Cook and Minister for Immigration and Citizenship

[2010] AATA 970

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 970

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2010/4177

GENERAL ADMINISTRATIVE DIVISION		)
Re		JAMES COOK

Applicant

And  MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal  Senior Member Bernard J McCabe

Date 3 December 2010

Place Brisbane

Decision  The Tribunal affirms the decision under review.

..................[Sgd]............................

Senior Member

CATCHWORDS

CITIZENSHIP AND IMMIGRATION – cancellation of visa on character grounds – serious criminal record – primary considerations – applicant represents risk to Australian community – decision under review affirmed.

Migration Act 1958 (Cth)

REASONS FOR DECISION

3 December 2010  Senior Member Bernard J McCabe        

1. Mr James Cook, the applicant, is a New Zealand citizen who has resided in Australia since 1998. He has a serious criminal record, and he is presently in gaol. The Minister for Immigration and Citizenship (“the Minister”) has exercised the discretion under s 501 of the Migration Act 1958 (“the Act”) to cancel Mr Cook’s visa and remove him from Australia. Mr Cook has asked the Tribunal to review the Minister’s decision.

2.      Mr Cook was provided with a copy of the relevant parts of the respondent’s file, known as the “G” documents. He was also provided with a copy of his file maintained by the Department of Corrective Services, although I understand he did not collect and review the file. He tendered witness statements that were provided by several of his relatives. He was self-represented at the hearing.

3. It is accepted that the Minister has the discretion to cancel the visa because Mr Cook has failed the character test in s 501 as a result of his serious criminal record. I explained to Mr Cook that I am required to have regard to the Minister’s Direction (Direction No 41- Visa refusal and cancellation under s 501) which sets out a number of considerations that I must address when deciding whether or not to exercise the power to cancel the visa.

The background

4.      Mr Cook was approximately 17 years old when he arrived in Australia from New Zealand in 1998. He came to this country with his stepmother, Ms MacDonald, and a number of his siblings. His biological mother had died in a car accident and his family was estranged from his father. Mr Cook had lived with his father for about a year but the relationship was dysfunctional. Although Mr Cook did not speak about that experience at length, his sister, Ms Heke, provided details of the relationship. Her account painted a troubling picture. In any event, the family was able to arrange for Mr Cook to be extricated from the relationship and he came to this country to join Ms MacDonald, Ms Heke and other family members.

5.      Mr Cook quickly found steady employment when he arrived in Australia. He stayed with that employer for approximately a year before taking up a position with another company that lasted for three years. His work thereafter became less regular.

6.      Mr Cook said his domestic situation in the two or three years following his arrival became unstable. He had moved in with his girlfriend and they had a baby together. The relationship was troubled: Mr Cook said he was immature – he was very young – and insecure. He began drinking heavily. He argued frequently with his partner, who applied for domestic violence orders against him. The relationship failed around 2001 and he has not seen the daughter of the relationship since.

7.      Mr Cook has had several other relationships with women that ended badly. There were a number of reports of rows and domestic violence. Mr Cook agreed he effectively kidnapped one of his partner’s children when she was attempting to leave him. He says all of this occurred because of his immaturity and insecurity – and because of his drinking.

8.      I was provided with information about Mr Cook’s criminal record. There are a number of traffic offences, including convictions for drink-driving. Mr Cook was also fined on a number of occasions on the train for nuisance behaviour like placing his feet on the seats. He did not pay all of the fines, and his drivers’ licence was suspended – but he continued to drive on occasions, which led to more fines.

9.      I would not ordinarily give a record of minor offences or regulatory infringements a great deal of weight. The Minister says those matters should be taken into account though in this case because they demonstrate a pattern of misbehaviour. I was told Mr Cook had a problem with authority and had difficulty following the rules.

10.     Mr Cook’s record of violent offences is of more significance. His first conviction for assault was in 1998. He had an altercation with a high school student at a bus stop. Thereafter, Mr Cook was consistently in trouble. He breached domestic violence orders in 2001 and was given a suspended sentence. Mr Sharpe, for the Minister, said Mr Cook had been under constant supervision of the Department of Corrective Services ever since. He breached a bail undertaking in 2003. In 2004, he was convicted of five breaches of bail conditions and breaching the orders in relation to the suspended sentence that was imposed in 2001. He was convicted twice of breaching probation orders in 2005. In July 2007, he was convicted of:

·Assault occasioning actual bodily harm (9 months);

·Breach of domestic violence order (4 months); and

·Assault (4 months).

11.     Mr Cook was released a few months later on parole. I was provided with copies of the correspondence between Mr Cook and the authorities in which he expressed his remorse and promised to behave after he left gaol. But he soon returned to his old ways. He committed a serious violent robbery in November that year and assaulted another person. He was sentenced to five years in gaol for robbery with actual violence, 18 months in gaol for two counts of assault occasioning actual bodily harm and six months for assault. The details of the violent robbery were recounted in the sentencing judge’s remarks. Mr Cook was making off with a number of bottles of alcohol he had stolen from a hotel when he was chased down by a hotel employee. Mr Cook placed the bottles on the ground when the employee caught up with him. When the man went to pick up the bottles, Mr Cook beat him repeatedly. It was a vicious attack. The other assaults all arose out of another incident on a train that was described by the sentencing judge. Mr Cook was involved in a rowdy altercation with another person. A railway employee intervened. Mr Cook threw objects at the employee and set upon him. Other passengers came to the officer’s assistance. The officer was injured in the course of the senseless, uncontrolled attack. He was lucky not to have been more seriously injured.

12.     The Minister concedes Mr Cook has been well-behaved in gaol. I am not aware of any serious infraction of prison discipline. I note Mr Cook is eligible for parole but the parole authorities have declined to release him on the basis (acknowledged by Mr Cook) that he represents a serious risk of re-offending.

13.     Mr Cook has undertaken a number of courses while he is in prison. He has done a certificate course in wood-working and he is learning to play the guitar. He also makes regular use of the gym and sporting facilities at the gaol. More significantly for present purposes, he has actively participated in the Alcoholics’ Anonymous (“AA”) program. He has a sponsor outside of the gaol who visits him once a month. (I note the sponsor attended the hearing to show his support.) Mr Cook attends meetings once a week. That is encouraging evidence: the sentencing judge indicated Mr Cook’s drinking was an important contributor to his violent behaviour, and his prospects for rehabilitation turned on efforts to bring his drinking under control. Mr Cook agreed he had started attending AA meetings before his latest stint in gaol, but he said he is now firmly committed to the program and thinks it will help him keep out of trouble once he gets out of gaol if he is allowed to stay in Australia.

14.     I note Mr Cook has been suspended from the Cognitive Self-Change Program which is offered within the gaol. The program is intended to allow prisoners to learn to take responsibility for their behaviour and avoid the mistakes of the past. Mr Cook said he was finding the program useful. It was ultimately unclear why he did not complete it. I will not infer anything from that and simply note he has not completed the program.

15.     I was not provided with other evidence by rehabilitation specialists or individuals with experience in behaviour management. I was however provided with a number of positive references from family members. Ms MacDonald and Ms Heke in particular indicated they were willing to provide financial support, accommodation and a home environment for Mr Cook upon his release if he is permitted to remain in this country. I accept they genuinely intend to provide as much support as they can. Ms MacDonald said she was happy for Mr Cook to come and live with her and added she was confident she could get him a job quickly. That is encouraging, although obviously supportive evidence from family members has less weight than evidence from relevant independent experts.

16.     Ms MacDonald and Ms Heke spoke of their worry for Mr Cook’s future if he were forced to return to New Zealand. They said (and I accept) he has no close relatives who were capable of offering any support for him, which increases the likelihood of him re-offending. They were worried about what would happen if Mr Cook fell into the company of his father. Ms Heke said she was so concerned she would consider returning to New Zealand to be with him. Both Ms MacDonald and Ms Heke (and Mr Cook’s siblings, who provided written statements) spoke of their anguish at the prospect of him being removed from Australia. Mr Cook, for his part, was conscious of the fact he did not have close family in New Zealand. He was not sure what he would do if he was sent home.

17.     I note that Mr Cook does not have regular contact with either of his children or their mothers. He has not seen his daughter in almost a decade, and he has not seen his son in around four years. He says he wants to find them and establish contact.

The Minister’s Direction

18. I turn now to the matters I am required to consider when deciding whether to exercise the discretion to cancel a visa on character grounds pursuant to s 501 of the Act. The Direction identifies four primary considerations which must be given weight ahead of other considerations.

19.     The first (and in this case, the most important) primary consideration is the need to protect the Australian community from serious criminal or other harmful conduct, particularly crimes of violence. I am required to consider (a) the seriousness and nature of the relevant conduct and (b) the risk that the conduct will be repeated.

20.     I have already discussed the applicant’s criminal history. It includes a number of minor matters that individually count for little. It also includes a number of failures to comply with reporting obligations and other matters when under supervision by the Department of Corrective Services. That is worrying. The pattern of failure suggests Mr Cook is unable to stick to his commitments. Alarmingly, the record includes a pattern of assaults, culminating in a charge of robbery with violence in 2007. The remarks of the sentencing judge make clear that the robbery offence is a very serious one. The seriousness is reflected in the lengthy gaol sentence.

21.     The Direction is particularly concerned about crimes of violence. The circumstances of this offence and the offence involving the railway employee suggest Mr Cook has a capacity for sudden, uncontrolled, violent outbursts directed at ordinary citizens. I accept that the propensity is only evident when he consumes alcohol, but he certainly did have a serious drinking problem.

22.     Mr Cook says he is a changed man as a result of his experience in prison. He certainly presented as an honest witness who did his best to confront his past and express remorse for what he had done. I accept he has developed a degree of insight into his offending, and into the risks posed by his drinking in particular. I accept he has also decided he does not want to go back to gaol. He added that he now has a sense of commitment to his family members that he did not previously feel. That sense of commitment makes him determined to do better.

23.     I accept Mr Cook is genuine when he says he wants to lead a normal life and avoid further criminal conduct. But Mr Sharpe points out that Mr Cook has made promises like this before when he sought early release after a short stint in gaol in 2007.

24.     I am satisfied Mr Cook honestly wants to avoid re-offending upon his release. I accept he has a better chance of doing so with the support of his relatives, like Ms MacDonald and Ms Heke. He has certainly made some progress towards his goal, most obviously by participating in the AA program. But he does not have a good record when left to his own devices. It remains to be seen whether he would be able to stick to his commitments to his family, participate in the AA program, hold down a job, comply with reporting requirements and stay out of trouble. I am hopeful that he has developed the maturity and coping skills required to survive outside the gaol, but there is limited objective evidence (like reports from counsellors or a record of successfully completing rehabilitation programs) that would enable me to reach that conclusion. I must conclude that there is a substantial risk of re-offending. I am also conscious that the risk of the applicant committing further crimes of violence if he cannot resist alcohol is particularly worrying. In those circumstances, I must conclude the first primary consideration (the need to protect the Australian community) weighs heavily against Mr Cook.

25.     I accept that Mr Cook was a minor when he first arrived in Australia, but he was on the brink of adulthood. I do not think the second primary consideration – whether the applicant was a minor when he came to this country – counts heavily in his favour. The third consideration is the length of time that the person was ordinarily resident in this country before he engaged in criminal activity. Mr Cook was convicted of his first offence within a year of his arrival. He has been here for approximately 12 years, and he has been under supervision of one sort or another since 2001. It follows that the third consideration counts against him.

26.     The fourth primary consideration refers to any international obligations. One international obligation is relevant here: the rights of Mr Cook’s children. Australian family law generally proceeds on the basis that a child’s best interests are served by contact with both parents. But Mr Cook does not have contact with either of his children or their mothers. I understand he does not know where they live. I accept he is serious when he says he wants to make contact and play a role in their lives, but as it stands it is difficult to see how the interests of his children will be hurt by his removal when he is effectively a stranger to them. I do not think this consideration counts heavily in his favour.

27.     What of the other considerations? I accept Mr Cook will have a hard time of it in New Zealand because he does not have an established support network there. But he is a healthy, able-bodied person and he can make a life for himself there if he chooses to do so. His Australian family members are free to visit him there. I accept that the Australian family members will experience a sense of loss if they are isolated from Mr Cook, but his absence will not deprive them of support or otherwise burden them.

Conclusion

28. On balance, the primary considerations weigh reasonably heavily against Mr Cook. He represents a real risk to the Australian community. While the other considerations weigh in his favour, I am satisfied that, all things considered, the applicant’s visa should be cancelled pursuant to s 501. The decision under review is affirmed.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed: ............................[Sgd]...............................................
  Patrick MacDonald, Associate

Date of Hearing  22 November 2010
Date of Decision  3 December 2010

Applicant  Self-represented

Solicitor for the Respondent          Mr W Sharpe, Clayton Utz