Cooper and Minister for Immigration and Citizenship

[2010] AATA 750

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 750

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/2997

GENERAL ADMINISTRATIVE DIVISION		)
Re		Jason Cooper

Applicant

And Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal Senior Member A K Britton

Date30 September 2010

PlaceSydney

Decision The decision under review is set aside, and a decision substituted that the applicant’s visa not be cancelled.

..................[SGD]...............

Senior Member

CATCHWORDS

MIGRATION – visa cancellation – character test – Ministerial Direction – weighing of relevant considerations favours setting aside Minister’s decision to cancel visa.

Migration Act 1958 (Cth) — ss 499, 501

Crimes (Sentencing Procedure) Act 1999 (NSW) — s 11

REASONS FOR DECISION

29 September 2010 Senior Member A K Britton           

1.      Mr Jason Cooper has applied to the Administrative Appeals Tribunal for review of the decision made by a delegate of the Minister for Immigration and Citizenship to cancel his Australian visa. The stated ground for that decision was that Mr Cooper did not pass the “character test” and poses an “unacceptable risk of harm” to the Australian community.

2.      Mr Cooper was born in and is a citizen of New Zealand. He has lived in Australia since he was ten, and is now 35 years of age. Since his arrival in Australia, he has been convicted of a number of offences and served two terms of imprisonment — eight months commencing in November 2009 and three months in the late nineties. He is currently in Villawood Immigration Detention Centre in Sydney awaiting the outcome of these proceedings.

3.      Two months ago, Mr Cooper’s four year old daughter was found by police in a public toilet with her mother, who had passed out — apparently as a result of a drug overdose. The mother suffers from a long-term heroin addiction. Care proceedings are presently underway before the NSW Children’s Court, and the child is currently in a short-term foster care placement awaiting the outcome of those proceedings. Mr Cooper claims that the sole reason he wishes to stay in Australia is so that his daughter can be returned to his care or can at least have regular contact with him.

4.      Because of the sensitive nature of the material raised by Mr Cooper’s application, I have attempted as far as possible not to reveal the identity of the child or the former partner. To this end, I will not refer to either by name.

Power to cancel Mr Cooper’s visa

5. Under s 501 of the Migration Act 1958 (Cth) (“the Act”), the Minister, or the Tribunal acting as substitute decision-maker, may cancel a visa if they “reasonably suspect that the person [who holds the visa] does not pass the character test” and “the person does not satisfy the [decision-maker] that the person passes the character test”. A person does not pass the character test if he or she has a “substantial criminal record”: s 501(6). The Act defines a “substantial criminal record” to include having been sentenced to a term of imprisonment of 12 months or more, or having been sentenced to two or more terms of imprisonment where the total of those terms is two years or more: s 501(7). It is conceded that Mr Cooper has a “substantial criminal record” and therefore does not pass the character test. The precondition to the exercise of the power to cancel the visa is therefore satisfied.

Factors relevant to exercising power to cancel Mr Cooper’s visa

6. In deciding whether to exercise the discretionary power to cancel Mr Cooper’s visa, I am required to have regard to “Direction [no. 41] – Visa refusal and cancellation under s 501” (“the Direction”). The Direction was issued by the Minister for Immigration and Citizenship under s 499 of the Act.

7.      The Direction lists a number of “primary” and “other” considerations that the decision-maker must take into account. The Direction provides that generally, “other considerations” should be given less weight than is given to primary considerations: par 11.2.

8.      The primary considerations are set out in paragraph 10(1) of the Direction:

(a) the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;

(b) whether the person was a minor when they began living in Australia;

(c) the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and

(d) relevant international obligations, including but not limited to:

(i) the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and

(ii) the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

9.      A range of factors, to which the decision-maker must have regard, elaborate on these considerations.

Primary considerations

(a) Protection of the Australian Community

10.     The Direction requires that due consideration be given to the Government’s objectives as set out in paragraph 5 of the Direction:

5.1 Objectives

(1) The objective of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens.

(2) In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.

(3) The Government is especially mindful to protect the safety of the community’s more vulnerable members, including minors, the elderly and the disabled.

11.     The Direction identifies two factors relevant to assessing the risk of harm to the community of the person’s continued stay in Australia: (i) the seriousness and nature of the relevant conduct; and (ii), the risk that the conduct may be repeated: par 10.1.2.

(i) Seriousness and nature of the conduct

12.     The Direction sets out a number of factors to be taken into account in assessing the seriousness and nature of the offending conduct. It states that:

Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community. Those crimes involving violence, particularly against vulnerable persons (such as minors, the elderly and the disabled), are especially abhorrent to the whole community.

13.     Paragraph 10.1.1(3) of the Direction provides that the sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community, and due regard must be given to the extent of the offender’s criminal record including:

(i)        the number and nature of offences;

(ii)       the period between offences; and

(iii)      the time elapsed since the most recent offence.

14.     Factors to be assessed under paragraph 10.1.1(4) include any judicial comments made about the person, parole assessments, and any relevant mitigating factors.

15.     Criminal History: Mr Cooper has been convicted of the following offences:

Date	Offence	Sentence
11 January 2010	Assault Occasioning Actual Bodily Harm Contravene prohibition / restriction in apprehended domestic violence order	9 months imprisonment (6 months non-parole)
	Common Assault Contravene prohibition / restriction in order (domestic)	6 months imprisonment
	Contravene prohibition/ restriction in apprehended domestic violence order	Convicted No penalty imposed.
21 October 2009	Common assault Contravene prohibition/restriction in order (domestic)	On each charge: Imprisonment for 6 months suspended on entering bond to be of good behavior 6 months
29 Jun 2007	Possess Prohibited Drug	Fined $200
	Common assault	12 months good behaviour bond
7 November 2006	Fail to hold valid ticket for train travel	Fined $100
23 November 2004	Knowingly obtain payment not payable (x2)	On both charges – imprisonment for 6 months released on entering recognizance self $500 to be of good behaviour for 6 months Pay reparation $6,699.54
	Obtain financial advantage	Imprisonment 6 months released on entering recognizance self $500 to be of good behaviour 6 months
	Steal motor vehicle	Imprisonment 6 months released on entering bond to be of good behaviour 6 months
	State false name	Fined $100
Use concession ticket for travel when not entitled (x2)	Fined $100
27 October 2004	Possess prohibited drug (x2)	On each charge: fined $200
25 June 2004	Behave in offensive manner in/near public place or school	Fined $300
14 January 2004	Unauthorised dealing with shop goods	Fined $100. Pay restitution $5.
22 November 2003	Breach bail undertaking. Breach of suspended sentence imposed 9 July 2001	Fined $1000. Suspended sentence extended for 12 months.
9 July 2001	Assault occasioning actual bodily harm	Imprisonment for 6 months, wholly suspended for 3 years.
3 December 1999	Application for revocation of fine option order granted on 28 July 1999 (re: Possessing dangerous drugs, possess utensils or pipes etc.)	Order revoked. Original fine varied to $408.10.
28 July 1999	Application for fine option order granted on 28 July 1999 (re: Possessing dangerous drugs, possess utensils or pipes etc.)	Fine option order 86 hours
25 March 1999	Possessing dangerous drugs Possess utensils or pipes etc.	Fined $650
15 May 1998	Assault police officer in performance of duty	Fined $300 Fined option order community service 40 hours
	Behave in disorderly manner	Fined $100 Fined option order community service 13 hours
11 August 1997	Breach probation orders x 2 imposed 19 April 1996 (re: break and enter, stealing x 2) by failing to pay compensation	Convicted. Order set aside. Re-sentenced for original offences. Break and enter – 1 month imprisonment. Stealing (x 2) – 1 week imprisonment
19 February 1997	Went armed in public in manner to cause fear	Imprisonment 6 months wholly suspended for 2 years
	Breach probation order imposed 19 April 1996	Fined $200
15 November 1996	Breach probation order and breach community service order imposed 20 May 1996 (re: drive with blood alcohol content, disqualified driving, fail to stop at traffic incident)	Orders set aside and dealt with for original offences Drive with blood alcohol content – fined $400 Disqualified driving – fined $500 Fail to stop at traffic incident – fined $150
6 August 1996	Breach fine option order x 4 imposed on 4 March 1996 (re: unlicensed driving, state false name, unlawful use of drivers licence, drive with blood alcohol content)	Credited with no hours
19 April 1996	Stealing (x 2) Break and enter with intent	No conviction recorded Pay compensation $732
4 March 1996	Applications for fine option orders:
	1. Unlicensed driving	Fine option order 20 hours community service
	2. State false name	Fine option order 6 hours community service
	3. Unlawful use of drivers licence	Fine option order 6 hours community service
	4. Drive with blood alcohol content	Fine option order 65 hours community service

16.     November 2009 offences It is agreed that of the offences for which Mr Cooper has been convicted, the offences committed in November 2009 were the most serious. The little documentary evidence tendered in these proceedings about those offences reveals that on 18 November 2009, Mr Cooper hit his former partner above the eye with a beer bottle. He had been drinking. He testified in these proceedings that he had had returned home to borrow money, however his former partner refused and punched him four times. In the process of warding off her punches, Mr Cooper claims he miscalculated and hit her above the eye with an (unbroken) beer bottle. He denies, as alleged by the police, that she was holding their daughter her arms when he struck her.

17.     At the time of the offence Mr Cooper was on a six month suspended sentence following conviction on 21 October 2009 for common assault and contravention of a domestic violence order (s 11, Crimes (Sentencing Procedure) Act 1999 (NSW)). No court papers or police records in relation to those convictions have been provided. In these proceedings, Mr Cooper testified that the incident which gave rise to that conviction involved him grabbing the phone from his former partner’s hand and accidentally hitting her on the side of the head. .

18.     According to Mr Cooper, at the time of the October 2009 offences he was subject to a DVO that had been imposed following conviction in June 2007 for common assault — he pleaded guilty to slapping his former partner. He was placed on a “good behaviour bond” (s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW)). He claims that he lost his temper upon discovering that she had spent the rent money on drugs and the family was about to be evicted. On his account, one of the conditions of the DVO was that if intoxicated, he was not be present in the house where his child and former partner were residing.

19.     In respect of the November 2009 offences, the sentencing magistrate revoked the suspended sentence imposed in respect of the October 2009 conviction and imposed concurrent nine and six month custodial sentence, with a non-parole period of six months.

20.     Mr Cooper has also been convicted of a number of other offences involving physical — but not domestic — violence:

Approx 1990: This offence is not mentioned in any of the documents before me and was disclosed by Mr Cooper. He testified that when he was 15 years of age he broke the jaw of a boy who had hit him in the back of his head. He claimed that he apologised and they later became mates.

February 1997: “Went armed in public in a manner to cause fear”. Mr Cooper claims that he was drunk and at a night club and had gone to the defence of a friend who was being hit by a security guard. He said he had chased the guard with a knife.

May 1998: “Assault police officer in performance of duty”. Mr Cooper claims that he had thrown punches at a police officer who he had mistaken for a civilian. He claims that he was drunk at the time.

July 2001: “Assault occasioning actual bodily harm”. Mr Cooper claims that he got into an altercation with another male on New Year’s Eve. He claims he had been drinking all day.

21.     Mr Cooper’s remaining convictions involve traffic, drugs and offences against property — theft, fare evasion and welfare fraud.

22.     Conflicting evidence: A factual issue in dispute is whether the former partner had the child in her arms when she was hit by Mr Cooper in November 2009. This is relevant to the seriousness of Mr Cooper’s conduct and his capacity to parent. In these proceedings, he insisted that he would never put his daughter at risk and that his former partner was not holding the child when he struck her. He claims that he immediately walked away after she picked up the child. There is no evidence that Mr Cooper’s daughter has been the direct victim of his offending conduct, and nor is this suggested by the Minister.

23.     The dearth of documentary material about Mr Cooper’s criminal history and the November 2009 offences makes the task of resolving the apparent conflict between the facts as alleged by the police and the account given by Mr Cooper in these proceedings, difficult. The only material that has been provided is the transcript of the sentencing proceedings before the Local Court and the subsequent District Court appeal.

24.     The Tribunal may, if appropriate, “go behind” the facts found when an applicant in Mr Cooper’s situation is convicted and sentenced: Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313. However, as Branson J stated in Ali, any conviction and sentence may not be impugned, and there is a strong prima facie presumption that the facts found by the court in convicting and sentencing were found correctly. This places a “heavy onus”, as Her Honour put it, on a party seeking to persuade the Tribunal to accept facts other than those on which the convicting court relied: Ali at 325.

25.     It is plain from his remarks on sentencing that the magistrate considered the “fact” that the former partner had been holding the child when hit by Mr Cooper to be an aggravating factor in the offence:

I note that in relation to the subsequent matter which involved the use of the beer bottle whilst his partner was holding the child, that having regard to the objective seriousness of the matter, having regard to his antecedents, that again the court really has no option but to impose a custodial term…

26.     Mr Cooper entered a guilty plea in relation to that charge. As Branson J noted in Ali, people may on occasion plead guilty when a defence may have been available to them. A plea of guilty, at law, is an acknowledgment by the accused person that there is sufficient evidence capable of proving each of the elements of the offence for which they have been charged. It is not necessarily a concession of each particular fact that the prosecution alleges occurred. An unrepresented accused may not fully understand the process. More particularly, an unrepresented accused pleading guilty to a charge may not know that he or she is entitled to dispute allegations of fact made by the prosecution except insofar as that constitutes a traversal of the plea of guilty. It may be appropriate for the Tribunal to undertake a new fact-finding exercise where the applicant was unrepresented in criminal proceedings. However, where, as in Mr Cooper’s case, the applicant was represented by a competent lawyer and had an adequate opportunity to provide instructions before the facts were found by the court and sentence was imposed, the Tribunal would ordinarily view with great caution a claim that the facts found by the sentencing court were incomplete or incorrect; gave undue emphasis to some aspect; or gave insufficient weight to another aspect of the case.

27.     In my view it would be inappropriate, as urged by Counsel for Mr Cooper, to embark on a fact-finding exercise to determine the truth or otherwise of the claim he made in these proceedings about the child not being held by his former partner. The practical difficulties of doing so are self-evident, given the dearth of court and police records. In addition, Mr Cooper was legally represented and had an opportunity to provide instructions before the facts were found by the court and sentence imposed. Furthermore there is no independent evidence to support the version of events he gave in these proceedings.

28.     Given these considerations, Mr Cooper has not in my view discharged the “heavy onus” that would entitle me to look behind the facts of that conviction. For these reasons, I will proceed on the basis that the former partner was holding the child when she was struck by Mr Cooper.

29.     Judicial comments: As noted, the only judicial comments made in relation to Mr Cooper that have been provided are those that relate to the November 2009 offences.

30.     On appeal, Frearson DCJ commented:

But he’s got a Veen No. 2 [Veen v The Queen (1988) 164 CLR 465 (Veen No 2)] type record which manifests continuing disobedience of the law and he’s got that because he’s got a problem with the alcohol and he can’t control it and it’s a rather hopeful expectation that he’s just going to go miraculously into the community and then be able to control something he’s never been able to control since he was a teenager…

I think he is well intentioned, I think, as he thinks well I wasted a good part of my life by getting affected by alcohol and doing crazy aggressive things. I mean it’s a dreadful waste of life for a start, I mean who’d want to spend their life doing that but when it comes to – you know when it descends into abusing women, they’re the people the court is supposed to protect, women and children. What do you want me to do? No-one should have to put up with that from a grown man.

(ii) Risk that conduct may be repeated

31.     The Direction provides that Mr Cooper’s previous general conduct and total criminal history are to be considered “highly relevant” when assessing the risk he poses of re‑offending: par. 10.1.2(1). The following factors are to be considered particularly relevant to that assessment:

(a) a recent history of convictions, which should be considered as indicating an increased risk of re-offending;

(b) evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation. Greater weight should generally be given to evidence from independent and authoritative sources, such as judicial comments, professional psychological reports, pre-sentence reports for the courts, parole assessments, and similar sources of authoritative information or assessment; and

(c) evidence that the person has breached judicial orders, including parole, bail, bonds, suspended sentences and any other relevant undertakings or conditions imposed by the courts.

32.     History of recent convictions: Mr Cooper has been incarcerated since committing his most recent offence in November 2009. About a month before that, he had been convicted of common assault and possession of prohibited drugs. That was his first offence for over two years.

33.     History of drug and alcohol abuse: Mr Cooper admits to having a serious drug and alcohol problem. He claims he was seven years of age when introduced to alcohol by his father and became a heavy drinker by age 15. He claims that he started using illegal drugs when he was 16, mainly marijuana and occasionally amphetamines. On his account, he began to associate with regular drug users when he moved to Kings Cross in Sydney from Queensland in 2004. He claims that he started using heroin after being introduced by his former partner in mid-2006.

34.     Mr Cooper claims he has not touched illicit drugs since February 2009 and alcohol since being incarcerated in November 2009. He has tested negative for illicit drugs during random testing conducted while incarcerated in February and May of this year.

35.     Rehabilitation undertaken: Mr Cooper claims that he has undergone the following rehabilitation:

Late 200628 day detoxification and rehabilitation at Rozelle psychiatric hospital

First half 2007   Four months drug and alcohol counselling provided by Mathew Talbot psychologist

March 2010 Short drug and alcohol program at Parklea Correctional Centre

April 2010 Anger management course conducted at Parklea Correctional Centre

Since admission to Villawood           Attending Narcotics Anonymous meetings

36.     On his account, he made enquiries about the availability of rehabilitation programs while incarcerated but was told none were available apart from those listed above.

37.     Future rehabilitation: Mr Cooper testified that he intends to remain off drugs and alcohol on release from Villawood. He says that he recognises it is critical he do so if he is to play any real role in respect of his daughter.  

38.     If not deported on release from detention, Mr Cooper will be subject to a six month parole period. The conditions of his parole include that he undertake drug and alcohol counselling and anger management programs as directed by the NSW Probation and Parole Service. Mr Cooper stated that one of the reasons for appealing the original sentence was to make himself eligible for various rehabilitation programs, which he understood would only be available if he was subject to a longer parole period.

39.     Compliance with judicial orders: Mr Cooper has a poor history of compliance with judicial orders. As noted, at the time of the October and November 2009 offences he was subject to bonds to be of good behaviour and on a suspended sentence. In 2006, 2007 and 2009 he contravened AVOs.

40.     A report prepared by the NSW Probation and Parole Service in June 2010 recorded that Mr Cooper has not caused any problems since his arrival at Parklea Correctional Centre in February 2010, and was reported to be a very good worker.

41.     Employment history: According to Mr Cooper, he has a long history of stable employment in a variety of areas. His most recent employment with a fencing company lasted for 10 months, and ceased when Mr Cooper was taken into custody.

42.     Tendered in these proceedings were statements prepared by Mr Cooper’s former employer and a work colleague. The employer also gave oral evidence. The work colleague was not required for cross-examination. Both testified that Mr Cooper was an exemplary employee — punctilious, courteous and hard working, and someone who had an excellent relationship with his colleagues. Both testified that they had never observed him under the influence of drugs. The employer testified that he had received a number of very positive reports from customers about Mr Cooper. The colleague described him as “a very reliable offsider, one of the best I have ever had”.

43.     The employer testified that he would be prepared to re-employ Mr Cooper. When asked if he would be able to offer him a position within the next few weeks, the employer said he would need to discuss the matter with his accountant, but was confident that he could employ Mr Cooper even if given little notice..

44.     Expert opinion: Mr Cooper was assessed by psychologist, Ms Jenny Howell, who prepared a report for these proceedings and also gave oral evidence.

45.     In assessing the risk that Mr Cooper might re-offend, Ms Howell used a violence-risk assessment instrument — the Historical, Clinical, and Risk Management (HCR-20). The HCR-20 employs past, present, and future “risk markers” to assess a person’s risk of recidivism. According to Ms Howell, HCR-20 is widely used by her peers within the NSW criminal justice system and other jurisdictions to assess recidivism.

46.     Ms Howell stated that the results of testing using the HCR-20 suggest that Mr Cooper presents a low risk for future violent offending. She believed it significant that he demonstrated insight into the effect of violence on children and others; had acknowledged full responsibility for his actions; maintained stable employment as an adult, and had supported his family financially. However, she acknowledged that his lack of personal support and long history of drug and alcohol use made him vulnerable to re-offending.

47.     According to Ms Howell, Mr Cooper’s HCR-20 score indicated that if on release he failed to complete programs to support his abstinence from drug and alcohol use, there was some risk that he might re-offend. However, she believed there were a number of positive signs that suggested that Mr Cooper would be able to continue to abstain from drug and alcohol use. These included: the relatively long period he had now abstained from using illicit drugs and alcohol; his insight into the link between his offending behaviour and drug and alcohol use; and his apparent responsiveness to treatment and acknowledgement that if he failed, he would be unable to resume the care of his daughter. In her opinion, Mr Cooper appeared genuinely determined to resume an active role in the life of his daughter.

48.     Ms Howell pointed out that Mr Cooper’s exposure to violence as a child constituted a risk factor under HCR-20. She recommended that Mr Cooper participate in psychotherapy to assist him address issues arising from his childhood abuse.

49.     Ms Howell thought it relevant that most of Mr Cooper’s violent offences had been committed in the context of what she considered to be a highly dysfunctional relationship. She thought that his history was not suggestive of a person who was habitually violent in domestic situations, and pointed out that he had been in a number of other relationships — including a six year de-facto relationship in his early twenties — where there had been no suggestion of domestic violence. Mr Cooper testified that his relationship with his former partner was over.

Findings and conclusions

50.     The Direction instructs that in assessing the primary consideration of protection of the Australian community, consideration must be given to both the seriousness and nature of Mr Cooper’s offending conduct and the risk that that conduct might be repeated.

51.     The Direction categorises some of the offences for which Mr Cooper has been convicted as “serious” — namely, robbery and assault. As the Minister acknowledges, none of the offences for which he has been convicted fall at the high end of the scale in terms of seriousness. That view is mirrored by the approach taken by the sentencing judges who concluded that Mr Cooper’s offending conduct warranted custodial sentences on only two occasions, and relatively light sentences at that.

52.     I agree with the view taken by the Minister that Mr Cooper is not a person who can be described as “evil at the core”, but rather someone with poor impulse control when under the influence of drugs and alcohol. There is no evidence — and nor is it suggested — that Mr Cooper suffers from some intrinsic defect or personality disorder which makes him prone to engage in anti-social behaviour. Nonetheless, the length of his criminal history, the recent escalation in both the frequency and nature of violent offending, together with his history of non-compliance with supervisory orders, are suggestive of a person who Frearson DCJ described as one with a “record which manifests continuing disobedience to the law”. While taken overall, his offending conduct is not the “most serious”, nonetheless it not insignificant and if it were to continue would represent a threat to the Australian community.

53.     The parties agree that central to an assessment of Mr Cooper’s propensity to re-offend is whether he will be able to continue to abstain from drug and alcohol use. It is agreed that Mr Cooper’s reported periods of abstinence from drug and alcohol use, 18 and 10 months, respectively, is a very positive sign. Nonetheless, as the Minister points out, the duration of his addictions and earlier failed attempts at rehabilitation indicate that his continued abstinence is not guaranteed.

54.     While it is impossible to say with any certainty whether an individual with Mr Cooper’s history will return to drug and alcohol use, Ms Howell identified a number of factors which are protective against him doing so. These include first, his ability to date to abstain for a significant period. While that conclusion is based largely on Mr Cooper’s self-report there is some evidence to support it — the evidence of his former employer and work colleague that they never observed him under the influence of drugs; their positive opinion about his reliability as a worker; and the results on urinalysis testing while incarcerated. While Mr Cooper did not claim that he had stoped drinking during his most recent period of employment, it can be inferred from the willingness of his former employer to rehire him, together with the long hours he worked, that his alcohol use throughout that period was controlled and, as claimed, largely confined to the weekend.

55.     Second, his proven ability to obtain and maintain employment. In my view, it is highly likely given his range of skills and employment history that despite his criminal record, Mr Cooper will obtain employment within a short period of release. His future employment is all but guaranteed by his former employer, who impressed me as a measured and truthful witness.

56.     Third, his insight into the link between his offending conduct and drug and alcohol use and the need to obtain assistance. Ms Howell and social worker, Ms Mary Jelen, are of the opinion that Mr Cooper fully appreciates the link between his drug and alcohol use and his offending conduct. The transcript of the NSW District Court appeal reveals that well before he learnt of the Minister’s decision to revoke his visa, Mr Cooper recognised the link between the two and the need to undertake rehabilitation.

57.     Fourth, Mr Cooper’s recognition that his ability to resume any significant role vis a vis his daughter is inextricably linked to his ability to remain drug- and alcohol-free. Ms Howell and Ms Jelen believe that Mr Cooper’s commitment to his daughter is genuine and that he appreciates that he will be unable to resume any meaningful role in her life if he relapses into drug and alcohol use. I agree with that assessment.

58.     While these are powerful factors that will guard against relapse and further offending, other factors averted to by Ms Howell increase Mr Cooper’s risk of re-offending. In her opinion, while the risk of both re-offending and relapse is low, if Mr Cooper were to relapse the risk that he might re-offend would increase to moderate.

59.     I agree with Ms Howell that if Mr Cooper does not relapse into drug and alcohol use, his risk of re-offending is probably low. The more difficult question is the likelihood of relapse. While his prolonged involvement with alcohol and drugs weighs against him, the powerful protective factors identified above provide me with some confidence that he will not relapse. However, as the risk of relapse cannot be excluded, I must conclude that his risk of re-offending is low to moderate. In my view the protection of the Australian community favours the cancellation of his visa, but not to the extent it would had the nature of his offending conduct been more serious or the risk of re-offending greater.

B. Mr Cooper was a minor when he began living in Australia

60.     Mr Cooper began living in Australia when he was aged 10. This factor favours his visa not being revoked.

C. Mr Cooper has been resident in Australia for 24 years 

61.     The Direction provides: “More favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character”: par 10.3 (1).

62.     Mr Cooper has lived in Australia continuously since his arrival in 1986. He had been resident in Australia for approximately five years before committing his first offence. He was a juvenile at the time. He committed his first offence as an adult when he was 20 years of age.

63.     Mr Cooper’s long period of residence in Australia weighs in his favour, but not to extent it might had he not commenced offending conduct (as an adult) 10 years after his arrival.  

D. International obligations

64.     Paragraph 10.4 of the Direction provides:

(1)  Reflecting Australia's obligations under the CROC, if there is a child in Australia who is potentially affected by a visa refusal or cancellation decision, decision-makers must have regard to the best interests of the child,

(2)  Where relevant, any non-refoulement obligations, including under the Refugees Convention, must be considered.

65.     It is agreed that that the cancellation of Mr Cooper's visa would not be contrary to Australia's non-refoulement obligations.

Best interests of the child

66.     The Direction creates a presumption that a child's best interests will generally be served if the child remains with their parents: par 10.4.1(4). Mr Cooper is the father of two daughters — a four and a ten year old. Both girls are Australian citizens.

67.     Mr Cooper has never met or played any role in the life of his ten year old daughter. He claims that the child’s mother “up and left” when she was six months pregnant for undisclosed reasons. He claims that it remains a mystery to him why she left their six year relationship.

68.     On his account, the position vis a vis his youngest daughter — who for convenience I will refer to as “the daughter” — is very different. He claims that apart from a five to six month separation, he lived with his daughter continuously from the time of her birth until he was incarcerated in November 2009. On his account, he maintained some contact throughout the separation.

69.     According to Mr Cooper, he worked long hours to support the family throughout the period he lived with his daughter. He claims that despite this he was very much a ”hands-on” father, and on return from work each day attended to domestic tasks and prepared the evening meal. On his account his former partner had little interest in domestic duties, and because of poly-substance abuse was largely unable to care for their daughter. His daughter was born with a methadone addiction, and he took responsibly for administering her medication and comforting her throughout the gruelling five month period required to wean her off methadone. He claimed that despite working long hours, it was he who attended to feeding and comforting the child at night.

70.     Mr Cooper related that he had a very close relationship with his daughter. She would be at his side whenever he was not working, and always appeared delighted on his return from work. He claimed that he was constantly worried about his daughter when at work because of his former partner’s drug habit, and he would often ring and drop by to see how she was faring. That claim is supported by the evidence of his former work colleagues (see report prepared by Ms Jelen, 13 September 2010.)

71.     Mr Cooper testified that he missed his daughter deeply throughout his ten month incarceration, and not a day had gone by when she was not foremost in his thoughts. He attempted to have contact the child shortly after being remanded and before being notified that cancellation of his visa was being considered. He said he was shocked and distressed when he learnt that his daughter had been taken into the care of the Department of Community Services (DoCS). He has attempted without success to participate in the care proceedings currently part-heard before the NSW Children’s Court. He has applied for legal assistance from the NSW Legal Aid Commission (who represents him in these proceedings) but has been told that his application will not be processed until these proceedings are finalised. He said he intends to seek orders that his daughter be transitioned into his care once he can arrange accommodation. He testified that if the Children’s Court was not prepared to return his daughter to his care at this stage, he would seek an order for regular access so that his relationship with her could be maintained and strengthened, allowing her to eventually be returned to his care.

72.     Expert evidence: Ms Jelen and Ms Howell each provided an opinion about the likely effect on the daughter of Mr Cooper being deported. Both gave oral evidence. For the purpose of that assessment Ms Jelen interviewed Mr Cooper and a number of his former work colleagues. Neither Ms Jelen nor Ms Howell have assessed or met the child.

73.     Ms Jelen and Ms Howell reached similar conclusions and were of the opinion that:

Based on Mr Cooper’s reported level of involvement, he represented a primary attachment figure to his daughter.

If the reported level of poly substance abuse by the mother is accepted, it is likely that she was “emotionally unavailable” to the child. Her relationship with Mr Cooper is therefore likely to be very significant.

The daughter is almost certainly suffering some form of “trauma” as a result of being separated from her two primary attachment figures. The trauma resulting from the separation from her father is likely to have become more acute following her recent removal from her mother.

The relationship with Mr Cooper should be maintained “at all costs”, as any trauma the daughter is now suffering could develop into a sense of abandonment and rejection when she reaches adolescence.

Without assessing the child it is not possible to comment on the quality of her relationship with Mr Cooper, but if she had witnessed domestic violence the quality of that relationship might be damaged.

Even if the relationship had been damaged it was critical that meaningful contact be maintained.

The longer the child was separated from Mr Cooper the more tenuous her relationship with him would become.

Mr Cooper’s commitment to his daughter appeared to be genuine.

74.     According to Ms Howell, the history provided by Mr Cooper during interview revealed that he had a deep and detailed knowledge of his daughter’s behaviour and needs throughout all stages of her development to date. In her opinion, that indicated that, as claimed, he had actively participated in her care, or at worst, was consistently present in the home and acutely observant. She thought the former to be more likely.

75.     Ms Howell and Ms Jelen agreed that given the child’s age, it was unlikely that she would be unable to maintain any meaningful relationship with Mr Cooper in the absence of direct psychical contact. Ms Jelen explained that up until about the age of eight, a child struggles to imagine in terms of time or space any person they speak to by phone. In her opinion, phone contact might be beneficial to the adult but is of limited, if any, benefit to a young child; hence, the daughter’s relationship with Mr Cooper could not be maintained if reliant on phone contact alone. Ms Howell agreed, but qualified that view by saying that phone contact could be beneficial to the child insofar as it constituted a reminder that they were loved by an another adult apart from their carer. However, to be any benefit to the child it was critical that the carer encourage and reinforce the notion that that the caller was a significant person who loved and cared for the child. Ms Howell and Ms Jelen testified that in their experience it was not uncommon for foster carers to undermine phone contact with birth parents.  

76.     Factors relevant to the assessment of the child’s interests: Paragraph 10.4.1(5) lists 15 factors to be taken into account in considering the best interests of the child. Most are dealt with above.

77.     Likelihood of Mr Cooper playing a full parental role up until his daughter’s 18th birthday: Whether Mr Cooper is likely to play a full parental role is dependent on the outcome of these proceedings, those before the Children’s Court and whether he is able to continue to abstain from drug and alcohol use and not re-offend. I accept that his claim of wishing to play a full parental role in the life of his daughter is genuine.

78.     Other person who fulfils a parental role: It would appear that the only people who have played a parental role in relation to daughter are Mr Cooper and his former partner. There is no evidence of any family member or friend assuming a parental-type role

79.     Impact of Mr Cooper’s prior conduct on the child: While there is no evidence to suggest that the child has been the direct victim of domestic violence, it is plain that she has been exposed to several violent incidents. Mr Cooper concedes that he was violent towards his former partner from late 2006, and DoCS records reveal numerous reports of domestic violence involving Mr Cooper and his former partner. These include reports of Mr Cooper being “a chronic cannabis user and overdosing in front of child” (August 2007) and the “child receiving a cut to her cheek after her father threw bong at television” (December 2007).

80.     Known wishes of the children: The wishes of the child are unknown.

81.     Likelihood of children accompanying Mr Cooper to New Zealand: The decision as to who should have parental responsibility and care of the child will be made by the NSW Children’s Court. While it is not possible to predict what decision will be made, it is highly improbable in my view that the court would permit the child to accompany Mr Cooper to New Zealand, if he were to be deported. Given this finding, it is unnecessary to address the factors listed in pars. 10.4.1(5)(m),(n) and (o) of the Direction.

Findings and conclusions

82.     The Direction rests on the rebuttable presumption that a child’s interests will generally be best served if they are to remain with their parents. That presumption is rebutted where, among other things, there is evidence that the person has abused or neglected the child in any way, or that the child has suffered or experienced any physical or emotional trauma arising from the person's conduct : par 10.4.1(4) of the Direction.

83.     While there is some evidence that the child was neglected while in the care of Mr Cooper and his former partner, it is difficult to determine both the extent of, and Mr Cooper’s culpability for, that neglect. On his account, when he was working the child was in the care of her mother except when in day care. He agrees that she was sometimes neglected during those periods. His claim that he made efforts to check on the child while at work is corroborated by the evidence of his work colleagues — at least in respect of his employment during the period, February to November 2009. The testimony of his former employer of seeing the child in Mr Cooper’s company and appearing happy, and of Mr Cooper often speaking about his daughter; and Ms Howell’s opinion that Mr Cooper’s ability to recall details of his daughter’s care needs throughout various periods of her development are consistent with his self-report of being a caring “hands-on dad”.

84.     While it may be that his most recent period of employment corresponded with a period during which Mr Cooper was drug-free and had reduced his alcohol intake, thereby enabling him to properly discharge his parental responsibilities, it seems to me unlikely that he was consistently the responsible care-giver he painted in these proceedings prior to February 2009. He admits that during that period he was a heavy drinker and a poly-substance abuser. The evidence reveals a number of disturbing domestic violence incidents during which the child was present if not the direct victim. Ms Jelen and Ms Howell concede it is possible that the child’s exposure to domestic violence may have damaged the quality of the relationship with Mr Cooper.

85.     In my view, while Mr Cooper subjected his daughter to emotional abuse by exposing her to domestic violence, if unintentionally, that fact of itself it does not rebut the presumption that separation from him is not in her best interests. In reaching that conclusion, I have taken into account the evidence of the positive parental role played by Mr Cooper, together with his evidence of being free of drugs since February 2009. While Mr Cooper’s account of his drug use during that period is uncorroborated, it is consistent with his exemplary work record and the observations of his colleagues.

86.     As the Minister correctly points out, it is not a given that his daughter would be returned to his care even if he is permitted to remain in Australia. While not possible — or indeed appropriate — to predict what decision will be made by the Children’s Court, it is plain that factors such as being separated from his daughter for ten months, being subject to an AVO and serving a six month parole period on release from detention, will weigh against Mr Cooper resuming parental responsibility at this stage. Nonetheless, in my opinion the child‘s best interests lie in him remaining in Australia. First, it would be in her best interests if return to Mr Cooper’s care and a stable, loving home was one of the care options available to the Children’s Court. Second, the expert opinion is unequivocal — the child will suffer a sense of rejection and abandonment in adolescence if denied regular and meaningful contact with her father. Third, given the child’s age, meaningful contact cannot be maintained via long distance. Fourth, if the child is to remain in foster care for either the short or long term, she would benefit from an adult with a genuine concern for her who can advocate on her behalf. There is no adult who currently performs that role. Her mother is clearly incapable of doing so — at least for the foreseeable future. The NSW Minister for Community Services currently holds parental responsibility for over 16,000 young people under the age of 17[1]. It is a matter of common knowledge that given the volume of children in care in NSW, not all receive the high standard of care expected by the Minster and her Department. As noted in the recent NSW report into child protection arrangements, children in care:

… have been identified as having increased developmental, behavioural, emotional and mental health issues and are less likely to access continuous education, treatment and medical care as a consequence of multiple placements, changes in caseworkers or alternating periods of placement at home and in [out of home care][2].

[1] Albert Zhou, “Estimation of Children Involved in NSW Welfare System”, NSW Human Services publication (June 2010) at pg. 4.

[2] Report of the Special Commission of Inquiry into Child Protection Services in NSW (November 2008), pg. 613

87.     Whatever shortcomings Mr Cooper might have had as a parent, in my opinion his commitment to his daughter is genuine and he would advocate on her behalf if she were to be placed in foster care. While he would not be prevented from doing so if he resided in New Zealand, he would be better placed to do so if he remained in Australia.

88.     Summary: Given Mr Cooper’s lack of contact with his eldest daughter, in my view the question of whether he is to remain in Australia does not effect her interests. However, I am satisfied that the youngest daughter’s best interests demand that Mr Cooper remain in Australia. This factor therefore weighs heavily in favour of him retaining his visa.

Other considerations

89.     As noted, the Direction specifies other considerations which, where relevant, must be taken into account. However, they should generally be given less weight than the primary considerations.

90.     Family ties:   Mr Cooper has no real ties to any family members apart from his daughter. His mother — who now lives in New Zealand — has refused to have any contact with him since he was incarcerated in November 2009. Her family is also in New Zealand. Apart from a sister with whom he has very little contact, his only other relatives are an uncle and his family who he has seen once in the last 25 years. I agree with the opinion of the Minister that this factor is neutral to the assessment of whether Mr Cooper’s visa should be cancelled.  

91.     Age and health:     Mr Cooper is in good health and relatively young. These factors do not weigh in favour of him retaining his visa.

92.     Links to New Zealand:     Mr Cooper has not lived in New Zealand since 1986. He has no links to that country. Nor, apart from his daughter, does he have any real links to Australia. If his daughter is disregarded, this factor is neutral to the assessment of whether Mr Cooper’s visa should be cancelled.

93.     Hardship likely to be experienced by Mr Cooper: I am of the opinion that if Mr Cooper were to be deported, he would suffer significant emotional hardship as a consequence of his separation from his daughter. There is no evidence, and nor is it suggested, that he would suffer any other hardship if deported.

94.     Hardship likely to be experienced by Mr Cooper’s family members resident in Australia: Apart from his daughter, in my view those members of Mr Cooper’s family who remain in Australia would be unaffected if he were to be deported.

95.     Level of education: Mr Cooper left school in Year 12 but did not obtain the Higher School Certificate. This factor in my view is neutral to the assessment of whether his visa should be cancelled.

96.     Notification of possible deportation: The first occasion on which the Department notified Mr Cooper that consideration was being given to cancelling his visa was in May 2010.

97.     This factor weighs against cancelling Mr Cooper’s visa.

Decision

98.     In exercising the discretionary power to cancel Mr Cooper’s visa, I must take into account the four primary considerations and any “other” relevant factor listed in the Direction and undertake a balancing exercise. When undertaking that exercise, I must be guided by the overarching general principle set out in the objectives to the Direction — that is, the protection of the Australian community.

99.     Three of the four primary factors favour Mr Cooper retaining his visa — his young age when he commenced living in Australia, his long period of residence in this country, and the best interests of his daughter. None of the “other” factors are of any particular relevance, except to the extent they overlap with the best interests of the child.

100.   In my view, those factors that weigh in Mr Cooper’s favour, in particular the daughter’s best interests outweigh any risk he poses to the Australian community. In reaching that conclusion, I have taken into account that any re-offending conduct is unlikely to be at the high end of the scale in terms of seriousness, and the risk of re-offend reasonably low. Furthermore, in reaching that decision, I have had regard to the powerful evidence which indicates that Mr Cooper has a good chance of being able to stay off drugs and alcohol. Not least of these is his commitment to his daughter and appreciation that any continued role he might play in her life will be jeopardised if he were to resume using drugs and alcohol.

101.   The circumstances confronting the Minster’s delegate when he made the decision to cancel Mr Cooper’s visa are very different to those now before me. The child’s mother’s drug use has gone into free-fall, resulting in the tragic circumstances which resulted in the child being removed from her care. The experts believe that it is demonstrably in the child’s best interests that she be given the opportunity to maintain a meaningful relationship with her father, something unlikely to be achieved if their only contract is by way of long-distance communication. With her mother incapacitated, the child is now very much alone in the world. If she is to remain in foster care, she would benefit in my opinion by having available to her an adult resident in Australia who can advocate on her behalf.

102.   For all these reasons, the factors that favour Mr Cooper retaining his visa appear to me to, on balance, to outweigh the potential risk he poses to the community. Accordingly, the decision under review is set aside and substituted with a decision that Mr Cooper's visa not be cancelled.

I certify that the 102 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton.

Signed: ..................................[SGD]......................................
  Associate to Senior Member Britton

Dates of Hearing:  20-21 September 2010
Date of Decision:        30 September 2010
Counsel for the Applicant:              Ms A Tibbey
Solicitor for the Applicant:              NSW Legal Aid Commission
Solicitor for the Respondent:         DLA Phillips Fox