Cockrell and Minister for Immigration and Multicultural and Indigenous Affairs
[2006] AATA 21
•12 January 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] aata 21
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2005/290
GENERAL ADMINISTRATIVE DIVISION ) Re MARCUS COCKRELL Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date12 January 2006
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
D G Jarvis
(Signed)
Deputy President
CATCHWORDS
IMMIGRATION – Spouse (Subclass 801) visa – discretion not 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 as to his relationship with a friend’s child – risk of recidivism – relevance and weight of correspondence where author of correspondence not called – information not provided to Minister at least two business days before hearing – best interests of infant child – decision under review affirmed.
Migration Act 1958, ss 500(6H), 500 (6J), 501(2)
Crimes Act 1914 (Cth)
Criminal Code 1899 (Qld)
Re Afoa and Minister for Immigration and Multicultural Affairs [1999] AATA 82
Re Huynh and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 938
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Re Prasad and Department of Immigration and Ethnic Affairs (1994) 35 ALD 780
Re SAAC and Minister for Immigration and Multicultural and Indigenous Affairs (2004) 85 ALD 202
Rocca v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 71
REASONS FOR DECISION
12 January 2006 Deputy President D G Jarvis 1. The applicant, Marcus Cockrell, came to Australia from the United States of America in June 1994.
2. On 1 June 2005 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs decided to cancel Mr Cockrell’s visa on the grounds that Mr Cockrell did not pass the character test under s 501 of the Migration Act 1958 (the “Act”). Mr Cockrell had been the holder of a Spouse (subclass 801) Visa. The delegate also refused to exercise the discretion pursuant to s 501(2) of the Act not to cancel the visa. Mr Cockrell has applied to this tribunal for review of the delegate’s decision.
Issue for the Tribunal
3. Mr Cockrell conceded during the hearing that he does not pass the character test under s 501 of the Act. He could not have contested this in any event, because under s 501(6)(a) of the Act, 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 twelve months or more. Mr Cockrell was sentenced to imprisonment for terms exceeding this period on 13 November 2003, as appears below.
4. However, there is a discretion under s 501(2) of the Act not to cancel a visa. The only issue before the tribunal is whether the discretion not to cancel Mr Cockrell’s visa should be exercised in his favour.
Background Evidence
5. The evidence of Mr Cockrell and much of the documentary material before the tribunal was uncontested insofar as it related to certain background facts, and the tribunal makes the following findings. However, it is appropriate to record at the outset of these reasons that the tribunal found Mr Cockrell to be an unimpressive witness. He appeared to be evasive and defensive at times. In relation to certain important issues, as indicated below, the tribunal does not accept the truth of his evidence.
6. Mr Cockrell was born on 1 July 1970 in the United States of America, and is a citizen of that country. He obtained a Bachelor of Economics from the University of Southern California. In 1994, he came to Australia to visit a friend on a Tourist (Short Stay)(subclass 670) Visa.
7. He later met one Carolyn Brough, an Australian citizen, and after a four-year relationship they were married on 6 September 1999. As a result of the marriage, Mr Cockrell obtained a Spouse (subclass 801) Visa. Mr Cockrell and Ms Brough were divorced on 25 August 2004.
8. Mr Cockrell’s mother and two sisters still reside in the United States of America. Mr Cockrell stated that he is not close to his mother or sisters, and they only communicate by telephone sporadically. His father has never been a part of his life, and he only met his father on two occasions when he was a child.
9. After arriving in Australia, Mr Cockrell resided in Sydney. He became ill and was taken to the Fairfield Hospital of Prairiewood, Sydney in May 1996. According to a discharge letter, Mr Cockrell was admitted to that hospital as a patient on 10 May 1996 and discharged on 13 May 1996. His problems on admission were said to be sore throat, fever, loss of appetite and dehydration, and his final diagnosis was tonsillitis and dehydration. He was discharged to “home”, and his medication on discharge was oral penicillin (exhibit R1, page 127).
10. When he first arrived in Australia, he still had some savings, and worked at odd jobs. Later in 1999, after he had moved to Brisbane from Sydney, he established a business entailing the spraying of concrete over bitumen surfaces, and engraving concrete surfaces. He continued to operate this business until his arrest on 27 March 2002.
11. He was transferred from gaol to a work release centre in August 2004, and soon afterwards commenced work with a Turkish restaurant, washing dishes. On 7 October 2004 he was released subject to parole conditions, and then obtained further jobs through employment agencies. These jobs included working for a polystyrene company, and a cardboard manufacturer. Later he obtained work with a company that provided proprietary technology for use in such areas as currency trading, brokerage services and internet capacity. He continued in this work until he was taken into immigration detention. He said that this company is prepared to re-employ him, depending on the outcome of these proceedings. He also tendered a letter from Career Employment Australia of Coorparoo, Queensland, confirming that that organisation would assist him to find employment or future training upon his release from detention.
12. Mr Cockrell committed a series of offences between 1998 and 2002. The offences involved the establishment and use of twenty five different aliases in order to fraudulently claim income tax credits, and opening and operating false bank and credit card accounts. The moneys obtained from the Commonwealth Government, banks and other institutions totalled $644,390.65. On 13 November 2003 the Queensland District Court convicted Mr Cockrell of the following offences, to which he had pleaded guilty:
(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.
13. He 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.
14. The convictions referred to in paragraph 12 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 12(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 12(d) and (e) above. As already mentioned, these six offences resulted in sentences in each case of one and a half years’ imprisonment, so that Mr Cockrell fails the character test in s 501 of the Act, irrespective of the outcome of his further appeals.
15. Mr Cockrell’s release into the community followed an assessment by the Queensland Community Corrections Board (the “Board”) that he was eligible for parole. He was assessed by the Board as being a low risk.
16. Mr Cockrell had commenced a friendship with a Ms Renea Fraser prior to his arrest. After his release from prison they entered into a relationship which has since ended, but resulted in Mr Cockrell’s son, Jedidiah Fraser (Jedi), who was born on 20 July 2005. Ms Fraser has two older sons, Jhaycob (who is also referred to in these reasons and in the exhibits as “Jacob”) and Izaac, from a different relationship.
Legislation
17. Subsection 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 subsection 501(7)(c), this is the case where (relevantly) a person has been sentenced to a term of imprisonment of twelve months or more.
18. Subsection 501(2) provides as follows:
“(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.”
Consideration of Ministerial Direction No. 21
19. By virtue of s 499(2A) of the Act, in considering whether to exercise the discretion not to cancel the visa, the tribunal must take into account, as a guide to making its decision, Ministerial Direction No. 21 (the “Direction”). This is a direction 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. The Direction provides in paragraph 2.2 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 (paragraph 2.2 of the Direction). The tribunal will address the relevant considerations in the Direction in turn.
20. 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.
First Primary Consideration - Protection of the Australian Community
21. In reference to 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.
22. Seriousness and Nature of the Conduct The first of these three factors is the seriousness and nature of the conduct (paragraph 2.5(a) of the Direction). As to this, paragraph 2.6 includes a detailed list of examples of offences which are considered by the Government to be very serious. The examples include 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 disruption caused to individuals, business and Government.” Mr Cockrell’s convictions on 13 November 2003 for various counts involving fraudulent conduct as detailed above constituted “white collar” crimes.
23. On his conviction for the offences the sentencing Judge summarised the offending as follows:
“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, page 89).
The sentencing Judge went on to decline to make a recognisance release order pursuant to s 19A(c)(4) of the Crimes Act “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 Mr Cockrell constitute offences regarded by the Government as very serious.
24. It is also relevant to consider the sentence imposed as an indication of the seriousness of the offender’s conduct (paragraph 2.7 of the Direction), the extent of the person’s criminal record, including the number and nature of offences, the time between offences and the time elapsed since the most recent offence (paragraph 2.7(a)), and the repugnance of the crimes (paragraph 2.7(b)), and to take into account any relevant mitigating factors (paragraph 2.8(a)).
25. Whilst the four convictions against the Queensland Criminal Code were set aside on appeal, Mr Cockrell admitted that he had engaged in the offending conduct (as well as the conduct which gave rise to the eight convictions for obtaining or attempting to obtain a financial advantage, which are the subject of his pending appeal). These twelve convictions resulted in substantial penalties, including significant non-parole periods.
26. In her sentencing remarks the District Court Judge made reference to mitigating factors as follows.
“You have pleaded guilty and that, of course, is particularly relevant and you are entitled to recognition of that.
I am told the offences were committed in order to fund a serious cocaine addiction. You have obtained whilst in custody for 596 days, significant and continuing drug treatment and, clearly, that treatment will need to continue.
You came to Australia in 1995 and you have an Australian wife, and you wish to remain. I am told, and I accept, that your offences and the consequent appearances in Courts have been particularly stressful for your wife.
The Court of Appeal of Queensland has for some years been saying in clear terms that matters of this nature must attract significant sentences.
…
From the material which has been tendered it is clear that these offences are solely the result of drug addiction and it would seem that drug addiction and criminal offences are out of character with your family background and are a great shock to your wife. You have no prior criminal offences and that, of course, is also relevant. … .” (exhibit R1, pages 89 - 90).
27. In his evidence in the present proceedings, Mr Cockrell said that after being discharged from the Fairfield Hospital in May 1996 he was in so much pain that he needed prescription medication, but the painkillers and penicillin did not work and he resorted to using cocaine. He said that this was the start of his drug addiction and that it got progressively worse, as did his crimes.
28. The tribunal notes that Mr Cockrell had no prior convictions before the commencement of his offending conduct in 1998, and accepts that he had a good upbringing in the United States. He attained a Bachelor Degree in Economics from the University of Southern California. He expressed his remorse for his criminal conduct. It is clear from various documents included in exhibit R1 that he participated in drug rehabilitation programs during his incarceration. He also undertook various other courses during his incarceration, including an anger management course and a course in relapse prevention and cognitive thinking skills. It also appears from various reports provided by Australasian Correctional Management Pty Ltd that during his incarceration he had a good attitude towards employment, other inmates and staff, and that his behaviour generally was good.
29. In this matter all of the applicant’s convictions were recorded on the same date. In this respect the applicant’s situation differs from many matters that come before this tribunal, where offences are committed and are the subject of convictions, and further separate offences and convictions are recorded at later dates. However, it appears from the material before the tribunal that in this matter the offending took place over a considerable period of time, and quite frequently. Mr Cockrell has not been charged with any further crimes since his release from gaol. It is now some time since Mr Cockrell last offended, but he has of course been either in gaol or in immigration detention for the majority of the time since his last offence. The tribunal also notes that while the offending was fraudulent, it did not constitute fraud against defenceless persons of the kind referred to in paragraph 2.7(b) of the Direction.
30. Whilst the tribunal has taken into account the mitigating factors referred to above, including in particular the drug addiction, as well as the other matters referred to in paragraphs 2.6 to 2.8 of the Direction, the tribunal regards the offending and criminal conduct as serious. As mentioned above, the offences are of the kind regarded by the Government as very serious. The number of offences is significant, and they were committed over a lengthy period. The conduct was blatantly fraudulent and affected a number of organisations as well as the Commonwealth. Very significant monetary amounts were involved.
31. Likelihood of Repetition of the Conduct, and Risk of Recidivism The second of the three factors referred to in paragraph 2.5 of the Direction is the likelihood that the conduct may be repeated, including any risk of recidivism (paragraph 2.5(b)). According to 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.
32. The tribunal has referred above to Mr Cockrell’s previous general conduct and criminal history. Mr Cockrell stated that he has overcome his drug addiction, which he said caused him to commit the crimes concerned. He also referred to his efforts to obtain employment, and to pursue further studies. He cited his family responsibilities, in particular to his baby son, Jedi, as motivators that would deter him from crime.
33. Mr Cockrell also placed reliance on the fact that the Queensland Community Corrections Board had, on assessing his ability to be released from gaol, given him a “low risk” rating. He pointed out that the Board was comprised of community members, and submitted that they were better placed than this tribunal to perform a risk assessment to the community. He submitted that the delegate of the respondent should have taken into account the Board’s views, rather than independently assessing him as a medium risk. He further drew attention to the Ministerial Guidelines issued to the Board, which are set out in a document dated 14 March 2003 included behind tab 6 in exhibit A1. The tribunal notes that the first paragraph of the Guidelines requires the Board to give the highest priority to the safety of the community. Other factors in the Guidelines include the level of risk that the prisoner in question may pose to the community, the prisoner’s past offences and any pattern of offending, the possibility of the prisoner committing further offences, and the successful completion of programs of rehabilitation.
34. Whilst conceding that it has been over three and a half years since Mr Cockrell last offended, counsel for the respondent, Mr Prince, pointed out that Mr Cockrell had either been in gaol or in immigration detention for all but a little over one of those years. The tribunal agrees that that consideration diminishes the weight which might otherwise be attached to the absence of offending during the above period. The tribunal accepts that Mr Cockrell participated in the various drug rehabilitation programs referred to in exhibit R1, and that he did not use drugs during his incarceration. However, the tribunal notes that he had a considerable incentive not to use drugs then, having regard to his eligibility for early parole. In view of the apparent duration of his addiction, the comparatively short period in which he has lived in the community since he was first incarcerated in March 2002 and the tribunal’s concerns regarding the credibility of Mr Cockrell’s evidence, the tribunal is not satisfied that Mr Cockrell has overcome his addiction to drugs.
35. In the respondent’s Statement of Facts, Issues and Contentions, the respondent noted that residents of Australia routinely provide information to regulatory authorities to process applications for permissions, licences or benefits. The respondent submitted that the applicant had demonstrated a willingness to provide false information and forged documentation to secure personal benefits, and that this was indicative of a propensity on the part of the applicant to provide false or misleading information in order to achieve outcomes he sought when otherwise not entitled. Accordingly, the respondent submitted that the tribunal should take into account the risk that conduct of this kind might be repeated in the future. The tribunal accepts that there is force in these submissions.
36. Counsel for the respondent further submitted that whilst Mr Cockrell had not been convicted of any crimes since the time when he was incarcerated, Mr Cockrell had engaged in providing misleading information to the respondent, and this would constitute an offence against s 234 of the Migration Act. Mr Prince drew attention to paragraph 2.6(c) of the Direction, which includes as an example of offences considered by the Government to be very serious the making of a false or misleading statement in connection with entry or stay in Australia.
37. In support of his submission, Mr Prince referred to Re Prasad and Department of Immigration and Ethnic Affairs (1994) 35 ALD 780, where the tribunal referred to decisions that had emphasised the importance of the observance of truth when non-citizens deal with officials in migration matters, especially when the truth is known only to the person making the relevant statement. Counsel also referred to the comments of Deputy President McMahon in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 at 155:
“The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia.”
The tribunal accepts that the above comment applies equally to persons seeking to remain in Australia.
38. The parties referred to a number of emails passing between Mr Cockrell, his former wife Ms Brough, his former de facto partner Ms Fraser, and the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”), as well as emails or letters provided by Ms Brough and Ms Fraser prior to Mr Cockrell being sentenced by the Queensland District Court. The tribunal notes that earlier emails from Ms Brough and Ms Fraser were very supportive of Mr Cockrell, but later both women withdrew their support and referred to Mr Cockrell in damning terms.
39. As far as Ms Brough is concerned, Mr Prince relied upon a letter from her to DIMIA dated 19 July 2004 which included the following statements.
“He (Marcus) informed me that it would help his case if it appeared that he had a supportive loving wife. He also expressed his concerns in regards to immigration. …
He would beg me to ask the children (my siblings) to write to him. My sisters and brothers had no desire to write to Marcus. I would have to plead with them to write to him because I knew how important it was to him. My brothers and sisters have included letters though do not want Marcus to read their actual letters. They have however given permission for the content to be relayed to Marcus.
Marcus knew I did not want to continue the relationship after finding out numerous things about him after he was arrested. …
During 2002, I knew I did not want to continue a relationship with Marcus and expressed this to him during our visits. …
Marcus was simply using me to stay in the country. …
Marcus knows that having a relationship with me may entitle him to stay in the country. This is why he has tried to maintain contact and has begged me to write him love letters.
Marcus’ sole desire has always been to live in Australia. He will do anything, use anybody and say anything that will keep him in this country. He is cunning, deceitful and dishonest. …” (exhibit R1, pages 160 – 163).
40. Mr Prince also referred to a memo dated 29 March 2005 from Ms Fraser to an officer of DIMIA, in which Ms Fraser made the following statements.
“Marcus wrote to me (Oct 2003) whilst in prison and asked me desperately for a character reference needed to assist him with his immigration matter. You would have received a reference (a copy will follow). I would like to WITHDRAW this reference and perhaps any other material Marcus may have forwarded to your office with my name on it. My main concern is that I had found a copy of a “mocked up agreement” that Marcus had sent to me whilst he was in prison in May 2004 asking me to fill in the gaps and send back to him. This agreement was never honored and was simply for his own benefit (you will understand when you read the letter Marcus had written with the attached child agreement the (sic) he had sent me). Marcus had only ever met my son once, when he was 7 years old for about 2 minutes and yet he was asking me to write up that he has a close tie with, which my son only knew at that time as a stranger. It’s fairly obviously this man would fabricate anything and manipulates anyone to do anything to assist him with his immigration case. My son, Jhaycob who is now 13 years old can vouch for himself that he barely remembers who Marcus is and only really got to know him upon his release, like I had promised on my original reference I offered Marcus all the support I could upon his release from prison late last year and unfortunately this has been the biggest mistake I have ever made, we still continue to suffer the repercussions of the consequences of that decision for during this time we unfortunately got to witness firsthand Marcus Cockrell’s true colors of who and what Marcus Cockrell is all about and in no way want anything to do with, or wish to be supportive or will associate with his manipulation, and continual lies and fabrications. He used and abused us in this short time and after he got what he needed he disposed of us and has now moved on to his next victim. …
We would appreciate you WITHDRAW any references or material written on my behalf as soon as possible.” (exhibit R1, page 186)
41. By a letter dated 8 March 2004, DIMIA advised Mr Cockrell that it had come to DIMIA’s attention that his visa might be liable to cancellation because he did not pass the character test, and provided him with an opportunity to comment, and to address the topics referred to in the Direction, a copy of which was enclosed. Mr Cockrell provided detailed submissions to DIMIA under cover of a letter dated 1 April 2004. He referred to the support of his wife, and enclosed statements or letters of support from his then wife and his then close friend, Ms Fraser. These included copies of letters of support from Ms Fraser to DIMIA dated 22 January 2004 and 28 March 2004. Ms Fraser apparently also sent to DIMIA a further letter of support dated 25 June 2004.
42. In his submission to DIMIA of 1 April 2004, Mr Cockrell also made particular reference to his relationship with three children, namely Michael Brough aged thirteen years and Catherine Brough aged sixteen years, who were the younger siblings of his then wife, and Jhaycob Fraser, then aged twelve years, the son of his friend Ms Fraser. He said that he had been a “permanent and regular fixture” in their lives (exhibit R1, page 95), and later in his submission he said that he had developed a close relationship with them. His comments in relation to Jacob included the following:
“Since I first met him five years ago, I saw a very real need to be a presence in his life and provide him with some necessary guidance from a male perspective, a perspective that I had to learn and am still learning. 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.” (exhibit R1, page 106)
43. Mr Cockrell now understands and accepts that he does not have the support of his former wife or her siblings, and no longer relies on his relationship with them in support of his application to this tribunal. He is also now aware that prior to when he sent his submission of 1 April 2004 to DIMIA, his former wife had instituted divorce proceedings. However, Mr Cockrell gave evidence that he was not aware of this when he sent his submissions to DIMIA on 1 April 2004, and on the contrary, as at that date, believed he still had his wife’s support, based on an email from her dated 19 November 2003 (exhibit A1, page 136), in which she referred to her intention to visit him in gaol and to write again soon.
44. Whilst in her subsequent letter to DIMIA dated 19 April 2004 Ms Brough said that she had expressed to him during 2002 that she did not want to continue their relationship, other communications from Ms Brough were inconsistent with that assertion. Ms Brough was not called to give evidence in the proceedings before the tribunal. Although the tribunal has a wide discretion under s 33 of the Administrative Appeals Tribunal Act 1975 (Cth) to admit documents in evidence, the tribunal considers that generally it is unsafe to attach weight to written statements from witnesses where those statements are inconsistent with the sworn evidence of witnesses who appear before the tribunal in person. That general principle has less force where such statements are supported by uncontested contemporaneous documents or in a case such as the present, where the sworn evidence is provided by a witness whose credibility is dubious. However, Ms Brough appears to have conveyed conflicting messages in her communications to Mr Cockrell. Because she was not called there was no opportunity for Ms Brough to be cross-examined on any aspects of her above letter or other communications to Mr Cockrell. In all of the circumstances, the tribunal rejects any suggestion that Mr Cockrell misled DIMIA in his submission of 1 April 2004 insofar as he referred to having the support of his then wife.
45. The position regarding the relationship with the three children is, however, different. In a letter from Mr Cockrell to Ms Brough of 24 November 2003, he referred to having received a “please explain” letter from DIMIA, and said in part:
“I will fight any adverse ruling by the dept and am currently seeking legal advice on ways and means of fighting … I’m in for a dog fight, but the good thing is that I have numerous precedants (sic) on my side. This creates a situation in which I need to talk to you even more in regards to planning strategy and getting the necessary paperwork together.” (exhibit R1, page 169).
46. By what was apparently a later letter to his then friend Ms Fraser, Mr Cockrell asked Ms Fraser 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. This wording conveys the impression that he and Jacob had a close and long relationship. His letter continued:
“This is the part of the act that I am referring to in relation to what was written above:
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:
The dept will assess my character and in so doing look at the community ties I have. One main BIG point is whether or not I have kids or a close 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.
You get my drift? …” (exhibit R1, page 187)
47. It appears that in the latter period of his incarceration, Mr Cockrell’s relationship with Ms Fraser became closer, and that he commenced to provide some financial support to Jacob Fraser. He referred to this provision of financial assistance in his submission to DIMIA of 1 April 2004. Further, it appears that in May 2004 he prepared a “child agreement” which made provision for him to make periodic payments to Ms Fraser for the care and support of her two sons, initially of about $30 per month, subject to his income and resources (see exhibit R1, page 188). It appears that this agreement was never executed by either party, but the child agreement was sent to DIMIA by Ms Fraser with her letter of 25 June 2004. The tribunal thinks it likely that this document was intended to support Mr Cockrell’s submission to DIMIA, and does not accept his assertion in cross-examination that it was unrelated to his matter before DIMIA.
48. In cross-examination, Mr Cockrell also admitted that he had only seen Jacob four or five times in total. He said that as a result of becoming closer to Ms Fraser when he was in gaol he became a lot a closer to Jacob, and would have talked to him on the phone whilst he was in gaol once or twice a day.
49. The tribunal does not accept that Mr Cockrell had established a close relationship with Jacob. It rejects Mr Cockrell’s evidence to that effect. The tribunal is satisfied that he sought to mislead DIMIA to the extent that he referred in communications to DIMIA to a close relationship with Jacob. The tribunal finds that he falsely referred to this asserted close relationship in an endeavour to bolster his submission to DIMIA in relation to the possible cancellation of his visa.
50. In his submission of 1 April 2004, Mr Cockrell emphasised that he proposed to make restitution after he had been released from gaol and was in a position to do so. His evidence as to his employment with the technology company suggested that for a number of months before he was put into immigration detention, he would have been in a position to make arrangements for restitution. However he made no reference in his evidence to having entered into any arrangement to make restitution, either with the Commonwealth or with any of the institutions which he defrauded.
51. Having regard to all of the matters referred to above, including the applicant’s more recent conduct in connection with his submissions to DIMIA, the tribunal does not accept Mr Cockrell’s submission that the risk of recidivism is small. It finds that there is an appreciable risk of recidivism.
52. General Deterrence The third of the three factors 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 course, any deterrence would be affected by the publicity given to any cancellation of the visa. In the tribunal’s experience, it is unusual for wide publicity to be given in the media to the outcome of proceedings of this sort.
53. In the present matter, 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 the applicant’s conduct, and this may provide some deterrence to other persons. Further, the fact of cancellation would enable DIMIA to point to an established precedent demonstrating that repeat fraudulent conduct of the kind in question in this matter will deprive non-citizens of the opportunity to continue to reside in this country. In this regard, 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.
54. This consideration weighs in favour of confirming the cancellation of the visa, but in the absence of evidence that that result would have a significant general deterrent effect, the tribunal attaches little weight to this aspect.
55. Having had regard to all three of the factors relevant to the first primary consideration, the tribunal considers that this consideration would indicate that the visa should be cancelled.
Second Primary Consideration – Expectations of the Australian Community
56. This 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. There would undoubtedly be a range of views in the community on the circumstances in which a visa for a non-citizen should be granted or cancelled. This was recognised by Deputy President Forrest in Re Afoa and Minister for Immigration and Multicultural Affairs [1999] AATA 82 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.
57. Mr Cockrell pointed out that he had completed drug rehabilitation courses while in gaol, and submitted that the cocaine addiction was the cause of his offending, and that the cause had now been removed. He further submitted that the Australian community would not want to separate a father from his child, and that the community would be willing to give him a second chance.
58. 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 infant son, but will further consider this issue below. As to the other matters raised by Mr Cockrell, 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, 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.
59. 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
60. Paragraph 2.15 states that, in general terms, the best interests of a child of the non-resident will be served by remaining with his or her parents. When 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 (2.16(a)); the duration of their relationship and number and length of any separations (2.16(b)); the age and migration status of the child (2.16(c) and (d)); the likely effect of separation (2.16(e)); the time the child has spent in Australia (2.16(g)); the circumstances of the receiving country (2.16(h)); and any language and cultural barriers that may be encountered in the probable country of future residence (2.16(i) and (j)).
61. Mr Cockrell told the tribunal that he was no longer basing his application on his relationship with Michael and Catherine Brough, or Jhaycob Fraser. Instead, he was focussing on the best interests of his biological son, Jedi.
62. Jedi was born prematurely on 20 July 2005, and required specialist medical care. At the time of the hearing he was four and a half months old. Mr Cockrell is currently estranged from Jedi’s mother, Ms Fraser, and does not have access to his son. He faxed an application to the Family Court seeking an interim contact order, but said he was unable to complete the lodgement process after he was taken into immigration detention. In February 2005 Ms Fraser applied for a domestic violence order against Mr Cockrell, but later withdrew her application. Mr Cockrell maintained that there was no basis for this application.
63. Mr Cockrell said that he wants to remain in Australia so that he can form a meaningful bond with his son. He said that he grew up without a father, and he does not want his son to have to experience that. He said that if he were sent back to the United States of America, it would realistically be seven to ten years before Jedi would be able to visit him, and that would be dependent on Ms Fraser’s willingness to allow her son to visit his father. He submitted that even if Jedi were allowed to visit him, they would effectively then be strangers.
64. Mr Cockrell also gave evidence that he wanted to be a responsible father, and to provide child support. He said that due to his current circumstances, his ability to pay child support was extremely limited, but that if he were allowed to stay in Australia he would find gainful employment and provide for his son’s financial needs. He reiterated that he expected to be able to resume his former employment when he is released from detention.
65. The tribunal has also taken into account the information provided by the applicant prior to the hearing as to the importance of the place of a father in the development and upbringing of children. Further, (and whilst this aspect was not referred to specifically until it was raised in correspondence from Mr Cockrell subsequent to the hearing) the tribunal also records that Mr Cockrell is an African American, and that as Jedi’s father, he would be in a position, as Jedi gets older, to enable him to understand and appreciate his culture and to provide him with information as to his forebears on his father’s side.
66. The tribunal accepts that generally 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 Jedi is a very young infant, that the applicant has already been separated from Jedi since he was taken into immigration detention in October 2005, and (although the applicant would of course have preferred not to have had this period of forced separation from Jedi) there is no established relationship between Jedi and his father at this time. Whilst the tribunal accepts the applicant’s desires and intentions as to his future relationship with Jedi if he were to remain in Australia, the tribunal also thinks it likely that his prospects for developing a close relationship with Jedi would be jeopardised by his estrangement from Ms Fraser, and the apparently hostile nature of her attitude towards him. The tribunal considers that the prospects of the applicant developing a close relationship with Jedi in the future are doubtful. As mentioned above, the tribunal considers that there is an appreciable risk of recidivism. If this risk were to materialise, Mr Cockrell’s involvement in Jedi’s upbringing could be harmful to Jedi.
67. As to financial assistance, Mr Cockrell would be able to remit funds to Jedi from the United States, and taking into account Mr Cockrell’s educational qualifications and employment history in Australia, it seems reasonable to assume in the absence of evidence to the contrary that he would have reasonable prospects of obtaining employment in the United States.
68. Nevertheless, the tribunal finds that the best interests of the child would weigh in favour of exercising the tribunal’s discretion in favour of Mr Cockrell, although not strongly, for the reasons referred to in the two preceding paragraphs.
Other Considerations
69. The tribunal has considered the factors set out in paragraphs 2.17 to 2.24 of the Direction. The relevant factors are largely not relevant to Mr Cockrell’s situation, and in the tribunal’s view, none of the factors would constitute a significant ground for exercising the tribunal’s discretion in his favour. The tribunal makes the following specific comments in relation to the particular factors included in the above paragraphs.
(a)With the exception of his infant son, Mr Cockrell’s immediate family reside in the United States. His concreting business ceased after he was incarcerated, and there is no evidence before the tribunal that he has any business or other ties to the Australian community.
(b)He is not married and his previous de facto relationship with Ms Fraser has come to an end. There is therefore no issue relating to hardship to any immediate family members in Australia, except once again for possible hardship to Jedi, which has been discussed above.
(c)Whilst Mr Cockrell suggested that his employment prospects in the United States might be less advantageous than in Australia, he did not suggest that he would not provide financial assistance to Jedi from the United States. As mentioned above, there is no evidence that he has entered into any arrangement to repay the amounts for which he defrauded the Commonwealth and other organisations, or that if he is returned to the United States, he would seek to evade any ongoing liability arising from his fraudulent conduct.
(d)The tribunal has referred above to the evidence relating to rehabilitation and Mr Cockrell’s conduct since his incarceration.
(e)The tribunal notes that he had not been formally warned in the past by DIMIA about conduct which brought him within the visa cancellation provisions of the Act.
(f)There is no suggestion that if Mr Cockrell is returned to the United States, he would be placed in a situation where relevant rights under international obligations would be violated.
Communications with the Applicant Subsequent to the Hearing
70. At the conclusion of the hearing, the tribunal gave leave to counsel to the respondent to provide, within two days of the conclusion of the hearing, any authorities addressing the third primary consideration in the Direction, that is, the consideration relating to the best interests of the child. Counsel then referred the tribunal to Rocca v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 71, and in particular to paragraphs 33 – 43 and 57 of the judgment in that case.
71. The tribunal gave Mr Cockrell leave to make further submissions on any authorities provided by the respondent by 12 December 2005. Mr Cockrell provided comments on Rocca, which the tribunal has taken into account.
72. In addition, however, Mr Cockrell requested the opportunity to subpoena documents from the Community Corrections Board in Queensland, presumably with the intention of then tendering any documents produced. Counsel for the respondent indicated that the respondent would object to any steps being taken by Mr Cockrell to introduce new evidence at that stage of the proceedings. Counsel further referred to the prohibition in s 500(6J) of the Act on the tribunal having regard to any documents submitted in support of an application unless the relevant document was provided to the respondent at least two business days before the hearing.
73. The tribunal subsequently ascertained that neither the respondent nor DIMIA had taken steps to obtain records relating to the applicant’s incarceration, and had no documents relating to that matter other than the documents provided by Mr Cockrell with his submissions to DIMIA as to why his visa should not be cancelled. Copies of those documents were included in exhibit R1, and apparently the documents were obtained by Mr Cockrell from the Queensland Department of Correctional Services under freedom of information process. The documents included in exhibit R1 provided information relevant to his behaviour during his incarceration and to the courses he had undertaken. The tribunal has taken this information into account in reaching its decision.
74. In the circumstances, the tribunal did not think it appropriate to permit Mr Cockrell to issue a subpoena to obtain further documents from the Community Corrections Board. In addition to the information on the above documents included in exhibit R1, the tribunal has also had regard to the Ministerial Guidelines applicable to decisions of the Board, to which Mr Cockrell directed the tribunal’s attention. In reaching its decision in this matter, the tribunal, in reliance on the presumption of regularity, has assumed that the Board correctly applied its discretion under the Queensland legislation, and that it took appropriate account of the Guidelines. Nevertheless, this tribunal is of course required to exercise its own discretion under the relevant Commonwealth Act in hearing an application for review. The relevant statutory regime and the purpose and consequences of the tribunal’s decision are significantly different from the position of the Board. It is not appropriate for the tribunal to adopt the assessment made by the Board.
75. The tribunal also records that after the hearing, Mr Cockrell requested that he be assessed by a psychologist in relation to the risk of his re-offending, and that he be permitted to submit the resulting psychologist’s report to the tribunal. The tribunal advised Mr Cockrell promptly after receiving this request that it could not in any event take into account any information that might be provided as a result of any psychological assessment, because that information would not have been provided to the respondent within the time required by s 500(6H) of the Act.
76. Finally, the tribunal records that Mr Cockrell provided further lengthy submissions and information which were not confined to commenting on Rocca (supra), being the specific matter on which he had been given leave to provide post-hearing submissions. The tribunal considers that it cannot have regard to further information contained in this material except to the limited extent or circumstances referred to in Re SAAC and Minister for Immigration and Multicultural and Indigenous Affairs (2004) 85 ALD 202 at [37] and [40] to ]42]. It further considers that it cannot have regard to a further document provided by the applicant after the hearing due to the proscription imposed by s 501(6J) of the Act. However, the tribunal also records that even if the tribunal were able to take into account the further material provided by the applicant, it would not have affected the conclusion which the tribunal has reached in this matter.
Conclusion
77. The tribunal has carefully considered all of the factors set out in the Direction and the evidence and submissions before it. After considering all of that material and balancing all of the relevant considerations in the Direction, the tribunal has decided that it is not appropriate to exercise the discretion under s 501(2) of the Act in the applicant’s favour.
Decision
78. The Tribunal affirms the decision under review.
I certify that the 78 preceding paragraphs are
a true copy of the reasons for the decision herein
of Deputy President D G JarvisSigned: .....................................................................................
J MacIntyre AssociateDate/s of Hearing 6 December 2005
Date of Decision 12 January 2006
Counsel for the Applicant In person
Solicitor for the Applicant -
Counsel for the Respondent Mr R Prince
Solicitor for the Respondent Australian Government Solicitor
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