whilst he had been in the community between October 2004 and October 2005, he had maintained sobriety, good conduct and exhibited no behaviour that would suggest that he was at any risk of recidivism. In addition, he mentioned his family responsibilities, in particular to his son, Jedi, as a major motivator to deter him from crime in the future.
46. As to the applicant’s drug addiction, his evidence on this point, as the Tribunal understood it, was somewhat inconsistent. Initially, he said that he started using cocaine because of gastro-intestinal illness and because his prescription medicine had not been strong enough to treat the pain. Later, he said that his use of cocaine was as a result of the people he was associating with at the particular time. In support of his own evidence that he had suffered from cocaine addiction, he referred to the findings of Judge O’Sullivan (Exhibit A2 at page 558) and the report of Mr Watson-Munro (Exhibit A2 at pages 419-420). The Tribunal acknowledges the force of Mr Prince’s submission that there is no independent evidence to corroborate the applicant’s claim of drug addiction. As can be seen from paragraph 24 of these reasons, the evidence of Mr Watson-Munro appeared somewhat inconsistent and was difficult to follow. His oral evidence and what was contained in his report was based solely on the information that the applicant had sent to him and on the interviews that were conducted by telephone. He acknowledged that this was not the ideal way of obtaining a history from a person he was examining and was not his preferred way of forming an informed opinion, sufficient to provide an expert report. In the circumstances, the Tribunal attaches little weight to the evidence of Mr Watson-Munro.
47. The Tribunal is cognisant of the fact that it has been well over 4½ years since the applicant last offended. As to this, Mr Prince pointed out that the applicant had either been in prison or in immigration detention for all but a little more than one of those years. The Tribunal agrees that that factor diminishes the weight that might otherwise be attached to the absence of offending during the relevant period. As a matter of evidence, the Tribunal accepts that the applicant participated in the various drug rehabilitation programs referred to in Exhibits R1 and A2, and that he did not use drugs during his incarceration. However, whether the applicant had been addicted to cocaine or not, the Tribunal cannot overlook the fact that he had a considerable incentive not to use drugs then, having regard to his eligibility for early parole. Mr Prince also submitted that the applicant’s criminal behaviour, as noted by Judge O’Sullivan, involved a sophisticated criminal enterprise. It involved, at the very least, the production of forged documentation, and would have involved considerably more than a layman’s knowledge of the procedures involving the handling and use of taxation Business Activity Statements. The Tribunal agrees that the conduct involved far more than what would ordinarily be expected of a desperate drug addict looking to fund his drug habit. In view of the apparent period in which he used drugs, whether that use included an addiction to cocaine or not, and the short period in which he lived in the community after he was first incarcerated in March 2002, the Tribunal is not satisfied, on the evidence before it that the applicant is now drug-free and not at risk of further offending.
48. Mr Prince submitted that, notwithstanding his claim that he had dealt with his addiction to cocaine, the applicant’s dishonesty had continued. Mr Prince referred the Tribunal to the submission that the applicant had sent to the respondent, described by the applicant as “DIMIA”, dated 1 April 2004, in which he set out in some considerable detail the reasons why his visa should not be cancelled (Exhibit R1 at pages 94-112). The submission made numerous references to his then wife, Carolyn Brough and her family and the future the applicant saw for them. At page 95 of the exhibit, he said:
“I have been a permanent and regular fixture in the lives of 3 children; two of them are the younger siblings of my wife. The other, a young child of a close friend I have known for years. I am proud to be involved in their lives and hope to continue to be a positive factor for them, as they grow older.”
Then, in referring to Ms Brough and a close friend, he said (at page 99 of the exhibit):
“These two people will be the pillars of my ongoing rehabilitation, with my wife being the main pillar. Her support over the past two years has given new meaning and added value to the term ‘for better or worse’.”
The applicant’s evidence in relation to the DIMIA submission was that he was unaware his wife had filed for divorce, over a week before, and that he had only received notice of that filing on 29 March 2004, which was after he had sent the submission, days before and pre-dated 1 April 2004. The Tribunal does not accept the applicant’s evidence on this point. Even if his evidence as to the timing of the submission was accepted, the applicant did not resile from the statements he had made to DIMIA in the submission and he made no attempt to correct them. When he was asked by the Tribunal why he did not do so after he had received notice of his wife’s divorce proceedings, he said it was because he was “fighting to keep the marriage”. There was nothing before the Tribunal to support this and the applicant’s evidence is again not accepted. Furthermore, Mr Prince referred to page 13 of the applicant’s DIMIA submission, at paragraph 2.13 (Exhibit R1 at page 106), where he said:
“I am a regular and stable fixture in the lives of three children under the age of eighteen.
·Michael Brough aged 13 years.
·Catherine Brough aged 16 years.
·Jacob Fraser aged 12 years.
I am not blood related to any of these children (I am related to the Brough children by marriage). However, I have developed a close relationship with all of them. In the case of Jacob, it is both an emotional and financial sense.
Over the past 4 years, Jacob has taken to me in such a way that separation, particularly now in his teenage years, and after having been involved in his life for so long, would be a devastating blow to him and me.”
49. The statements above in relation to Ms Fraser’s son, Jacob, are inconsistent and misleading, especially when they were made at a time the applicant said he was fighting to keep alive his marriage to Ms Brough. Moreover, Ms Fraser’s evidence was that such statements by the applicant relating to Jacob were not true. Mr Prince referred to the applicant’s statement of facts, issues and contentions where, at paragraph 241, he said that he would talk to Ms Fraser and Jacob, at least twice a day, consistently between 2002 and 2004. According to Ms Fraser’s evidence, that was simply not the case. The Tribunal does not accept that the applicant had established a close relationship with Jacob, and the Tribunal accepts the evidence of Ms Fraser on this point. It was her evidence that, in the period from about November 2004 to February 2005, she started to reflect on what the applicant had told her over the years. She went back to the documents and other materials that she had been keeping in relation to her communications with the applicant. She realised that what she had been saying about the applicant in support of his immigration case was not true and she determined to correct the matter. The Tribunal accepts the reasons she gave, when she wrote to the respondent’s Ms Heidi Smith on 29 March 2005, about wanting to withdraw the statements she had made in support of the applicant in her statutory declaration made on 23 September 2004.
50. The Tribunal is satisfied that, where a conflict in the evidence existed between that of Ms Fraser and the applicant, the Tribunal prefers the evidence of Ms Fraser. It does so in relation to Ms Fraser’s evidence about the reason for inviting the applicant to have Christmas dinner in 2004 at the family home and in relation to the domestic violence that she said occurred at the applicant’s hands. She did not proceed with the domestic violence order, but she has never withdrawn the allegations. The Tribunal has no reason to believe that the photograph that was tendered on behalf of Ms Fraser in relation to the applicant’s physical conduct towards her (Exhibit R7) was not a true reflection of what she said had occurred in the argument with the applicant in November 2004. Again, the Tribunal accepts Ms Fraser’s evidence as to why she delayed her application for a domestic violence order against the applicant in February 2005.
51. Mr Prince submitted that the applicant’s deliberate dishonesty in relation to the structuring and preparation of his submission to DIMIA or his dishonesty by omission in not seeking to correct the record when he discovered that he was to be divorced from his wife, was consistent with the evidence relating to his correspondence with Ms Fraser during that period when there were issues raised about the applicant’s migration status. Mr Prince referred to the letter sent by the applicant to Ms Fraser, apparently on or about 24 March 2004, when he asked her to provide a letter for him to use in connection with his submission to DIMIA, and he set out suggested wording in his letter to Ms Fraser (Exhibit R1 at page 187). In the letter, the applicant said:
“The Dept will assess my character and in doing so look at the community ties I have. One main BIG point is whether or not I have any kids or a close ongoing relationship with any kids. To convey to them that I have a cultural tie to a child under 18 will go far in stating my case.”
52. As to the issue of Jedi’s birth and the applicant’s visits with him, the applicant said that he did not learn of his son’s birth for over a week afterwards. Ms Fraser’s evidence was that she had made several attempts to contact him, on the phone number she had for him and by emails and text messages, to inform the applicant of the birth. She did not receive a reply to her communications until 28 or 29 July 2005. The Tribunal notes that Ms Fraser’s initial emails to the applicant did not refer to the birth, however, the Tribunal does not draw any adverse conclusions from this. Arrangements were made between Ms Fraser and the applicant, initially to visit Jedi at her home. The Tribunal accepts the reasons Ms Fraser gave for changing these arrangements, so that later visits were to take place at the Building Bridges Contact Centre. The Tribunal does not accept that, in changing the visitation arrangements, Ms Fraser intended to deny the applicant the right to see his son.
53. Having regard to all of the matters referred to above, the Tribunal does not accept the applicant’s submission that the risk of recidivism is small. It finds that there is a significant risk of recidivism.
General Deterrence The third factor relevant to an assessment of the level of risk to the community is general deterrence, that is, whether the cancellation of the visa may prevent or discourage offences by other persons (paragraph 2.5(c) of the Direction). In the Tribunal’s view, it is unlikely that wide publicity would be given in the media to the cancellation of the visa in the present case. If the cancellation of the applicant’s visa is confirmed, that will presumably become known to friends and acquaintances of the applicant and perhaps to some of the officers of the organisations affected by his conduct. This may provide some deterrence to others. Moreover, visa cancellation would enable the respondent to point to a possible precedent in other similar cases. Indeed, it could give some publicity to the precedent in order to reinforce the view which the Government has about the seriousness of crimes involving serious fraudulent conduct of the kind that existed in the present case. In his submissions, the applicant has referred to ReSay and Minister for Immigration and Multicultural Affairs (2006) 91 ALD 212, where Senior Member Handley said at [42]:
“42. The language of this Part is couched in very broad terms. The issue of ‘general deterrence’ of itself is by no means clear and operates in my view more in the nature of expectation rather than certainty. Deterrence also assumes that knowledge of the matters under consideration and decisions of Courts and Tribunals will find its way into the general public. In Re Peters and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 585, the Tribunal was satisfied that ‘in this matter the general deterrent effect is not significant, and there is no suggestion that the applicant was involved in a criminal scheme’ yet, on balance, ‘this consideration points in favour of cancellation of the visa’. The Tribunal in Re Otene and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 142 posed the question ‘Does the news of what happens to a person travel through the community . . .’ and concluded, in the absence of an answer, that the proposition was speculative. I respectfully agree.”
However, the Tribunal notes the reference by Deputy President Walker in Re Huynh and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 938 at [33] to recent criminology and social science research which indicates that general deterrence is a more important factor in influencing crime rates than was sometimes previously believed. In the final analysis, there is no evidence that the general deterrence effect would be significant if the cancellation of the applicant’s visa was confirmed, and the Tribunal attaches little weight to this aspect.
54. Having had regard to all of the factors relevant to the first primary consideration, the Tribunal considers that, on balance, this consideration would indicate that the visa should be cancelled.
Second Primary Consideration – Expectations of the Australian Community
55. The second primary consideration appears from its terms to require the decision-maker to formulate the expectations of the Australian community both objectively, and also with reference to the particular person involved in the relevant determination. No doubt, there would be a range of views in the community on the circumstances in which a visa for a non-citizen should be granted or cancelled. In Re Afoa and Minister for Immigration and Multicultural Affairs [1999] AATA 82, this was recognised by Deputy President Forrest when he made the following comments in relation to how community expectations should be assessed in deportation cases.
“Community expectation will of course mean different things to different people. I think the phrase ‘community expectation’ is meant to reflect the view of the community as represented by the objective bystander. It is not an assessment reflecting his or her social or personal values simply in response to the question, Do you think non-citizens who commit serious crimes of violence should be deported? but instead requires a dispassionate response when all of the relevant facts and circumstances have been examined.”
The Tribunal also takes into account Deputy President McMahon’s comment in Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at [34], that there would also be a general expectation in the community that the Act will be administered fairly and humanely.
56. The Australian community can reasonably expect any non-citizens to be law-abiding citizens. Mr Prince drew attention to the serious criminal conduct in which the applicant had engaged. He had shown scant regard to Australian laws. He had committed a large fraud against the Commonwealth and against the Australian community. Mr Prince submitted that that same Australian community would expect to be protected against offending of the kind committed by the applicant. In response to those submissions, the applicant submitted that he had paid the price for his criminal conduct and should not be made to pay again. While in custody, he had undertaken programs of rehabilitation and had applied to take programs and courses to better his employment prospects. Moreover, when he was in the community, although the period involved was only about one year, he had exhibited no behaviour that would be viewed by the Australian community as undesirable.
57. The Tribunal accepts that the Australian community would be concerned about the effect of the cancellation of the visa on the relationship between the applicant and his son, Jedi. This issue will be considered further below. As to the other matters raised by the applicant, the Tribunal refers to its earlier comments in relation to the serious, protracted and deliberate pattern of fraudulent conduct, and to the sentencing Judge’s assessment that the conduct was serious and sophisticated. Further, and as has already been adverted to, the applicant committed a large fraud against the revenue of the Commonwealth, and his conduct accordingly amounted to a fraud against the Australian community, for whose benefit public revenue is raised and expended. Although the applicant submitted that he had paid the price for his criminal conduct and should not have to pay again, the Tribunal notes that he had been in the Australian community for four years before he started offending, but then committed substantial and very serious offences for almost a corresponding four year period. In the Tribunal’s view, this factor would weigh heavily on the minds of the Australian community. The applicant sought to gain support for his case from the Ombudsman’s own motion report on the operation of s 501 to its impact on long-term permanent residents of Australia, and to the Senate Legal and Constitutional References Committee report into the administration and operation of the Act. The Tribunal gains little aid from these reports on the issues that need to be addressed in the applicant’s case. As has already been adverted to, the Tribunal is bound to apply the Direction as it presently stands.
58. The Tribunal considers that the Australian community would be very concerned that a non-citizen should engage in the fraudulent offending of the kind and extent committed by the applicant. In all of the circumstances of the present matter, the Tribunal considers that the Australian community would, on balance, favour the cancellation of the visa.
Third Primary Consideration – Best Interests of a Child or Children
59. Paragraph 2.15 of the Direction states that, in general terms, the best interests of a child of the non-citizen will be served by remaining with his or her parents. In assessing this consideration, decision-makers are directed by paragraph 2.16 to have regard, amongst other things, to the nature of the relationship between the child and the non-citizen (paragraph 2.16(a)), the duration of their relationship and number and length of any separations (paragraph 2.16(b)), the age and migration status of the child (paragraphs 2.16(c) and (d)), the likely effect of separation (paragraph 2.16(e)), the time the child has spent in Australia (paragraph 2.16(g)), the circumstances of the receiving country (paragraph 2.16(h)) and any language and cultural barriers that may be encountered in the probable country of future residence (paragraphs 2.16(i) and (j)).
60. In his submissions to the Tribunal, the applicant focussed on the best interests of his biological son, Jedi. At the time of the hearing, he was 16 months old. The applicant’s evidence was that he was effectively being denied access to his son and, if his visa was cancelled, there would be virtually no way in which future access or contact could be made. He said that he wanted to remain in Australia so that he could form a meaningful relationship with his son. Jedi might not experience hardship in terms of the applicant’s absence, but he might suffer hardship in the future because he would not have a parental male presence in his life. He said his son would be at a “significant deficit” if he grew up without a father. He referred to what Mr Tuddenham said and how the effects on a child of not having a father could be devastating. In addition, the applicant said that there would be no way he could have input into the future development of his son if he was removed from Australia. The applicant reminded the Tribunal that he was an African American and that he wished to share his cultural background with his son. He referred to Rocca v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 87 ALD 529 and what was said by Gray J at paragraph 33 of that decision. However, all the comments made by Gray J at paragraphs 33-36 are worth repeating here:
“33 In general terms, it is true to say that a consideration of the best interests of children involves far more than a consideration of hardship that would be caused to those children by a particular event, such as the absence of a parent or grandparent. In most cases, a proper consideration of the best interests of children will involve attempting to form opinions about the likely future development of those children, and the effect that the presence, or absence, of the particular parent or grandparent will be likely to have on that development. This might involve the consideration of measurable matters, such as living conditions, but will also require that regard be paid to emotional needs, and to the need for guidance and example. Such matters can only be considered properly in the context of an awareness of the identity of other persons who do, and might be expected to continue to, provide for various needs of the children, and their interaction with the parent or grandparent the withdrawal of whose presence is being considered. As the High Court of Australia pointed out in M v M (1988) 166 CLR 69 at 77:
‘[I]n deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare.’
34 The considerations that the Family Court of Australia is required to take into account are now set out in s 68F of the Family Law Act 1975 (Cth). They provide a good guide to the magnitude of the task.
35 This is not to say that the consideration of the impact of withdrawal of a parent or grandparent on the interests of children can, or should be, confined to the withdrawal of the positive effects of the person’s presence. It is also necessary to consider any negative effects on the interests of children of the continued presence of the parent or grandparent concerned. It is easy to envisage a case in which the likelihood of future criminal behaviour or other undesirable conduct is so great that the best interests of a child will be better served by removal of the child from contact with the parent or grandparent concerned.
36 Nor can the question of the best interests of children be decided on the basis of likely future developments without regard to what has actually occurred already. It is legitimate, if not essential, in considering the best interests of children, for a decision-maker to take into account what positive and negative effects the presence of the parent or grandparent concerned has had in the lives of the children.”
61. The applicant referred to the fact that Ms Fraser had consented to the contact orders for Jedi made in the Federal Magistrates Court. The Tribunal draws no adverse inferences from the fact that Ms Fraser so consented. Nor does the Tribunal accept the applicant’s submission that, by granting the contact orders by consent, the Court was articulating that the best interests of the child would be served by allowing him to have contact with his father. The applicant also referred, more generally, to the evidence of Mr Tuddenham and Mr Courtney. In relation to the evidence of Mr Tuddenham, the Tribunal accepts the submission made by Mr Prince. As the President of the South Australian Lone Fathers’ Association, the Tribunal takes note of what he said in his evidence. However, as to the best interests of the applicant’s son, Mr Tuddenham did not bring any formal qualification to the hearing of this matter and his views do not greatly assist the Tribunal. As to Mr Courtney’s evidence, the Tribunal found him to be a most unimpressive witness. He described himself as the only director of Tessa Corporation Pty Ltd and, when asked by Mr Prince whether he was a shareholder in the company, he was initially unsure, but eventually was able to answer in the affirmative. He described the company as a small, research and development, not for profit organisation, but in which he did not appear to have any particular role. He suggested that control of the company was largely in the hands of “fiduciaries in Europe”, but when cross-examined by Mr Prince further, it became apparent that he was unsure of the role the so-called fiduciaries played in the running of the company. Given the nature and extent of his evidence, the Tribunal is unable to accept that there is any realistic offer of employment of the applicant by Tessa Corporation. Finally, the applicant made reference to amendments to the Family Law Act 1975 which, he argued, were relevant to his case. The Tribunal does not accept that these amendments are of assistance to the applicant, and refers again to the comments of Gray J in Rocca (supra), particularly at paragraphs 34 and 35.
62. The Tribunal reiterates its acceptance of the proposition that it is in the best interests of a child to remain with his or her parents. However, when considering the best interests of Jedi, the Tribunal also takes into account that he is only about 19 months old now, that the applicant has been separated from him since he was taken into immigration detention in October 2005, and (although the applicant would have preferred not to have had such a lengthy period of forced separation from his son) there is no established relationship between Jedi and his father at this time. The Tribunal understands and accepts that the applicant would wish to remain in Australia to develop a parental relationship with his son. However, the Tribunal cannot overlook the fact that his prospects for developing such a relationship with Jedi would be jeopardized by his estrangement from Ms Fraser. Although the relationship between Ms Fraser and the applicant displayed during the course of the hearing may not have been hostile, it was certainly strained and at times bordering on being argumentative. Given the circumstances, the Tribunal considers that the prospects of the applicant developing a close relationship with his son in the future are doubtful. As mentioned previously in these reasons, the Tribunal also considers that there is a significant risk of recidivism which, if it were to materialise, would be harmful to Jedi’s upbringing. The Tribunal finds that, for the reasons given, and in the best interests of the child, the applicant’s visa should be cancelled.
other considerations
63. The Tribunal has considered the factors set out in paragraphs 2.17 to 2.24 of the Direction. The relevant factors in those paragraphs are largely not relevant to the applicant’s situation and, in the Tribunal’s view, none of the factors would constitute a significant ground for exercising the Tribunal’s discretion in the applicant’s favour. The applicant’s immediate family all reside, as the Tribunal understands it, in the United States of America. There is no issue, therefore, relating to hardship to any immediate family members in Australia, with the exception of possible hardship to Jedi, already canvassed above. The Tribunal has referred to the applicant’s evidence relating to rehabilitation and his conduct since his incarceration. There is no suggestion that, if the applicant was returned to the United States, he would be placed in a situation where relevant rights under international obligations would be violated. The applicant does not appear to have any connection in Australia, beyond perhaps his association with Mr Courtney. As the Tribunal is not satisfied that the relationship with Mr Courtney will give rise to any serious or ongoing offer of employment, the applicant has no ties, either to business interests or commercial interests, in Australia.
64. Although not specifically referred to in the Direction as another consideration to be taken into account, the applicant referred on several occasions during the hearing to the fact that he did not have the benefit of advice and assistance in presenting his case, nor the legal background of the respondent’s representative. In addressing this, the Tribunal notes that the applicant appears to have had considerable resources at his disposal. His summary of facts, issues and contentions ran to some 42 pages and comprised 522 (sometimes brief) paragraphs. The applicant was articulate and confident and displayed much experience in his delivery. The Tribunal has sympathy for his predicament, but the applicant was given every opportunity to present his case and the Tribunal does not accept that he was seriously disadvantaged.
conclusion
65. The Tribunal has had careful regard to the considerations set out in the Direction and to the evidence and submissions before it. After considering all of that material and to all relevant considerations in the Direction, the Tribunal has decided that it is appropriate to exercise the discretion under s 501(2) of the Act to cancel the applicant’s visa.
decision
66. The Tribunal affirms the decision under review.
I certify that the 66 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne
Signed: ............J Coulthard...........................................
AssociateDates of Hearing 9, 10 & 16 November 2006
Date of Decision 28 February 2007
Advocate for the Applicant Self represented
Counsel for the Respondent Mr R Prince
Solicitor for the Respondent AGS
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