Cutugno and Minister for Immigration and Multicultural Affairs
[2006] AATA 1098
•20 December 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 1098
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2006/990
GENERAL APPEALS DIVISION ) Re VITALIANO CUTUGNO Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date20 December 2006
PlaceMelbourne
Decision The decisions of the respondent dated 8 and 9 October 2006 are set aside and in substitution IT IS DECIDED that the visas held by Mr Cutugno not be cancelled. ..............................................
Senior Member
MIGRATION – application for removal of a non-citizen – applicant arrived here from Italy aged 7 and now 46 – abused by his father – commenced offending at aged 13 in 1975 and ceased in 2000 when last imprisoned – multiple serious offences of dishonesty, violence (some drug related) – remarkable transformation in behaviour since release from prison 18 months ago – extensive community and professional support – Direction 21 considered – decisions set aside
Migration Act 1958 (Cth) s501(7) and s501(2) and s499(2A)
REASONS FOR DECISION
20 December 2006
Mr John Handley, Senior Member
1. Mr Cutugno (the applicant) applies to review a decision made by the Deputy State Director (Victoria) of the Department of Immigration and Multicultural Affairs (DIMA) of 8 and 9 October 2006. The decision then made was to cancel visas then held by the applicant.
2. The applicant was born on 2 November 1961 in Italy. He arrived in Australia on 15 May 1969. He was then 7 years of age. He is presently 46 years of age.
3. The applicant was the subject of an earlier visa cancellation which was the subject of contested proceedings in this Tribunal in January 2005 (refer V2004/1214). The decision then made was to affirm a decision made by the Minister’s delegate. Apparently it was subsequently determined that the visa then sought to be cancelled had been incorrectly identified. An officer of the Department then decided to set aside the decision to cancel the visa. An intent to cancel the applicant’s visa was re-invigorated earlier this year, culminating in the delegate’s decision which is under review by these proceedings.
4. In addition to a transitional (permanent) visa held by the applicant, he has also been found to be the holder of an absorbed person’s visa by a decision made on 27 June 2006.
5. A number of documents were lodged prior to the commencement of the hearing by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. Mr Rodan, the applicant’s solicitor, lodged a Statement of Facts and Contentions together with a number of Statutory Declarations, medical and like reports and reports of other persons who have had an association with the applicant. All of those documents will be referred to in these reasons.
6. The records of Victoria Police which were lodged in these proceedings record a long history of criminal offences and convictions relating to the applicant commencing on 7 March 1975 in the Children’s’ Court and concluding on 8 November 2000 in the Victorian County Court. The applicant has an extensive history of convictions relating to offences of dishonesty (burglary, theft, robbery), assault, blackmail, offensive behaviour, use, possess and traffic heroin and other drugs of dependence and cultivate cannabis. The last convictions in the County Court relate to the offences of armed robbery. By reference to the sentencing remarks of His Honour Judge Robertson on 8 November 2000, it appears that the applicant stole a motor vehicle from a suburban shopping centre in February 2000. In so doing he placed the owner of the vehicle – a young female and an 18 month old baby at considerable risk. Those persons managed to escape the vehicle. That vehicle was then used in concert with another person in an armed robbery in a neighbouring suburb. The co-offender possessed and displayed a gun during the robbery. The applicant was convicted and sentenced in relation to the armed robbery charges to a term of four years imprisonment on each charge (one sentence of four years was to be served concurrently for two years with the other sentence). The duration of that period of imprisonment amounts to a substantial criminal record within the meaning of s501(7) of the Migration Act 1958 (the Act). The applicant does not therefore pass the character test under s501(2) of the Act. A discretion is permitted by that section as to whether a visa held by an applicant should be cancelled but the ambit of the discretion is confined to any written directions issued by the Minister pursuant to s499 of the Act. Relevantly the direction in these proceedings is Direction No 21 (Direction 21). Section 499(2A) of the Act compels compliance with that direction.
7. The Minister’s delegate had regard to Direction 21 in making his decision and it was decided that the applicant did not pass the character test. In accepting a report written by officers within the character section of the Minister’s Department in Melbourne, the Deputy State Director recorded in his handwriting on 8 October 2006 (p13):
While Mr Cutugno appears to have been making an effort to rehabilitate himself over the last 18 months since his release from prison this is a relatively short period when placed against a past of 25 years of criminal behaviour. I can’t be confident that he will not offend again and, notwithstanding his lengthy residence in Australia and strong family links, the expectations of the Australian community and its protection are primary considerations.
Those sentiments were echoed in the decision made by the same person on 9 October 2006.
8. The applicant gave evidence in these proceedings and adopted a Statutory Declaration completed by him on 23 November 2006. That Declaration is reproduced as follows (Ex A):
I, Vitaliano (Victor) Cutugno of 30 Butlers Street St Albans 3021 in the state of Victoria, make the following declaration under the Statutory Declarations Act 1959:
1. I was born in Calabria Italy on 2 November 1961.
2. I arrived in Australia on 15 May 1969 with my mother and my brothers and sister. My father was already in Australia at that time. I was 7 years old at the time. Except for a very short holiday overseas in the mid 1970’s I have not left Australia since this time and I consider myself to be Australian.
3. I had a very difficult childhood with a verbally and physically abusive father. As part of the means of dealing with this treatment from my father, I got mixed up in the wrong crowd and committed some criminal acts. I often preferred to spend time in juvenile detention centres than be at home with my father. Eventually I got addicted to drugs and this led to an escalation of my criminal activities. I sincerely regret my past behaviour and the harm this has caused anyone.
4. I have lived in Australia for 38 of my 45 years. I do not have many memories of my early years in Italy and I do not have any ongoing connections with the distant family that lives there. I have always considered Australia to be my home and myself to be Australian. Until I received the Notice of Intention to Consider Cancellation (NOICC) of my visa from the Department of Immigration in October 2004 it had never crossed my mind that I could be removed from my family and my home in Australia. This was a real wake up call for me as I love my family more than anything. My family and I need each other and I cannot imagine being separated from them.
5. At the time I received the NOICC in October 2004 I had already made a commitment to rehabilitation. I was in Fulham Correctional Centre at that time and I had already successfully completed several intensive drug programs, was involved in an ongoing methadone program and I completed an OH&S certificate and an English language course.
6. The Department of Immigration cancelled my visa at that time. I appealed to the Administrative appeals Tribunal but unfortunately the cancellation was upheld. I was told that I was going to be removed from Australia once I finished my sentence. I was devastated.
7. I was moved to Port Phillip Prison at the end of my sentence. I was in hospital when an officer told me that I was to be released. I was confused but I felt that I had been given another chance and I knew that now I was out of prison I would be able to prove myself in society.
8. It is very difficult to get work if you have a police record but I did not want to go on the dole. I had done a lot of damage and I wanted to pay tax and give back to the community. I went to Centrelink and they referred me to James Dredge at Djerriwarrh Employment and Education Services in St Albans. James helped me find a job with Wesley Services working on a contract through the Brimbank Council. I was working on a project restoring a community park. I was doing gardening and paving. I had some experiencing [sic] in gardening in the past. I worked really hard. I was always on time and put in a lot of effort to do a good job. I was happy that I had been given a chance.
9. My parole officer Maxine Cleghorn from the Sunshine Community Correctional Services would come to my work to see what I had achieved. She was very happy with what I was doing.
10. While I was working with Wesley Services I undertook a course in Occupational Health & Safety Activities in the Workplace at RMIT which I completed.
11. Every Friday I would learn first aid through Wesley Services. I was a dedicated student, taking lots of notes. I got my first aid certificate through Wesley.
12. After work I would speak to James about my progress. We shared cups of tea and talked a lot. We became friends and he supported me because he could see the effort I was making to turn my life around.
13. While working at Wesley I volunteered to help work on improvements to a local kindergarten. We built a ramp, put in plants and play equipment. After this was done, they asked me to do an article in the newspaper about what I had achieved. There was [an] article in the local newspaper about me.
14. When my work finished with Wesley Services James got me a job at Preston Market. I started at 5am and finished at 1pm. I often volunteered to do overtime. I was happy to be working. I was a cleaner. I would come in the morning, go to the butchers and clean all the scraps and bones. I would then clean up the area and the fridges and take all the cardboard boxes for recycling. I was trusted by my employers. They gave me keys to the market so I could open in the morning. I used to find various things, including bags of money and I always reported these.
15. The manager of the cleaners was going to retire and they wanted me to take over the role. For this I needed to have a forklift licence. I booked into a course and I was so happy when I passed on 14 December 2005. I felt like I had proved that I could succeed and make something better of my life. I was proud as this was a concrete sign of the change that I had made in my life.
16. I showed the licence to my manager at the market and then in my own time I would practice on the forklift with some of the guys at the market.
17. Unfortunately I was in a car accident on 22 December 2005. I was driving home from my job at the market and I was hit by a truck and then by several cars from behind. My car was written off. I was not at fault at all in the accident and it is extremely unfortunate that it occurred. I was taken to St Vincent’s hospital. As a result of the accident I have a crushed vertebrae. This gives me sever[e] back pain. I can walk but movement is very difficult. I can not bend over. Even with this set back I did not revert to heroin. I did not want to let down all the people that trusted me and I did not want to let down myself. The doctors gave me sleeping tablets and I am taking pain killers but I am proud to say that I have not taken any drugs that are not prescribed.
18. At the moment I cannot work because of the pain and the limited movement. I desperately hope to be able to return to work because I enjoy working and it makes me happy. I feel like I am contributing to society and doing something positive. My doctor, Dr Woodard, has told me that it would take a long time for me to recover but I want to do everything I can to heal as fast as I can because I am very keen to go back to work.
19. I [am] currently in the process of commencing proceedings for a TAC compensation claim relating to the injuries I suffered in the accident.
20. Since my release from prison I have seen my parole officer regularly. Initially it was Maxine and for most of 2006 I have been seeing Jennifer Egan. Jennifer has a lot of experience in corrections and she has told me that she is impressed and is very positive about the changes I have made in my life.
21. I have been attending Voyage Drug and Alcohol Counselling on a volunteer basis since I was released from prison. This is not a condition of my parole but I choose to do this because in the beginning I needed help and now they are a good support and someone to talk to. I go and tell them my problems and they advise me. They also give feedback to my parole officer. As this is a community based service my counsellors have changed several times in the 16 months I have been attending. I was originally seeing Kitty and have done most of my counselling with her. She left because she was pregnant and then I was seeing Marie. Marie left the service a few weeks ago and I have my first appointment with my new counsellor Melissa on 23 November 2006. This service has been especially helpful since the car accident I had in December 2005.
22. I have not taken heroin since I was arrested in late 1999. I have had several opportunities but I do not want to go back to that life. Since my release I have been seeing Dr Woodard on a regular basis for my methadone treatment and to give urine samples to show that I am clean from heroin. I have also seen him in the last year for the pain in my back. Dr Woodard is our family doctor. He takes care of my mother and brother as well and he knows the history of my family very well.
23. Since I was released from prison I have been living with my mother and my brother Agostino (Gus) in our family house in St Albans. They are the most important thing in my life and they are one of the driving forces behind my commitment to rehabilitation. I no longer associate with any of the people I used to know. I spend all of my time with my family, even before the car accident. While I was working I was paying all the bills, taking care of the house and taking care of my mum and brother. Now even though I don’t work I take care of them every day.
24. My mum has already suffered a lot and I do not want to cause her more suffering by being separated from her. My mother has osteoarthritis and over the last few years she has been in a lot of pain and has had difficulty walking. Before I had the accident in December 2005 I would drive my mother to the doctors. My mother has been on the waiting list for a hip replacement for the last two years. A few weeks ago my mother finally had the operation. I was there for her. I went to the hospital every day and prayed for her. I spend time with her and hold her hand and tell her I love her. I take care of things in the house and look after my brother. My mum has always been there for me, even when I was in jail. Now I am giving something positive back to her and she would be devastated if I had to leave. Mum is 77 years old and with her health there is no way that she would be able to travel to Italy to see me if I had to leave. That would break her heart.
25. I also play a vital role in the life of my brother Gus. Gus is schizophrenic. Gus would be lost without me. Since he heard that my visa was cancelled in October 2006 he has been devastated and has tried to kill himself several times. It is only because I intervened that he did not succeed. Although I am younger I am like a father to him and he listens to me. We are very very close and we speak to each other very openly. He tells me all his problems and I try to help him. He tells me that there is no one else that he can speak to in the same way that he speaks to me. While I could drive I would take him to Dr Woodard for the injections he requires to control his schizophrenia. Even now that I cannot drive I always go with him into the room with the doctor to make sure that he takes the medication. There are times when he forgets to take the medication and I will always remind him. I am extremely worried about what will happen to Gus if I have to leave Australia.
26. We have quite a large family here, with uncles, aunts, cousins, my brother and sister and all of their children. I get along well with my other family members but I have a special bond with my mum and Gus. My other brother and sister are married and have their own families to care for. They help my mum and brother but they have their own commitments as well. They cannot take on the level of responsibility I have towards my mum and my brother.
27. In the last 16 months my life has changed dramatically for the better. Although things have been tough at times, especially when I had the car accident I have never even considered going back on drugs. That life got me no where and I refused to give in and return to it. There are days when I get depressed but I still get up and worked when I could and I do everything I can to take care of my mum and brother. I am committed to the changes I have made in my life. I have worked so hard to get where I am and I do not want to throw it all away for nothing. I think that I have proven to my family, my parole officer and most of all to myself that the changes I have made are genuine and lasting. I love my mum and brother more than anything and I will not do anything to risk not seeing them again.
28. There is nothing for me in Italy. I do not know what drug support services are available and I do not know anyone that can help me with my back. I have no family who can help me and I have limited Italian language skills as I came to Australia when I was so young. I fear that I will be left homeless on the street while my family is back in Australia worried about my safety.
9. In evidence, the applicant was visibly anxious and upset. He was profusely sweating and exhibited the signs of stress that other witnesses in these proceedings were to say later have been a feature of his presentation to them in recent months.
10. The applicant said that he no longer associated with persons with whom he had previously been involved in criminal activity. He said he has seen those persons in the Western suburbs but he has then turned and walked away. He now prefers only to have an association with his mother, his brother and sister, his uncle and aunties, nephews and nieces. He also has regular contact with his parole officer, Ms Egan and with Mr Dredge who has assisted him in securing employment. He also has frequent contact with Dr Woodard who prescribes methadone.
11. The applicant said that he was very keen to keep out of trouble because he has learnt (his) lesson. He acknowledged that he had been given parole as a result of previous convictions but had subsequently offended. He said that he was then drug dependent and was then associating with other persons who were engaged in criminal activity. He said that he no longer used heroin or other drugs except prescribed medication.
12. In cross-examination, the applicant said that he could not recall being drug free in the mid 1990’s but did acknowledge that after a motor car accident in either 1997 or 1998, he did return to using heroin. He said that he was not then being treated by Dr Woodard who has been treating him since his release from Fulham Prison early last year. He said that he was now enjoying support from a number of persons and was taking methadone. He said he has not returned to heroin use as a result of a motor car accident in December 2005 and was confident that he would not return to using heroin. He said he was committed to supporting his brother Agostino and his mother.
james dredge
13. Mr Dredge is the co-ordinator of the Correctional Services Employment Pilot Program which is funded by the Victorian Department of Justice. The program works with persons who are either on parole or who are under a community based order. Mr Dredge prepared a statement in support of the applicant which was received into evidence. That statement is reproduced as follows (Ex C):
I am writing in support of Victor Cutugno’s application to stay in Australia and become an Australian citizen.
I have worked intensively with Victor since his release from prison in early 2005, and in this time have seen Victor dedicate himself to maintaining a law abiding lifestyle.
Victor successfully completed a 16 week employment program with Wesley Mission and the City of Brimbank, and on completion, he gained full time mainstream employment as a cleaner with the Prahran Market. He approached this employment with dedication and vigour and for his efforts received the acknowledgement and support of his employer. Unfortunately on Christmas Eve 2005, Victor was involved in a car accident on the way home from work and was hospitalised with 2 fractured vertebrae in his spine. Since this time he has been on TAC payments.
In the 18 months I have known Victor he has never swayed from his desire to live a crime free mainstream lifestyle. He has not returned to crime or drug use, and actively seeks help when he needs it.
The recent period of home detention has placed enormous stress on both Victor and his family. In this period Victor has met all of his obligations to Community Corrections, the TAC, and DIMMA. He has also maintained his personal counselling appointments and his contact with me. His ability to manage this difficult situation without turning to drugs or crime is for me, a clear indication of the success of Victor’s personal rehabilitation.
14. In evidence, Mr Dredge said that he initially had contact with the applicant on two or three occasions per week after first contact but in recent times it has been at approximately one occasion per week. He said that he developed a strong rapport with the applicant and he knew him well. He also had contact with members of his family and had made himself available to the applicant at any time. He regarded the applicant’s family as being dysfunctional but which would become fragmented in the event that he was removed from the Australian community. He was aware that his brother was schizophrenic and both he and his mother were dependent. They would therefore lose his support in the event that he returned to Italy.
15. Mr Dredge was satisfied that the applicant has not consumed heroin since his release from prison. He said that he had worked inside the prison system for four years and had worked for three years in his current position. He said that he could spot a heroin user and there has not been an occasion where he has observed the applicant to have used or have been under the influence of heroin.
16. Mr Dredge had been instrumental in securing employment for the applicant. Employment had been undertaken prior to the applicant suffering severe injuries in a motor vehicle accident in December 2005. He produced the annual report of the Djerriwarrh Employment & Education Services for the year ending 2005 which contained a photograph of the applicant at work. He said that it was significant that the applicant was photographed for the purposes of that report because he was regarded as being the success story of our program. He described the applicant as previously being an entrenched criminal who made an effort to rehabilitate himself and did so successfully. He also said that he was aware of reports which indicated that for male persons in the age bracket between 40 and 45 years there was a likelihood of an attempt to rehabilitate and to grow out of being criminals.
17. In cross-examination, Mr Dredge said that most offenders are in the 15 to 30 age bracket and after that they taper off. He acknowledged that the applicant was 39 when he last offended in 2000 but said that since his release from prison 18 months ago, he had not re-offended, he had found employment and had not taken drugs.
jennifer egan
18. Ms Egan is a Senior Community Corrections Officer with the Department of Justice. The position held by her was previously known as a parole officer. She has been in this position with the Department of Justice for the last five years and has supervised the applicant since February 2006. She prepared a letter in support of the applicant dated 17 November 2006 which was received into evidence. It is reproduced in the following terms (Ex D):
The information detailed below is provided at your request, and deals specifically with Mr Cutugno’s compliance/rehabilitation on his Parole Order and his re-integration into the community under the supervision of this Service. This Service has sought and received the permission of Mr Cutugno and the Adult Parole Board to disclose the facts relating to his Parole Order.
Mr Cutugno was released on parole from Port Phillip Prison on 12th April 2005. Mr Cutugno’s parole expires on 22nd March 2007. For the period 12th April 2005 until 11th July 2005 Mr Cutugno was subject to a period of intensive parole which consisted of eight hours community work per week at a nominated community work site, one attendance/sign-on appointment at the Sunshine location, as well as one supervision appointment with his case manager at the same location; both location attendances were on separate days. During this three month period, Mr Cutugno also attended weekly drug and alcohol counselling on one day at Voyage Drug and Alcohol Counselling Services.
Mr Cutugno acquitted his period of intensive parole in an exemplary manner: no absences have been recorded by this Service, and file notes clearly indicate his level of engagement was high. Mr Cutugno’s motivation to successfully rehabilitate himself has continued to date, despite the setback of a serious car accident in December 2005, whilst on his way to work. At the time of this accident (in which Mr Cutugno’s vehicle was severely damaged by another vehicle) Mr Cutugno has been successful in securing ongoing, paid employment, which necessitated him working long hours. Mr Cutugno is currently receiving TAC benefits as a result of this accident.
Mr Cutugno continues to present to this Service on a fortnightly basis for face to face supervision as well as attending fortnightly drug and alcohol counselling with Voyage. Mr Cutugno is methadone compliant (100 ml per day), and has been since his release on parole. This methadone regime according to his doctor, Dr A Woodard, assists in controlling the present level of back pain brought about by Mr Cutugno’s accident. Mr Cutugno is currently on the waiting list for a pain management clinic, approved by TAC.
At the time of writing this letter, Mr Cutugno continues to exhibit excellent compliance with his Parole Order, he remains abstinent from all illicit substances as well as remaining offence free. Mr Cutugno has had no contact with Victoria Police. It remains the opinion of the writer that Mr Cutugno continues to be committed to his ongoing abstinence and rehabilitation, notwithstanding his current situation. The writer has taken over the supervision of Mr Cutugno’s Parole Order since February 2006 and is well aware of the matters which he is facing at this present time. Mr Cutugno has been very clear with the writer when discussing details of his current situation.
Mr Cutugno’s family have proved to be a very strong support basis for his ongoing rehabilitation. The writer, in the course of her duties in managing this Parole Order, has visited Mr Cutugno’s home, in the company of other officer/s, and observed interaction between various family members and Mr Cutugno. Mr Cutugno’s family, through their ongoing encouragement and support, continue to greatly assist with Mr Cutugno’s rehabilitation and compliance.
It should be noted the Adult Parole Board are satisfied with Mr Cutugno’s application to and compliance with his Parole Order. Mr Cutugno has made, and continues to make, significant progress which has allowed him to re-integrate back into the community as a productive individual.
19. In evidence Ms Egan said that she initially saw the applicant every two weeks but because of the stress that he has suffered by reason of these proceedings, she has seen him on a weekly basis in recent times. She said that the applicant has found these proceedings and the risk of removal from Australia to be extraordinarily stressful. She said he is a person who does have difficulty expressing emotions and whilst in the past she is aware that he has reverted to drug use when he has been unable to cope, he has, since release from prison, managed under the supervision of other persons. She said his attendance at a number of programs initiated and encouraged by the Department had been excellent and he had never missed a visit. She said that the applicant has learnt that he can be of benefit and value to his family and to the community. She regarded him as one of very few people that she could recall who had made every effort to rehabilitate. She said that he now appreciates the value of honestly earning a pay packet and he now enjoys a level of satisfaction with his life that he had not previously experienced. She said he is drug free, he supports his family and he now understands what it means to be a responsible member of the community. She said the risk of him being removed from the Australian community had been a sobering thought for him and he has been given extra assistance in rehabilitation programs to allow him to cope with the stress that he has recently suffered.
20. Ms Egan said that the Department of Justice used a tool known as VISAT being the acronym for Victorian Intervention Statistical Analysis Tool. She said it was produced after 15 years of empirical and longitudinal studies of persons who had offended. She said the tool demonstrates that the rate of re-offending of male persons drops significantly over the age of 39 or 40.
21. In cross-examination, Ms Egan said that she was aware that the applicant had been drug free in the mid 1990’s when he was then working and earning. She said that he was not then earning all his income from honest activity but did acknowledge that he had employment with the Sunshine Council. She also acknowledged that he had support from his family but said he was not then under the threat of deportation, he was then continuing to mix with criminal associates and was under their influence. She said that the applicant has broken the pattern of association with those persons and the service now offered by the Community Corrections Services is much more comprehensive than previously. She said that previously the service was directed towards compliance with parole conditions only whereas more recently – and in the case of the applicant – the service assists in the provision of rehabilitation, drug and alcohol counselling and securing employment.
22. Ms Egan said that the VISAT tool asks a number of questions designed to assess the risk of a person re-offending. Those questions concern (for example) whether persons have previously breached parole and the number of times they had been in prison. The result is known as a static risk and when the applicant was assessed by this tool in Fulham Prison, he was found to be a high risk. The VISAT tool also provides an ancillary tool where a number of other factors are considered by the questions asked and the examination is repeated every two months. Since February 2006, this part of the testing has recorded the applicant as being at low risk of re-offending. That is principally by reason of his age now being 46.
23. Ms Egan said that the applicant was due for release from parole in March 2007 from which date she would no longer have contact with him. However, in January or February next year a conference will be convened to devise exit plans and other strategies to ensure the applicant continues to have support available to him.
dr andrew woodard
24. Dr Woodard is a medical practitioner in general practice in St Albans. He has written a number of reports in support of the applicant which are found within the G Documents. He also wrote a five page report specifically for the purposes of these proceedings. The entirety of the report – which was adopted as his evidence – need not be reproduced except that it records that he has been treating the applicant, his brother and the applicant’s mother for many years. He did record that
The Cutugno family is severely socially disadvantaged and all suffer from chronic medical illness. Victor, Agostino and his mother live together and are extremely dependent on one and other. Until recently Victor was main provider for the family and performed most of the household duties. However, he has been severely incapacitated and in pain since fracturing his spine in a motor car accident approximately 12 months ago.
25. In evidence Dr Woodard said that he had known the Cutugno family for approximately 15 years and has contact with the applicant frequently since his release from gaol last year. He said that the applicant and his brother Agostino had been known to most doctors in the area – they were doctor shopping. Later he explained that the applicant and his brother had been previously known as persons who would seek to obtain prescribed painkillers and benzodiazepines.
26. Dr Woodard said that he is a registered methadone prescriber and has been prescribing methadone to the applicant from the day after he was released from prison. He said that the applicant had previously been prescribed methadone whilst in Fulham Prison to treat his heroin addiction. Dr Woodard also treats the applicant’s brother Agostino to whom methadone is also prescribed. Dr Woodard said that he has contact with the applicant’s mother on a frequent basis because she has suffered severe osteoarthritis and had been on a waiting list for approximately two years for hip replacement which was undertaken approximately five weeks ago. Additionally, Dr Woodard treats the applicant for the effects of a severe crush fracture of a thoracic vertebrae following a motor car accident in December 2005.
27. Dr Woodard said that Agostino is a very brittle schizophrenic with a long history of substance abuse. He said that he administers anti-psychotic injections twice weekly because Agostino handles stress badly. He said he recently ceased taking medication because of the stress of the potential of the applicant’s deportation. He said that Agostino is also suicidal and has threatened self harm. He said Agostino is dependent on the applicant and there have been occasions in the past when the applicant has been imprisoned and Agostino deliberately offended in order to be imprisoned under the supervision and care of his brother.
28. Dr Woodard said the applicant has had the benefit of a number of professional persons who have supported, supervised and rehabilitated him since his release from prison. Those persons have also been of assistance to other members of his family. He said that at the expiration of his parole (when Ms Egan will no longer be able to assist him), the applicant could benefit by attending psychology services available in the Western suburbs community health centre. Dr Woodard said that he would assist in facilitating such a referral.
29. Dr Woodard said the applicant has a good chance of returning to work – despite his back injury – because he is well motivated. He acknowledged that he may have difficulty securing employment which involves frequent bending or lifting but he would be able to undertake work involving the driving of a fork lift for which he is qualified.
30. Dr Woodard said the applicant’s family is dependent on him. He said the applicant arranges for Agostino to attend regularly for treatment and the administration of medication and if the applicant is removed from the Australian community, Agostino would be devastated and there is an extreme risk of his health deteriorating. Additionally he said the applicant cares for his mother who is totally dependent on him. If removed from Australia and returned to Italy, Dr Woodard thought that the applicant’s coping mechanisms would not withstand the absence of his family and others who have given him support. He did not think that the applicant would have any network available to him in Italy who would support him.
31. On balance, Dr Woodard thought the applicant had changed dramatically since his release from prison. He was aware that the applicant had been within a drug circle in the Western suburbs and he thought that something must have happened to him in gaol to make him wake up.
32. In cross-examination, Dr Woodard acknowledged that the applicant is a person with low IQ. Nonetheless he thought that his chances of successfully being rehabilitated were high because he had demonstrated commitment. Additionally, he now had a focus towards providing for, and being available to his family, that he was no longer impulsive and did not make reckless decisions.
33. In answer to some questions from me, Dr Woodard said that initially he was prescribing methadone at 70mgs per week but had increased it to 100mgs per week – because of an analgesic effect – subsequent to the motor car accident of December 2005. He said that over time the dosage of methadone will decrease but he would expect that the applicant will continue to require its administration for many years. He said the drug problem in the Western suburbs was never as bad as it was now and the applicant will need all available assistance and encouragement to refrain from having any association with persons who possess or traffic heroin. He thought that if removed to Italy that the applicant would not be able to cope and was at risk of returning to drug use as a coping mechanism.
edwin kleynhans
34. Mr Kleynhans is a clinical psychologist who assessed the applicant, his brother Agostino and his mother over a period of three hours on 24 November 2006. He provided a report of 13 pages which need not be reproduced in whole but concluded that a combination of a dysfunctional family background and physical and verbal abuse by the applicant’s father contributed to the mental health problem suffered by both the applicant and his brother Agostino. Additionally, he was of the opinion that the applicant suffered cognitive deficits causing him to be vulnerable and having poor coping skills. He thought the applicant was an easy target for drugs and crime. Whilst acknowledging that members of the Melbourne community suffered by the applicant’s criminal activity, he thought the applicant would be vulnerable if he was returned to Italy where he does not speak Calabrese and it is likely that he would resort to his former addictive behaviour, he would be without support services and was at risk of offending. If deported, he would no longer be able to care for his mother and his brother and his rehabilitation would be disrupted. He thought that ongoing drug treatment and counselling form an essential part of his rehabilitation and should be long term.
35. In evidence, Mr Kleynhans said that by reason of the applicant’s poor coping skills, he resorted to crime and drug use. He thought persons with a low IQ – as in the case of the applicant – were more impressionable and vulnerable to criminal or drug activity. He said drug users engage in criminal behaviour because they need to find money in order to acquire drugs. He therefore was of the belief that there was a close association between drug abuse and criminal activity. By reason therefore of his low IQ and his vulnerability, he was of the opinion that the applicant needed to have ongoing support from professionals who currently assist him and will need support for many years into the future. Whilst not discounting the risk of re‑offending, he thought that with continued support and with appropriate mechanisms for support in place, the chances of re-offending would be considerably lessened. He said that appropriate support services could assist the applicant in learning life skills.
36. Mr Kleynhans was of the opinion that the risk of deportation was frightening to the applicant and was of itself a deterrent from committing crime. He said that the applicant was aware that if he re-offended in future that the Minister could re-activate the process of visa cancellation.
other witnesses
37. A number of persons who attended the hearing were not required for cross‑examination but who had previously prepared Declarations which were all received into evidence. Those persons were the applicant’s mother, Mrs Teresa Cutugno, the applicant’s brother Mr Tony Cutugno, and other brother Agostino Cutugno, the applicant’s sister-in-law, Heather Cutugno, his nephew, Joseph Cutugno, his friends Agostino Pedulla and Jonnie Missos. Letters were also received from Ms McGuffie a counsellor with the Voyage Alcohol and Other Drug Service and from Mr Risteski and Mr Kelly a disability services co-ordinator and projects co-ordinator respectively with Wesley Services being a Division of the Wesley Mission in Melbourne.
direction 21
38. The primary considerations compelled by Direction 21 are the protection of the Australian community and members of the community, the expectations of the Australian community and the best interests of a child or children involving a parental or other close relationship. The latter consideration is not relevant in this review because the applicant does not have children nor does he have a close relationship between a child or children. The applicant does have nephews and nieces and whilst there is a relationship between him and those persons, discussion upon that issue will be found later in these reasons.
protection of the australian community and members of the community
39. This criteria has a number of sub-parts comprising seriousness and nature of the conduct, likelihood of conduct being repeated and whether visa refusal or cancellation may prevent or discourage similar conduct.
40. The Direction records specific criteria regarded by the Government as very serious when assessing the seriousness and nature of the conduct. It also refers to the sentences imposed as an indication of the seriousness of the conduct together with the extent of a person’s criminal record, the repugnance of the crime and in the exercise of the discretion on this part, mitigating factors must be considered.
41. The types of offences regarded by the Government as being very serious are offences involving the possession and trafficking of illicit drugs. Specifically offences arising out of dependency on heroin are regarded by the Direction as being of particular concern to the Government and to the community.
42. The applicant has a number of convictions for use, possess and traffic of heroin and use and possession of other drugs of dependence. It would appear from the criminal record lodged by the Victoria Police and found within the G Documents that the first drug related conviction occurred in 1986.
43. Other offences regarded as being serious (and applicable in the present case) are – armed robbery, home invasion, blackmail and crimes involving the threat of violence.
44. The applicant has a considerable criminal history commencing in 1975 when he was 13 years of age. He was last convicted in 2000. His criminal history is extensive and has involved lengthy periods of incarceration, initially in youth training centres when he was a teenager and later in main stream adult prisons. The applicant has been convicted on a number of occasions for heroin related offences and other offences involving drugs of dependence. He has multiple convictions for offences of dishonesty involving burglary, theft, robbery and handling stolen goods. He has a number of offences associated with driving motor vehicles whilst unlicensed and use of an offensive weapon. He has breached parole on occasions and has escaped from a youth training centre. His most recent conviction involved the theft of a motor car and later using that vehicle to commit an armed robbery in concert with another person. All of those offences are very serious. Members of the community have suffered loss, injury and fright. There is no evidence of restitution. Members of the Australian community would find the applicant’s prior behaviour to be repugnant. Many would say that he should be removed from Australia. I would place considerable weight on this part of the discretion.
45. But many other people would acknowledge that the applicant commenced to offend at an early age because, being on the streets to avoid an abusive father, he fell into crime. He was then largely unsupervised, poorly educated and lacking direction. He has been incarcerated and therefore punished. Much of his formative years would have been spent inside the prison system. From 1986, much of his criminal activity was associated with his dependence on drugs of addiction. That is more in the nature of explanation than excuse. I would attract some weight to the above in mitigation.
liklihood of conduct being repeated
46. Whether there is a likelihood that conduct may be repeated does involve a forecast of the applicant’s future behaviour. That will be achieved by an examination of his past behaviour but also by consideration of the evidence heard in these and the earlier proceedings.
47. This review does not concern a review of the decision made by a Tribunal Member in the earlier proceedings (V2004/1214). In that application it was decided to affirm a decision made by the Minister to cancel the applicant’s visa. The applicant however at that time (January 2005) was in prison. It was then acknowledge that the applicant had attempted to rehabilitate and cease criminal activity but having regard to his previous history of offending it was considered that the risk of committing further crimes was high (paragraph 98). At paragraph 105 it was decided that the threat of deportation was unlikely to provide any deterrent to the applicant (paragraph 105). At paragraph 106 it was considered, on balance that the risk of re‑offending and committing further crimes amounted to disregard for members of the Australian community and the need therefore to protect that community outweighed the difficulties that the applicant would face in Italy in the event of his removal from Australia.
48. Since that decision was delivered upon the evidence heard in these proceedings and from the documents read which were tendered for these proceedings, the applicant is clearly a remarkably different person. On the day after his release from prison, he attended Dr Woodard to ensure that his methadone administration continued. He has co-operated with Ms Egan and Mr Dredge. Those persons attended the hearing and in evidence said the applicant was exemplary and successful in his rehabilitation. The applicant has now been out of prison for approximately 18 months. He has not used drugs. He has not re‑offended. He does not associate with other members of the criminal fraternity and has actively sought to avoid them. He is committed to his mother and his brother Agostino. On present indications I think the likelihood of him re‑offending and therefore repeating his previous criminal activity is unlikely but it is dependent on him continuing to take advantage of the network of persons who do support him and are available to him. That he obtained employment and was placed in a position of trust prior to his motor car accident in December 2005, indicates to me that he has made a genuine attempt to earn income legitimately and not have to resort to crime. On balance therefore I would attach very little weight to the likelihood of conduct being repeated.
49. I acknowledge that Direction 21 compels consideration of the relevance of prior criminal history and the frequency of prior convictions. The applicant has not offended since 2000, his conduct since release 18 months ago has been exemplary and with continued rehabilitation I would expect that he would make a positive contribution to the community, to his family and to himself thereby increasing his own self-esteem and further reducing the risk of re‑offending.
general deterrents
50. I cannot conclude that there is a likelihood that visa cancellation would prevent like offences by other persons. This is a criteria under the first part of primary considerations within Direction 21. As a bald proposition I would say that there would be little controversy in a finding that persons who resided in Australia on a visa might refrain from crime if they understood that being convicted for such crime could result in visa cancellation. Additionally, it might be stated that persons who do reside in Australia under a visa are at risk of being removed if they commit crime. The applicant himself is well aware of that. I doubt that I can add anything more useful to this discussion.
expectations of the australian community
51. This part of the Direction records that it may be appropriate to refuse or cancel a visa where a non-citizen has breached, or if there is a significant risk that they will breach the trust that the Australian community would have that Australian laws would be obeyed. The criteria also records that removal of the non-citizen may be appropriate by regard to character concerns or offences committed where there would be an expectation by the Australian community that they should be removed from Australia.
52. I have little doubt that the Australian community expects all of its residents to obey Australian laws, no less persons who reside here under a visa. If offences are committed because domestic laws have been broken, a Government responsible for immigration policy may rightly exercise its power to remove that person. I would also acknowledge that a certain proportion of the Australian community would expect that a non-citizen who has committed offences – particularly if they are serious and if they are repeated should be removed. In the overall exercise of the discretion under Direction 21 I would place considerable weight on this part. But this part of Direction 21 compels that regard also be given to the non-citizen’s circumstances. The language used – may be appropriate (to remove) – clearly points to the need for balance. In the proper exercise of the discretion, after weighing all of the evidence I consider that fair and open minded Australian citizens would think that if the applicant is true to his word about reform, that he be given a fair go and not be banished from the community in which he has resided for the last 38 years.
other considerations
53. This criteria permits a largely unfetted opportunity to consider a range of other matters that should be considered in the exercise of the discretion. In the present case the relevant parts relate to the degree of hardship that would be caused to family members if the person was removed. Consideration should be given to the composition of the non-citizen’s family in Australia (and overseas if applicable), the nature and seriousness of the offences that have been committed, any evidence of rehabilitation or recent good conduct, whether the visa in issue is permanent and whether the non-citizen has previously been advised by an officer of the Minister’s Department of the deportation provisions under s501 of the Act.
54. As alluded to earlier in these reasons, the applicant is now – at the age of 45 – and for the first time in his life – chosen to undertake a dominant role in the care and welfare of his elderly mother and his brother. At the same time the applicant himself is committed to a process of self-rehabilitation and personal growth. Those dynamics are to be considered in the light of him having been released from prison approximately 18 months ago and having work in which he was successfully engaged being denied to him by reason of serious injury suffered in a motor vehicle accident in December 2005.
55. Before early 2005, the applicant had spent a considerable part of his life in Australia in corrective institutions both as a minor and as an adult. He offended Australian laws, was frequently before the Courts, was equally or almost as frequently incarcerated and used heroin. As Dr Woodard indicated it appears that the risk of removal from Australia became apparent to the applicant before he was released from prison because from that day his life has been remarkably different.
56. Within a matter of days of being released from prison, the applicant attended Dr Woodard’s clinic and he continues to attend on a regular basis to ensure that methadone is prescribed and administered. He has remained drug free. He has not re-offended and has earned the trust and respect – in deed admiration – of Mr Dredge and Ms Egan by reason of his pursuit of rehabilitation and participation in drug and alcohol programs. He and his family have been observed and his transition into a near normal role in society has been the subject of more than favourable comment. As Mr Dredge remarked in evidence, the applicant has been the success story of our program – he was an entrenched criminal who made an effort to rehabilitate himself and did so successfully. Ms Egan remarked in evidence that the applicant’s compliance with rehabilitation programs has been excellent – he never missed an engagement visit.
57. The applicant was engaged in employment and was working on a full-time basis at the Prahran Market until Christmas Eve 2005 when he suffered serious injuries in a motor vehicle accident on his way home. He apparently earned the trust of his employer because he was given keys to open and close the business on a daily basis. He entered into a program to obtain a fork lift drivers’ licence and practice his fork lift driving skills during rest breaks. He was then earning an income on a regular basis which prior to his incarceration did not occur. Income previously earned was largely by illegal means. The income that he did legitimately earn was used to provide for his mother and his brother. While some benefits have been received from the Transport Accident Commission subsequent to the accident, it is unfortunately no substitute for having regular employment and the ability to reassure himself and others that he is a capable and trustworthy member of the Australian community.
58. In the past, the applicant had resorted to heroin or other drugs of dependence when he has been in times stress or has been unable to cope. That pattern of behaviour has not been repeated since December 2005. That the applicant has suffered a serious back injury is beyond doubt because he endured serious crush fractures of his thoracic spine and is under the care of the neurology department at Western Hospital. That the only medication that he consumes is that which is prescribed by Dr Woodard.
59. In the reasons for decision following the hearing of the previous application – bearing in mind again that the applicant was then in custody – it was decided that having regard to the history of offending and re-offending the chances of Mr Cutugno being able to provide the necessary care for his mother and Agostino are low. From what has been heard in these proceedings and read from the documents tendered, the applicant in fact in the last 18 months since he was released from prison has been an indispensable and significant carer of both his mother and his brother Agostino.
60. Mrs Cutugno attended the hearing but was not required for cross-examination. Mr Gilbert on behalf of the applicant tendered a statement completed by her under Statutory Declaration on 23 November 2006. Mrs Cutugno then recorded – and I have no reason to doubt – that she has had a number of discussions with her son where he has expressed verbally his commitment to her, his preference to change and his undertaking to desist from committing crimes and taking drugs. She recorded that he is at home most of the time and is of assistance to her. He has made life easier and more enjoyable for her, that he cares for her and visited her daily when she was in hospital when she was recently admitted for hip replacement. The behaviour on the part of the applicant as described by his mother did not occur and could not reasonably be expected to occur prior to being imprisoned in 2000.
61. Additionally, it would appear that Agostino is dependent on the applicant. He was described by Dr Woodard as being a brittle schizophrenic who is dependent upon the applicant to take him to Dr Woodard on a regular basis for administration of anti-psychotic medication and to be administered methadone. It appears that the relationship between Mr Cutugno and Agostino is in the nature of father and son rather than as brothers. Evidence was heard that Agostino has apparently offended in the past when the applicant has been imprisoned in the expectation, or hope, that he – Agostino – would be incarcerated into the same institution and remain physically close to his brother.
62. In the circumstances of the unique relationship therefore existing between the applicant and his mother and brother, his removal from Australia would have a devastating affect upon them. Agostino is apparently suicidal and has been of considerable concern to Dr Woodard. The applicant’s mother is elderly and it is unlikely that she would ever see her son again. The family as it currently exists, would be decimated and despite other brothers, sisters, nephews and nieces living close to Mrs Cutugno and to each other, the family constellation would be irreparably fragmented.
63. No less of course would removal from Australia cause an overwhelmingly negative impact upon the applicant. He would be removed to a country which he left at the age of seven and which he barely remembers. He does not speak Calabrese. He would be placed into an environment which is alien to him, he would be denied the support services which are presently available to him and there is no evidence that he would qualify for the prescription of methadone. The remarkable progress that he has made in the last 18 months would suddenly be halted. There is nothing to indicate that in the absence of his family and his network of support that he would maintain the relative stability that he has demonstrated in the last 18 months. Indeed the reverse is more likely.
64. I have every confidence that the applicant now understands that if he re‑offends he is likely to be brought to the attention of the Minister and similar proceedings as these could be re‑invigorated. It is most unlikely that if he did re‑offend and was the subject of a visa cancellation that he would ever earn the trust or favourable discretion by any Tribunal or Court and it is most likely that his visa would be cancelled and he would be removed from Australia.
65. I also have every confidence that the applicant would not revert to re‑offending. He would let himself down and many other people around him who have given him support and encouragement. Virtually for the first time in his life, he now has the opportunity to continue to build upon the good progress he has made in the last 18 months. In my view he should be given the opportunity to remain in Australia. It is true that the conduct of the applicant which has given rise to this part of this discussion has occurred in the last 18 months, that is, since he has been released from prison. It may be reasonably thought, as did the Minister’s delegate, that this was of insufficient duration when compared against the duration of his previous criminal behaviour. But there is no other period capable of comparison. It is only in the last 18 months that the applicant has demonstrated a level of maturity and commitment that is so remarkable it attracted the favourable assessment of the persons who gave, or were prepared to give evidence, in these proceedings. These comments are not to be understood as a criticism of the delegate’s decision. As so often happens in administrative review, evidence of a quality and quantity is made available and tested in a manner and by a process not available to decision‑makers. No less in the present case where in the previous application the applicant was incarcerated but in these proceedings, he had been in the community for 18 months. That is, he has been capable of making achievements which would previously have been impossible.
66. I am satisfied in all of the circumstances that considerable weight should be given to this part of Direction 21 in the exercise of the discretion.
67. When the positive aspects of the applicant are weighed in favour of his negative past behaviour and its affect upon the Australian community, I am satisfied that the scales should be tipped in his favour.
68. In the circumstances I am of the view that the decisions under review should therefore be set aside.
I certify that the 68 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior MemberSigned: .....................................................................................
Personal AssistantDate of Hearing 11 December 2006
Date of Decision 20 December 2006
Counsel for the Applicant Mr G Gilbert
Solicitor for the Applicant Erskine Rodan
Solicitor for the Respondent Mr T Eteuati, Clayton Utz
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