Cutugno and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 24
•12 January 2005
CATCHWORDS – IMMIGRATION – visa – cancellation - character test – failure of character test - whether discretion should be exercised to cancel visa – whether Tribunal may request and have regard to a report not given within the compass of s. 500 of the Migration Act 1958 - decision affirmed.
Administrative Appeals Tribunal Act 1975 ss. 33(1), 37, 40
Migration Act 1958 ss. 31(1), 31(2), 31(3), 499, 500, 501(2), 501(6), 500(6H), 500(6J), 500(6K), 501(7), 501(12), 501G
Migration Regulations 1994 Schedule 2
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Goldie v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 378; (2001) 33 AAR 446; [2001] FCA 1318
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Re Carmichael and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1024
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
DECISION AND REASONS FOR DECISION [2005] AATA 24
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2004/1214
GENERAL ADMINISTRATIVE DIVISION )
Re VITALIANO CUTUGNO
Applicant
AndMINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 12 January 2005
Place: Melbourne
Decision:The Tribunal affirms the decision of the respondent dated 13 October 2004.
S A FORGIE
Deputy President
REASONS FOR DECISION
The respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (“Minister”), cancelled the Migrant Visa (“visa”) held by the applicant, Vitaliano Cutugno (also known as Victor Cutugno). He did so on 13 October 2004 after concluding that Mr Cutugno does not pass the character test under s. 501(6) of the Migration Act 1958 (“Act”). I have also decided that Mr Cutugno does not pass the character test and have decided that the discretion inherent in s. 501(2) should not be exercised in his favour. Consequently, I have affirmed the Minister’s decision. This means that Mr Cutugno’s visa continues to be cancelled.
At the hearing, Mr Cutugno was represented by Ms Rasheva of counsel and the Minister was represented by her solicitor, Ms Petre. I had regard to the G documents lodged pursuant to s. 501G of the Act (“G documents”) as well as to written statement and a report dated 20 December 2004 by Mr Ian Joblin, Forensic Psychologist, (“2004 report”) and a note from Mr Cutugno’s case officer at the Fulham Correctional Centre (“Fulham”), Mr or Ms Starr. I also had regard to a report by Mr Joblin dated 25 September 2000 (“2000 report”) and give reasons for doing so. Oral evidence was given by Mr Cutugno in support of his case together with his mother, Mrs Teresa Cutugno, his sister, Mrs Rosa Marzano and Mr Joblin. No oral evidence was called on behalf the Minister.
ISSUES
As Mr Cutugno does not pass the character test set out in s. 501(6) of the Act because he has a substantial criminal record, the only issue in this case is issue is whether the discretion in s. 501(2) should be exercised to cancel his visa.
THE EXTENT TO WHICH REGARD MAY BE HAD TO MR JOBLIN’S EVIDENCE
During the course of his evidence, Mr Joblin referred to his 2000 report. He had prepared it prior to Judge Robertson’s sentencing Mr Cutugno and his Honour referred to it in his sentencing remarks. When I asked for that report, Ms Petre objected on the basis that it had not been provided to the Minister two clear business days before the hearing. That is contrary to ss. 500(6H) and (6J). Section 500 is intended to ensure that that Minister is aware of all of the material that will be led in support of an applicant’s case. Ms Rasheva submitted that the report was not submitted in support of Mr Cutugno’s case. Indeed, Mr Cutugno had been aware of it but had elected not to provide it. The Minister cannot be surprised because the report is referred to in Judge Robertson’s sentencing remarks. Had she chosen to, she could have obtained the report.
The statutory scheme, of which ss. 500(6H) and (6J) is a part, was summarised by Gray J, with whom RD Nicholson and Stone JJ concurred, in Goldie v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 378; (2001) 33 AAR 446; [2001] FCA 1318 (“Goldie”):
“25 The scheme for dealing with applications for review under s 500 of the Migration Act has at its heart subss (6H) and (6J). These subsections impose serious restrictions on an applicant for review. The Tribunal is obliged not to have regard to any information presented orally, or to any documents submitted, in support of the applicant's case unless the Minister has had two business days’ notice of the information or the document before the hearing. The purpose of these drastic provisions is apparent. The Minister is to be given an opportunity to answer the case to be put by the applicant for review without the necessity of an adjournment of the hearing. The purpose of the scheme in s 500 is that an applicant for review should not be able to change the nature of his or her case, catching the Minister by surprise, and forcing the Tribunal into granting one or more adjournments to enable the Minister to meet the new case put. If this purpose were not sufficiently apparent from the terms of the legislation, it is apparent from the second reading speech in relation to the bill by which the provisions were introduced. That bill became the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (No. 2) (Cth). The expressed intention of the bill was to prevent the use of the procedure of merits review to prolong the stay in Australia of a person denied a visa by the application of the character test. Crucial to the scheme is the eighty-four day time limit for the whole process, laid down in subs (6L).
26 It is plain that the scheme is designed to disadvantage an applicant for review. Subsections (6H) and (6J) are not counterbalanced by any express obligation on the Minister to disclose the entire case against the applicant prior to the hearing. The purpose of subss (6H) and (6J) can only be to advantage the Minister at the hearing. Being forewarned as to the entirety of the case of the applicant for review, the Minister is better able to respond to the case. …” (at 389-90; 457-8)
At the same time, the scheme does not restrict the Minister in the material on which he may rely (Goldie at 391; 459; [29]).
The Tribunal’s powers to call for documents in the Minister’s possession or control are the subject of s. 500(6K) when “… the Tribunal is of the opinion that particular documents, or documents included in a particular class of documents, may be relevant in relation to the decision under review” (s. 500(6K)(c)). If it is of that opinion:
“the Tribunal may cause to be served on the Minister a notice in writing stating that the Tribunal is of that opinion and requiring the Minister to lodge with the Tribunal, within a time specified in the notice, 2 copies of each of those documents that is in the Minister’s possession or under the Minister’s control” (s. 500(6K)(d))
Gray J said of the Tribunal’s power under this section:
“… Unless the possible existence of such documents, or class of documents, is brought to the attention of the Tribunal by the applicant for review or by the Minister, it is unlikely that the Tribunal will ever form the necessary opinion. The possibility of the existence of such documents, or class of documents, may be evident from documents tendered by the Minister at the hearing. The Tribunal may wish to exercise the power in s 500(6K) to ensure that injustice is not done to an applicant for review by selective production of documents in the possession or under the control of the Minister.” (Goldie at 390-391; 457-458; [28])
Does this section circumscribe the Tribunal’s powers so that it cannot obtain information or documents otherwise than by relying on s. 500(6K)? That section necessarily assumes that the Tribunal forms the opinion that the documents may be relevant in relation to the decision under review and that they are in the possession or control of the Minister. Ms Petre advised that in this case, the Minister did not have a copy of Mr Joblin’s 2000 report on the file. Exercising the power would have been a barren exercise.
In cases other than expedited visa cases such as this, the Tribunal has power to obtain documents using its powers under the Administrative Appeals Tribunal Act 1975 (“AAT Act”). It does so bearing in mind that, traditionally, the role of the Tribunal is to review a decision on its merits in order to reach the correct or preferable decision (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589, per Bowen CJ and Deane J). Its role is not to support the case of one party or of another. With that in mind, the AAT Act requires the decision-maker to lodge material pursuant to s. 37 of the AAT Act and it may require either or both parties to produce further evidence. The Tribunal is given power to summons other persons to produce other documents that may be relevant to the review of the decision (AAT Act, s. 40). As the Tribunal’s procedure is, subject to the AAT Act, the Administrative Appeals Tribunal Regulations 1976 and any other enactment, within its own discretion, the Tribunal may formulate its directions regarding the production of further evidence to suit the needs of the decision under review. That is the effect of s. 33(1) of the AAT Act.
Apart from the express modifications in s. 500 of the Migration Act, including the dispensation of the requirements under s. 37 of the AAT Act in expedited visa matters, there is no express modification of the Tribunal’s powers to exercise its powers to obtain documents and to admit them in evidence. Is there any implicit modification? In Goldie, Mr Goldie had requested copies of the T documents lodged in an earlier proceeding in the Tribunal’s Queensland Registry. The Tribunal had directed that they be filed. He had taken no further steps with regard to them but the Minister tendered them at the hearing.
Gray J was:
“… of the view that the special scheme laid down in s 500 of the Migration Act for dealing with applications to the Tribunal for review of decisions applying the character test does not deprive the Tribunal of the capacity to exercise its normal powers to receive documents in evidence. The exception is that an applicant for review is expressly disadvantaged by subs (6J) by having to supply copies of any documents to the Minister two business days prior to the hearing if the applicant for review wishes to rely on documents. In the present case, it was open to the Tribunal to receive in evidence at the hearing the s 37 documents from the Queensland Tribunal proceeding concerning the appellant. … The learned trial judge was correct to say that the provisions of s 500 of the Migration Act do not exhaust the powers of the Tribunal, particularly the power to admit into evidence documents, in a case to which s 500 applies. …” (at 391; 459; [30])
While Gray J was concerned with material tendered by the Minister, the principle is equally applicable to material sought by the Tribunal. The manner in which it exercises those powers must, however, be tempered by the scheme of provisions in s. 500 of the Migration Act. As the Minister is not to be caught by surprise by an applicant’s case, the discretion to receive documents into evidence must be tempered by that consideration. It must also be tempered by the fact that an applicant will be deprived by ss. 500(6H) and (6J) of any opportunity to lead oral or documentary evidence to counteract that evidence.
In this case, Mr Joblin’s 2000 report was referred to in Judge Robertson’s remarks. Therefore, it was known to the Minister and his Department (Department of Immigration and Multicultural and Indigenous Affairs) even if he or it did not acquire a copy of it from the County Court. It was also known to Mr Cutugno and his advisers. The contents of the report deal directly with Mr Cutugno’s offending behaviour, the reasons for it and aspects of his rehabilitation. It is not a case in which the Minister could be said to be taken by surprise by its existence. She could not be said to be taken by surprise by the nature of its contents for it is the sort of report that is frequently tendered to a court required to sentence a convicted person. Mr Cutugno does not object to its being taken into account. I considered that it could assist me in reaching the correct or preferable decision and so should have regard to the 2000 report.
Having decided that, I also had regard to the evidence given by Mr Joblin regarding Mr Cutugno’s offending behaviour and the likelihood of his re-offending. It arose naturally from Judge Robertson’s reference to Mr Joblin’s opinion given to him regarding Mr Cutugno’s borderline level of intellectual functioning coupled with an anti-social personality disorder.
In so far as Mr Joblin’s statement of 23 December 2004 is concerned, I repeat my comments in Re Carmichael and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1024 to the effect that s. 500(6H) requires that a witness statement possess a sufficient degree of particularity to enable them to amount to “information” in the sense required by that section. A brief description of broad topics does not meet that requirement (Carmichael at [46]-[58]). Mr Joblin’s statement fails to meet the test but each of the subjects addressed in it was addressed in detail in his 2004 report. Consequently, s. 500(6H) did not prevent his giving evidence at the hearing.
BACKGROUND
In this section of my reasons, I set out the findings I have made regarding the facts forming the background to the issue that I must decide. I have made those findings based on the evidence to which I have referred above and in light of the lack of controversy between the parties about them.
Mr Cutugno’s family and early life
I find that Mr Cutugno was born in Bovalino, Calabria, Italy on 2 November 1961. He has an older sister, Mrs Marzano who is 48 years of age and two older brothers, Mr Tony Cutugno, who is 46, and Mr Agostino Cutugno, who is now 45. His mother is now 74 years of age. Mrs Cutugno and Mr Tony Cutugno are Australian citizens as are Mr Cutugno’s cousins, nieces and nephews. Mrs Marzano and Mr Agostino Cutugno are permanent residents. Mr Tony Cutugno, who works nightshifts, has three children and Mrs Marzano has six. Both Mr Tony Cutugno and Mrs Marzano are married. Mrs Marzano is close to her mother and she spends time with her mother and her brother, Agostino, each day.
Life in Bovalino is quite difficult. I accept the evidence of Mrs Marzano that there is little employment available in the village. She experienced life there for 15 years from 1976 until she returned to Australia in 1990 with her husband and six children. For her, life was centred on a home where there were only two beds for the family and the children slept in one of them. They returned to Australia with financial assistance from the remainder of the family.
Mr Cutugno’s father migrated to Australia from Italy first. His wife and children joined him in 1969 when Mr Cutugno was eight years of age. A number of the witnesses as well as Judge Robertson referred to Mr Cutugno’s father being a heavy drinker. I make that finding and on the same basis find that his father, who was an engineer, became aggressive when drunk. Although he tried to stop drinking in his later years, he died at the age of 53 from alcohol-related problems.
Mrs Cutugno lives at St Albans. She worked as a car detailer from 1977 until she retired in 1996 at the age of 65 years. Living at home Mrs Cutugno is one of her sons; Mr Agostino Cutugno. When he is not in prison, Mr Cutugno also lives with her. In light of Judge Robertson’s comments on sentencing and Mr Joblin’s 2000 report and his oral evidence, I find that Mr Cutugno has limited literacy skills, if any, in either English or Italian. He does not speak Calabrese, which is the language spoken by Mrs Cutugno. Mr Cutugno cannot recall attending school in Italy. In Australia, he attended the Sunshine Primary School. He also attended the Sunshine High School but left at the end of Form 3.
Mr Cutugno was made a ward of state in 1976 when he was 14 years of age. He moved through the Bayswater Boys’ Home, Turana, Malmsbury and various divisions of Pentridge, Geelong and Bendigo prisons. He is now in Fulham.
Mr Cutugno’s life after previous release from prison in 1993-1994
Mr Cutugno’s only period of employment has occurred in approximately 1994 and 1995 and perhaps into 1996 when he worked in landscaping for the Sunshine Council. He attended a course at TAFE in St Albans.
Mr Cutugno’s convictions
Mr Cutugno has been convicted of the following offences:
| Court | Date | Charge (counts) | Result |
| Footscray Children’s Court | 7 March 1975 | House break and steal | Probation for 12 months |
| Sunshine Children’s Court | 25 November 1975 | Burglary | Probation for 52 weeks |
| Melbourne Children’s Court | 21 January 1976 | Theft | Admitted to the care of the Social Welfare Department |
| Ballarat Children’s Court | 23 August 1976 | Theft of a motor vehicle (3) | Committed to the care of the Social Welfare Department |
| Melbourne Children’s Court | 15 February 1977 | Theft of a motor vehicle | Without conviction fined $100; default 10 days youth training centre |
| Sunshine Children’s Court | 26 April 1977 | Theft of a motor vehicle Burglary Unlicensed driving | 12 months youth training centre on each charge; concurrent |
| Sunshine Children’s Court | 26 April 1977 | Arson (2) | Aggregate 12 months youth training centre |
| Melbourne Children’s Court | 9 September 1977 | Theft of a motor vehicle Escape from youth training centre | 3 month youth training centre 1 month youth training centre |
| Sunshine Magistrates’ Court | 26 November 1979 | Burglary | 3 months |
| Sunshine Magistrates’ Court | 13 December 1979 | Offensive behaviour | Fined $50; default 5 days |
| Sunshine Magistrates’ Court | 21 January 1980 | Burglary (8) Theft (8) | Aggregate 12 months to be served by way of attendance centre order |
| Sunshine Magistrates’ Court | 18 February 1980 | Use indecent language in public place Drive vehicle on footway | Fined $50; default 5 days Fined $30; default 3 days |
| Sunshine Magistrates’ Court | 31 March 1980 | Habitual consorting | 3 months; to be served by way of attendance centre order concurrent with sentence undergoing. |
| Sunshine Magistrates’ Court | 3 April 1980 | Allow dog to wander at large Fail have dangerous dog muzzle/leash | Fined $30; default 2 days Fined $60; default 3 days |
| Melbourne County Court | 1 October 1980 | Blackmail Unlawful assault (2) | 6 months youth training centre 3 months youth training centre on each count. Total 12 months youth training centre |
| Melbourne County Court | 2 March 1981 | False imprisonment (common law) Robbery Assault occasioning actual bodily harm | Aggregate 18 months youth training centre |
| Melbourne Magistrates’ Court | 8 July 1981 | Burglary (4) Theft of a motor vehicle | 1 month on each charge |
| Sunshine Magistrates’ Court | 8 July 1981 | Escape from youth training centre | 1 month |
| Sunshine Magistrates’ Court | 13 December 1982 | Obtain property by deception | 1 month |
| Melbourne County Court | 20 April 1983 | Habitual consorting | 3 months |
| Adult Parole Board | 9 May 1983 | Breach of parole (adult) | To serve unexpired portion of 1 year, 6 months and 15 days |
| Sunshine Magistrates’ Court | 25 August 1983 | Theft of a motor vehicle | 6 months |
| Footscray Magistrates’ Court | 10 October 1983 | Burglary Self administer drug of dependence | 4 months on each charge concurrent Fined $100; default 2 days |
| Adult Parole Board | 7 November 1983 | Breach of parole (Adult) | To serve unexpired portion of 1 year, 6 months and 15 days |
| Sunshine Magistrates’ Court | 1 December 1983 | Handle/receive/retention stolen goods | 3 months on each charge |
| Melbourne Magistrates’ Court | 23 July 1984 | Theft of a motor vehicle Unlicensed driving | 3 months 1 month concurrent with sentence presently serving |
| Melbourne Magistrates’ Court | 8 October 1985 | Burglary | 6 months on each charge concurrent |
| Broadmeadows Magistrates’ Court | 17 December 1985 | Theft | 4 months |
| Broadmeadows Magistrates’ Court | 30 July 1986 | Burglary Theft Use heroin | 12 months 3 months 1 month |
| Preston Magistrates’ Court Preston Magistrates’ Court (continued) | 26 May 1987 26 May 1987 (continued) | Theft by deception Unlawful possession Utter forged prescription (2) | 3 months; sentence suspended for 12 months under s. 21, Penalties and Sentences Act (Vic) 1 month; sentence suspended for 12 months under s. 21, Penalties and Sentences Act (Vic) Fined $250 on each charge Fined $100 |
| Broadmeadows Magistrates’ Court | 7 August 1987 | Burglary (7) Theft (7) Criminal damage (intent damage/destroy) Burglary Fail to answer bail | 12 months on each charge; concurrent 6 months on each charge; concurrent and concurrent 3 months concurrent 1 month concurrent 7 days concurrent (Total: 12 months; released on 11 May 1988) |
| Broadmeadows Magistrates’ Court | 8 December 1988 | Burglary (21) Burglary Theft (19) Drive in a manner dangerous Theft (2) Use heroin (2) | 12 months on each charge concurrent 12 months 6 months on each charge; concurrent and concurrent 1 month on each charge; concurrent and concurrent 7 days concurrent 48 hours on each charge; concurrent and concurrent (Total: 2 years; minimum 12 months; released on 26 July 1989) |
| Broadmeadows Magistrates’ Court | 27 April 1990 | Fail to answer bail Burglary | 6 months concurrent 12 months on each charge; concurrent |
| Williamstown Magistrates’ Court | 9 September 1991 | Use heroin | Fined $300 |
| Melbourne Magistrates’ Court | 9 October 1991 | Burglary (2) Theft (3) Use drug of dependence (not named) (3) | 18 months on each charge; concurrent 9 months on each charge; concurrent and concurrent 2 months on each charge; concurrent and concurrent (Total: 18 months; minimum 12 months) |
| Melbourne Magistrates’ Court | 25 March 1992 | Use heroin | Fined $100 |
| Broadmeadows Magistrates’ Court | 11 November 1993 | Burglary (15) | 24 months on each charge |
| Broadmeadows Magistrates’ Court | 9 March 1995 | Unlawfully on premises/precinct | Without conviction fined $100 |
| Broadmeadows Magistrates’ Court | 3 November 1995 | Wilfully damage property Unlawful assault | Both charges convicted and fined aggregate $600 |
| Broadmeadows Magistrates’ Court | 17 July 1996 | Burglary Theft | 9 months on each charge; concurrent. Sentence suspended for 2 years under s. 27, Sentencing Act (Vic) |
| Sunshine Magistrates’ Court Sunshine Magistrates’ Court (continued) | 12 June 1997 12 June 1997 (continued) | Theft Escape from lawful custody Burglary | Both charges convicted and adjourned to 17 October 1998 Both charges struck out Drugs forfeited Breach of suspended sentence |
| Melbourne County Court | 8 November 2000 | Armed robbery Recklessly cause injury Theft of a motor vehicle (2) | 4 years 1 year, 6 months; 6 months of sentence concurrent 6 months on each count; concurrent and concurrent (Total: 7 years; non parole period of 5 years (declare a period of 230 days have already been served by way -of pre-sentence detention) |
There is no evidence of any incidents at Fulham. A note from an officer of the GEO Group Australia Pty Ltd that has responsibility for the Fulham stated that Mr Jeffery Grant is employed as a Unit Billet and receives good work reports from the supervising staff (G documents, G11).
Mr Cutugno has completed a number of courses and programmes since being imprisoned on the most recent occasion:
Six hour Drug Education Programme (M.A.P.) (9 August 2000)
Stress less course (M.A.P.) (9 August 2000)
Intensive Drug Program (15 weeks completed 25 May 2001)
Ongoing Metahodone Program
Occupational Health and Safety Certificates (3 January 2001 and 21 December 2003)
English course (12 April 2004)
Certificate 2 cleaning operations (G documents, G11 and Exhibit C)
Mr Cutugno has been assessed as suitable to attend the Cognitive Skills Program and an Intensive Drug Program.
THE EVIDENCE
Family life
Mrs Cutugno said that her son, Vitaliano, had been:
“… a pretty good kid up until he was 15 years of age. Victor and my other kids all had abusive and tormented childhoods. My husband would constantly be physically and verbally abusive to my kids and I. I think that my husband had a major impact on us all and the way that he treated us, but I think he effected Victor most of all. Not too long after the incidents that my husband would do to us, Victor would begin to start off with small things that would make him end up in Juvenile Detention Centre. He would of rather preferred to spend his time in Juvenile then at home with his father and take all the abuse from him and do nothing about it.” (G documents, G6 at 1)
Mr Tony Cutugno said that he is closer to his brother, Victor, than to Agostina or to his sister. Several years ago, he and Victor invested in greyhounds. Greyhounds are a hobby that interests them both and they kept Victor out of trouble for a number of years. They also shared an interest in football and, although they support different teams, try to watch as many games as possible together.
His brother has been good to him, Mr Tony Cutugno wrote in his letter to the Department. He always asked him if he was all right as he has a very good heart. That is so even though he has been in prison. His brother has been a very important part of his life and that of his wife, Mr Tony Cutugno said.
Mrs Marzano described herself as being in the position of a second mother to her brother, Victor. She cared for him since he was a baby and made sure that he always had the best. In her evidence, she said simply that she loves him.
Mr Joblin noted in his 2000 report that Mr Cutugno had reported that he is not close to his older brother, Mr Tony Cutugno and rarely sees him. Of Mr Cutugno’s sister, Mr Joblin noted that Mr Cutugno had said that he is not close to her.
Of Mr Agostino Cutugno, Mr Joblin noted:
“… He is single and a pensioner. It would appear that he was diagnosed as schizophrenic 14 years ago. He lives with his mother when he is not in a psychiatric unit. It would appear that he has a history of violence and aggression related to his mental illness. Mr Cutugno reported that he is close to that brother. …” (2000 report at 1-2)
Alcohol and drug use
Judge Robertson noted that Mr Cutugno had a serious heroin addiction problem commencing in the early 1980s. In 2000, Mr Cutugno had already been taking methadone for the previous ten years. When he was released in 1993-94, he had been drug-free and motivated to rehabilitate himself. He had wanted to own and train greyhounds.
Mr Cutugno redeveloped his heroin habit when he had what Judge Ronbertson described as a serious motor vehicle accident. That accident was in 1996.
The offences
Judge Robertson summarised the circumstances in which Mr Cutugno committed his most recent group of offences in the following way:
“…On 5 February 2000, you stole a motor vehicle from an undercover car park in a suburban shopping centre, the Sunshine Plaza, in most concerning and distressing circumstances. A young female shopper was returning to her car. With her was her 18-month-old baby. The shopper opened the driver’s side door and placed her keys in the ignition of the car. She then proceeded to the offside rear door and placed her child in the car seat. You then approached her. After a preliminary conversation concerning the time, you demanded her car from her. She resisted. You got into the driver’s seat of the vehicle. The young woman was screaming and she entered the car also, attempting to remove her child. As she was doing so, you started the car and commenced to reverse it from the car park, and then commenced to drive forward, towards the exit. The young woman managed to grab her child from the child seat, and she and the child fell out of the car. The child was uninjured and the young woman, thankfully, suffered only superficial bruising to her body. It is not too difficult to understand the physical and emotional trauma caused to this young woman in such a terrifying situation.
You drove the car from the car park, and in so doing, you clipped another vehicle, thereby causing damage to the stolen vehicle. Such damage to the stolen vehicle amounted to $1381.63, being the cost of repairs, and an application has been made to this court for a compensation order in that sum.
Your actions in the car park that day were witnessed by concerned citizens.
You then used the stolen car to assist you in the execution of an armed robbery at a Tattslotto agency in Braybrook. You drove the vehicle. You provided the gun, a non-operational weapon, which was used in the armed robbery by your co-offender. The co-offender, wearing disguise and brandishing the gun, entered the Tattslotto agency and threatened members of the staff. He demanded money, at the same time menacing with the gun. The manager emptied the till, which contained approximately $1900. The co-offender then gathered up the money and ran to the waiting car being driven by you. You made your escape in the stolen vehicle which you subsequently abandoned. You apparently split the proceeds of the robbery. Your co-offender, to date, has not been charged with any offences.
Count 4 on the presentment relates to 12 cannabis plants which were located at the property where you then resided, following the execution of a search warrant at those premises. You were apprehended by a member of the Victoria Police. At interview, you cooperated fully with the investigating police officers. You were charged with these offences, and you were then released on bail.
Whilst still on bail, you were to commit a further armed robbery … On 25 March 2000, you and your co-offender, Nicholas John Apostilides, stole a vehicle from a suburban street at Footscray. You stole it for the purposes of using it in the commission of armed robbery.
In the mid-afternoon of that day, you and your co-offender committed an armed robbery on a Tattslotto agency in Yarraville. You both entered the shop wearing balaclavas and boiler suits. You were armed with a screwdriver and a hammer, whilst your co-offender wielded a blood-filled syringe, and most probably, also a knife. A threatening demand was made of staff for the money, and approximately $1250 was taken by you both. It was perhaps fortunate for the owners of the agency that, moments before your attack, they made a deposit of takings at a nearby bank.
It should be pointed out that scientific analysis has revealed that the syringe wielded by your co-offender contained blood which was apparently yours. You claim to have no recollection as to how your blood found its way into the syringe.
A number of persons, staff and customers, were in the shop at the time of the robbery and they were most understandably terrified by the events.
You both fled from the ship and made your escape in the stolen car, which you were subsequently to abandon.
You were subsequently apprehended by officers of the Victoria Police. You cooperated fully with the police in their investigations.
I am satisfied that both armed robberies on these so-called ‘soft’ targets were planned robberies, and were not spur-of-the-moment robberies. However, having said that, the planning clearly lacked a degree of sophistication.
I have read a number of victim impact statements tendered to this court. It takes little imagination to understand the feelings of disquiet and concern expressed by the authors of such statements, and I take their observations into consideration for sentencing purposes.
…” (G documents, G9 at 56-59)
His Honour had earlier described Mr Cutugno as:
“an habitual criminal, albeit that many of your prior convictions are related to your drug-addicted status. It is clear that from a very early age yours has been a sad and troubled life; for the most part of it, you being institutionalised.” (G documents, G9 at 56)
Mr Cutugno said that he had not known that there was a baby in the back when he took the car. He had never hurt a kid in his life, he said. It was not his kind of crime. Mr Cutugno had no recollection that it was his blood in the syringe.
The reasons for committing the offences
Judge Robertson noted Mr Joblin’s opinion regarding Mr Cutugno’s borderline level of intellectual functioning coupled with anti-social personality disorder. His Honour suspected that many of Mr Cutugno’s problems emanated from his institutionalisation at quite a young age.
At the time that he committed the offences, Judge Robertson noted, Mr Cutugno was drug affected. That did little to mitigate the crimes. The fact that the proceeds of the robberies were relatively small did little to mitigate their seriousness. He described Mr Cutugno and his co-offenders as opportunists. Had there been more in the tills, they would have taken it.
Mr Tony Cutugno considered that his brother had all of his troubles with the law because of the way in which he grew up and because of his father’s influence. Their father was abusive to Victor. His sister, Mrs Marzano, echoed this view and added:
“… I believe that Vic seeing his drunk and abusive father everyday got him depressed and on the streets with a bad group of friends who influenced Vic even though he is old enough to make his own decisions to take drugs. …” (G documents, G8)
Rationale of Judge Robertson’s sentence
Mr Cutugno’s crimes of armed robbery on soft targets are far too prevalent, Judge Robertson said. He regarded them as most serious crimes. The maximum sentences that could be imposed were 25 years for armed robbery, ten years for theft, five years for causing injury recklessly and one year for cultivation of a narcotic plant. Judge Robertson said in his sentencing remarks:
“ Clearly, the aspects of deterrence, particularly general deterrence, must loom large in any sentencing consideration. The protection of the public against offences of this nature is a most important sentencing consideration, particularly when taking into account your extensive criminal history.
The court is most concerned about your apparent level of desperation when you were prepared to steal a car with a driver in attendance and a child in the back seat from a suburban car park. As I said, it is perhaps most fortunate for you that the driver was not more seriously injured and that, thankfully, the child was not injured at all. But, of course, such behaviour causes this court considerable concern.” (G documents, G9 at 62)
The risk of Mr Cutugno’s re-offending
Mr Cutugno said that he has learned his lesson and asked for one more chance. The lesson that he has learned is to say “no” and to keep away from people and drugs. He had learned that lesson but then he had the car accident and he had pain. The armed robbery was stupid. He would be under the watchful eye of the Parole Board. He regrets offending when he had stayed out of trouble for seven years before that. For the first time, he has a job lined up as a car detailer with the firm for which his mother once worked. He wants to move out of the suburb where he has lived and away from people. He wants to get a couple of acres with the money from the sale of his mother’s house and of the money he received for the motor vehicle accident. He will train greyhounds on the property. He has learned his lesson, he said and will not go on breaking the law. Mr Cutugno just wants to prove himself to himself and his family and just do the right thing. If he does something wrongly, he has only himself to blame. He could not recall making a similar resolution before he returned to gaol on the latest occasion. Perhaps he had but he had never been so determined. He is so determined because he does not want to lose his family and it is the first time that he has had a job waiting for him on his release.
Mr Cutugno said that he had never been warned about the possibility of his being deported until now. Had he known that was a possibility, he would never have offended. In cross-examination, he acknowledged that he had been given other chances not to re-offend. He had not been in trouble in gaol and did not think that Judge Robertson’s description of him as an habitual criminal was fair. He knows that he has been in gaol for half his life but everyone can change. There comes a time to change and he is now a changed man, he said. It might have been fair to call him a habitual criminal at one time but not now.
Judge Robertson noted that Mr Cutugno had been partially successful in rehabilitating himself in the past from drug addiction. He saw no reason why Mr Cutugno could not do the same again.
Mr Tony Cutugno wrote to the Department:
“As my brother Victor has reached over the age of 40, I believe that he has matured more and has realised that committing crimes is not the way to go and there is more to life than going against the law. The transfer from Port Phillip Prison to Fulham Correctional Centre makes him very unhappy to feel as he is so far away from the family. He has had enough of seeing his mother and family in such agony just to satisfy no one, and knowing that his mother is very old and it is her turn to be taken care of and that she shouldn’t have to travel three hours back and forth every fortnight in her condition.” (G documents, G7)
Mrs Marzano wrote to the Department:
“I believe it would have a huge affect on my little brother Vic for him knowing that he is going to be taken away from not only his mother but as mentioned before his second mother, me. In my recent visits for the last 12 months I have noticed a dramatic change in Victor attitude towards life. For the first time in mine and Vic’s life, he has told me that he has had enough and has actually asked me for assistance in helping him out with rehabilitation.
…I really believe he is going to … right the wrongs in life. In the forty three years, I have never seen my brother cry like he did to my mother and I when he told us he has had enough of these troubled days.
…
… I believe that my brother Vic is very disappointed and also embarrassed about his past and is ready to start a new life and show everybody that he can change and be a better son, brother, and uncle to his family and also a better citizen in the community.” (G documents, G8)
Mrs Marzano said that she has seen a change in her brother that she has never seen before his most recent period in gaol. He has told her “never again”. She has every confidence that he will change. Mrs Heather Cutugno, who is married to Mr Tony Cutugno, agreed that Victor has changed and is now realising the harsh reality of where his behaviour has led him. Her children adore their uncle. That was confirmed by Mr Cutugno’s nephews, Mr Frank Marzano and Mr Joseph Cutugno and his nieces, Ms Patricia Marzano and Ms Josephine Marzano. Mrs Marzano wrote on behalf of her eldest son, Anotonio, who has a disability. She wrote of his spending time with Antonio so that he has gained confidence. Mr Joe Pedulla is Mr Cutugno’s cousin and he also confirmed that he had found him to be a changed person. If Victor were to remain in Australia, he would always be amongst family and so have every chance to right his wrongs. A family friend, Mr Vincent Morabito, wrote of Mrs Cutugno’s constantly giving him glowing reports of Victor’s behaviour and well being and his continual promises that he will care for her and repay her. Mr Francesco Morabito comes from the same village as Mr Cutugno. He wrote of Mr Cutugno’s family constantly trying to change him into a man with a conscience and to prepare him for re-entry into society with respect for authority and Australia’s laws.
In his 2000 report, Mr Joblin, noted that Mr Cutugno had referred to the motor vehicle accident and to the pain and headaches that he suffered as a result. The accident disrupted Mr Cutugno’s progress with the result that he could not work, could not attend school and could not train his greyhounds. Mr Cutugno told him that he grew bored and gravitated back to his former antisocial habits including heroin use. By the end of 1996 and into 1997, he had again developed his heroin habit as he had in the early 1990s. In Mr Joblin’s opinion, it was inevitable at that stage that Mr Cutugno would again come to the attention of the police. He was psychologically vulnerable. It was at this time that he met his co-offender in the second of the armed robberies, Mr Apostolides.
Mr Joblin’s opinion prior to Mr Cutugno’s being sentenced on the last occasion was:
“The issue with Mr Cutugno is that he has a concerning history from his early teenage years. He is now 39 and to this point he has been unable to settle appropriately in the community apart from two or three years. He has formed a reference and identity with those with whom he grew up in institutions. This has become an extremely difficult matter for this man and the community. Unfortunately for Mr Cutugno in addition to these difficulties he has a limited intellect. Thus, there has been a combination of factors relevant to the continuation of his drug use and reappearance in court, this time on serious charges.
He is not psychologically healthy. He has problems functioning outside institutions. His limited intellect does not allow him the capacity to place his history into a perspective that will enable him to do something about it. While I am aware the he has been assisted in the past with ICOs and CBOs, I doubt that these orders have been able to address the issues, given his limited intelligence. In my opinion it would not have been appropriate to deal with this man with an ICO or CBO without taking into consideration his limitations intellectually and thus, Mr Cutugno would have presented as a difficult case for anyone trying to supervise or work with him in the rehabilitative programs.
Mr Cutugno laments his present situation, particularly as he is very close to his mother and mentally ill brother. He reported that he has spent much of his time when at liberty, working with them and helping them. He is now concerned that he is in custody.
Overall it is a difficult situation. Mr Cutugno is not simply an antisocial personality disorder as there is the complicating issue of his limited intelligence. He does not present superficially as intelligent as psychopathic personalities may and thus a diagnosis of antisocial or psychopathic personality in spite of his history is inappropriate.
The prognosis for this man is obviously a concern. He will need specific attention if he is afforded parole and that attention must consider the somewhat childlike idealism he has in relation to functioning in the community. This idealism has developed from the effects of his limited intellect and his quite obvious psychosocial problems as a result of living in penal institutions from his early teenage years.” (2000 report at 4)
In giving evidence, Mr Joblin explained that Mr Cutugno’s idealism against a background of limited intelligence enables him to have a very concrete outlook on life: a home, job, family and work. These aims are contradicted by history and there is that conflict. He has an inability to match what he should do with what he does.
Addressing Mr Cutugno’s anti social behaviour is an issue. In 1995 and 1996 he was becoming vulnerable and doing very little. Despite that, Mr Joblin did not consider that Mr Cutugno would have re-offended in 2000 had he not met Mr Apostolides. If he were on supervised parole, therefore, it would be necessary to ensure that Mr Cutugno has the strength to resist offers to undertake anti social behaviour when they are made in the street. If he is offered money through armed robbery, he has to have the strength to refuse it. In the past, he needed the money because of his drug use.
Mr Joblin would like to see Mr Cutugno continue to take methadone as it would help him to resist heroin. It has a stabilising and calming effect on any erratic behaviour. It does not necessarily take away the craving for heroin but it does take away the physiological and psychological need for it. His being on methadone would also eliminate the need for him to obtain money for heroin.
Mr Agostino Cutugno and his care
In his 2004 report, Mr Joblin wrote:
“It seems that Agostino has been diagnosed as schizophrenic and I noted that is mentioned in the Flemington Medical Centre report of July 1996. It seems that this man has had some attention from the police and was released early this year. The offences occurred when he had been drinking excessively. He apparently has a serious intolerance to alcohol. However, it is also apparent that Mrs Cutugno’s life virtually centres around looking after that son. In the morning he has to go to the chemist to obtain what she described as methadone and other tablets. He will not go on his own. He cannot walk there and has to be driven because he is fearful of persons in the community. Mrs Cutugno is also concerned that there may be drug or alcohol affected persons in the community which [sic] whom she obviously does not want him to associate. His mental illness also prohibits his going on his own. Thus, she tries to drive him in the morning to the chemist. Every fortnight he attends the Sunshine Medical Clinic where he receives an injection, which is probably the antipsychotic medication Modecate. He is further reporting on parole. It seems to me that he attempted community work but that could not be effected. He had been reporting on parole fortnightly but is now reporting monthly.
That man’s daily routine includes sitting around the house. He listens to music. He drinks quantities of tea. He has no friends. Occasionally he watches a video. He rarely goes out but when he does, he goes to his sister’s home as he apparently has a reasonable relationship with her husband.
Mrs Cutugno reported that she is extremely concerned about this son, particularly as she is dedicating her life to looking after him. When she attended my office on the 17th of December 2004 his sister had to care for him. Indeed, at times when Mrs Cutugno cannot look after him, Rosa must leave her family and take him to various appointments, in spite of the fact that she has six children of her own. Quite obviously this is a serious burden for the family.
Mrs Cutugno is under no misapprehension over the need for him to continue to report on parole, to attend medical apportionments [sic] and to take his methadone. She at times totally powerless if she is unable to assist him and thus, as indicated, his sister must be involved. This issue would be strongly relieved if his brother, Victor, was living with them after his release. It seems that Victor and Agostino have a very good and positive relationship and there would obviously be some relief for his mother from this extraordinary daily ritual.
…” (Exhibit B at 1-2)
Mr Joblin also noted that Mrs Cutugno’s care of Agostino has become more difficult since her car was stolen.
In his oral evidence, Mr Joblin noted that Mr Cutugno has adopted a father like relationship to Agostino. This may be contradicted by the fact that he has offended but he perceives himself as responsible for Agostino. He observed that, if Agostino is taken into custody, Mr Cutugno tries to ensure that he is there for him and in the same place in the gaol system. That has occurred in Turana and at Pentridge. At Turana, Mr Cutugno arrived first and was joined by his brother. He feels a degree of responsibility for his brother’s being affected by drugs.
Mr Cutugno said that his brother becomes very depressed, he said, and he sits him down and talks to him. He then snaps out of his depression. When he is with him at home, he makes him take his medication and takes him to the psychiatrist and the doctor. They go to the pictures once in a while and to the football. Mrs Marzano confirmed that Victor and Agostino are very close. When the letter came from the Department cancelling Victor’s visa, Agostino started going downhill, his sister said. Agostino just cannot cope with the fact that his brother may be deported.
Mrs Marzano said that she has been taking care of her mother and brother, Agostino. It is too much for her and she needs support, especially with her brother. Every morning, she gets up at 6 am to be with her brother. Her children are grown up with their own lives but she is still the mother of six. She could not cope without her brother. Agostino is getting worse as he gets older. When her mother has her operation, she will be in a wheel chair and will not be able to cope. Her mother is constantly crying and going downhill. Her brother, Tony, and her sister in law cannot help as much as she can as they both work. She could not have Agostino live in her home as she could not fit him in.
The impact on Mr Cutugno and the family should he not be permitted to remain in Australia
Mr Cutugno said that he cannot wholly in Italian. When he speaks with his mother, he may speak ten words in Italian and eight in Australian. He is not in touch with any relative in Italy. He did not know how he would support himself if he had to live there.
Mr Joblin noted in his 2004 report that he had been told that Mrs Cutugno’s parents in Italy were deceased and that her brothers and sister now live in Australia. Therefore, Mr Cutugno would have no family or contacts were he sent to Italy and away from Australia. In her letter to the Department, Mrs Cutugno said that her son would have a few very old distant uncles in Italy. In her oral evidence, she said that her sister still lives in Bovalino. He has cousins there also but he does not know them.
Mr Joblin went on to report what Mrs Cutugno had told him about her feelings about her son and where he should live:
“9. Mrs Cutugno indicated that in Australia she has a three or four bedroom home. She grows her vegetables in her yard. She has made the house very comfortable for her family. She is apparently an excellent cook and cannot comprehend given those conditions why her son would not want to live with her. Indeed, she believes he will live with her and cannot understand why the Department would want to deport him. That leads to a degree of confusion and certainly a significant degree of sadness. This lady cannot comprehend how after she brought her family to Australia and provided for them over many years, that may now be taken from her. This is a very serious issue.
10. Mrs Cutugno apparently has medical difficulties and it would be of considerable importance to obtain relevant medical reports. She indicated that she is to have an operation on her knee. She is concerned that in her absence there may be difficulties with the son who is mentally ill.” (Exhibit B at 3)
In Mr Joblin’s opinion, it was easy to comprehend that Mrs Cutugno needs assistance and that her need could be fulfilled by her son, Vitaliano. In his oral evidence, he said that Mrs Cutugno would see her relationship with her son as at an end if he were to be deported to Italy. She is persuading herself that it will not happen.
In her letter to the Department, Mrs Cutugno wrote that her life would change dramatically were her son not permitted to remain in Australia. She has four children. Two of them are married and can hardly take the time to look after her in her dying days. Her son, Agostino, is not stable enough to look after her. She needs someone she can rely and depend on. She needs someone who does not have a history of mental incapacity as Agostino has. She needs her son, Victor. It would be easy to put her in an old age home but, she wrote, is it too much to ask that she spend her old days with all four of her children. When she is gone, who will care for Agostino, she asked. Agostino needs his family as does Victor. She is due to have an operation on her knee and she is concerned as to who will care for Agostino when she is not at home.
Mrs Cutugno described the years that Victor has been in prison as a struggle. She worries about him every day and thinks that he is unhappy in prison. He wants to take up counselling and to rehabilitate to get his life back on track and to never again relive the past. She has already lost her husband; she does not want to lose her son as well. Mrs Cutugno described him as “… the missing piece to my heart to be back with me would full that hole in my heart.” (G documents, G6 at 2) Mr Joblin reported that Mrs Cutugno “… is strongly of the opinion that he now has a conscience and that he recognises the need to care for her and his mentally ill brother” (Exhibit B at 3). In his oral evidence, he emphasised that this was Mrs Cutugno’s opinion and not necessarily his perception.
Mrs Cutugno said that her daughter and daughter in law visit her and she visits them when she can. She is very close to them and sometimes they stay overnight. Her daughter has six children and, although she telephones every day, she can only call in every couple of days. Her son drops in before work. She will have their support if Victor were not to be in Australia but she wants him to be with her because he does not have any family. When he is with her, he tidies the house and yard and even cooks. Victor can drive her as she cannot. He keeps Agostino company as they are very close. While Victor has been in prison, her daughter, daughter in law and grandchildren have all helped her but they have other commitments.
If her brother were deported, Mrs Marzano said, she would love to visit her brother in Italy but she could not with six children and a grandchild on the way. She could not envisage that her brother would cope. His Italian is half English and Calabrese is different. He has no skills and has only cousins and an old auntie in Italy. It is a difficult place to live and she knows as she lived there for fifteen years with six children. She would not be able to send him money. No-one in the family could help him with money consistently and there are no jobs in the little town she and he come from. When she lived there, she had to rely on people who were in a better position to give her food and clothes. She lived there because her husband could not speak English and could not get a job in Australia but she wanted to return as soon as she arrived there.
Mrs Heather Cutugno said that she and her husband help to care for her elderly mother in law. Her sister in law also helps out but, if Victor were to stay, he can help care for his mother. He has taken responsibility for his mother in the past.
Should Mr Cutugno be required to return to Italy, he would face difficulties, Mr Joblin said in his 2004 report. If he were permitted to remain in Australia, he would be subjected to conditions of parole and supervised for drug and alcohol use as well as antisocial behaviour. He would be monitored and, if necessary, referred to professionals. Mr Joblin has a lot of faith in the Parole Board. He is aware that Mr Cutugno broke his parole in 1989 but completed his suspended sentence successfully.
There is no guarantee that he would be monitored if he were deported. From a rehabilitative and therapeutic perspective, there are strong contra indications to his deportation, Mr Joblin said.
In his oral evidence, Mr Joblin explained that he did not consider that Mr Cutugno should be released straight back into the community. He has attended a number of courses at Fulham but release is different from being in prison. Supervision will be necessary when he is shown the gate at Fulham. Mr Cutugno still has significant problems with drug use. He has dropped from 100mls of methadone to 40mls but would need significant supervision. Mr Cutugno hopes to be on zero methadone on his release but that may be exceedingly ambitious.
When asked whether the threat of deportation would be a deterrent to Mr Cutugno’s re-offending, Mr Joblin replied that the likelihood of his re-offending is lessened if he were to remain in Australia and to comply strictly with the conditions of his parole. He considered that three matters would be relevant: his drug use; the support of his family; and the issue that has plagued him since his teenage years i.e. his antisocial behaviour. Mr Cutugno is of sufficient intelligence and insight to experience the threat of deportation as a deterrent but that is not enough in terms of enabling Mr Joblin to give an optimistic prognosis for him.
As for Mr Cutugno’s intelligence, Mr Joblin had thought in 2000 that he might come within the auspices of Disability Services at the Department of Human Services. That is possibly not the case, he now thinks but Mr Cutugno is of borderline intelligence. He is virtually illiterate. Although he has attended a course of education at Fulham, Mr Joblin does not place too much weight on that. He considers that Mr Cutugno’s intelligence is in the 70s with the retarded category marked at 69. Had retardation been an issue, it would have been picked up earlier.
When asked in cross-examination what assistance Mr Cutugno would be to his family if he were permitted to stay, Mr Joblin replied that the matter is left to self-report. His mother, sister and brother say that he will be of assistance but his history of offending indicates that he will not. Mr Joblin found it difficult to comment on the situation in 2005 when he had not seen Mr Cutugno since 2000. Mr Cutugno indicates that things have changed and they might have.
Mr Tony Cutugno said that he is a nightshift worker and it is sometimes hard for his family if his mother needs to be looked after at night. He hopes that his brother, Victor, is not deported so that he can care for his mother when he is released from prison. Agostino is not capable of undertaking such a big responsibility.
CONSIDERATION
Framework of Act
Under the Act, the Minister may grant visas either to travel to and enter Australia or to remain in Australia or to do both. There are classes of visas (s. 31(1)). Some are specified in the Act itself and some are prescribed in the Migration Regulations 1994 (“Regulations”) (s. 31(2)). The Regulations may prescribe criteria for a visa or for a visa of a specified class (s. 31(3)). For the purposes of this case, the prescribed criteria for the grant to a person of a visa of the type held by Mr Jeffery Grant are found in the primary criteria (and secondary criteria, if any) set out in the relevant Part of Schedule 2 to the Regulations. Among the primary criteria that must be satisfied for a Migrant Visa is that, at the time the decision is made, the person satisfies the requirements of public interest criterion 4001 i.e. that there is no evidence that might justify refusal of the visa under s. 501.
Even if a person satisfies the primary criteria for a visa, s. 501(2) of the Act provides that:
“The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.”
The “character test” is set out in s. 501(6), which, in so far as it is relevant, provides that:
“For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
(b)…
(c)having regard to either or both of the following:
(i)the person’s past and present criminal conduct;
(ii)the person’s past and present general conduct;
the person is not of good character; or
(d)in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i)engage in criminal conduct in Australia; or
(ii)harass, molest, intimidate or stalk another person in Australia; or
(iii)vilify a segment of the Australian community; or
(iv)incite discord in the Australian community or in a segment of that community; or
(v)represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.
Otherwise, the person passes the character test.”
A “substantial criminal record” is defined in s. 501(7) to mean, in part, that:
“…a person has a substantial criminal record if:
(a)…
(b) …
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or
(e)…”
The term “imprisonment” means “… any form of punitive detention in a facility or institution” (s. 501(12)).
The Direction
Pursuant to s. 499, the Minister may give written directions to a person or body about the performance of functions or the exercise of powers under the Act. The person or body must comply with those directions which must not be inconsistent with the Act or the regulations made under it. On 23 August 2001 the Minister made directions under s. 499 for the guidance of decision-makers in making decisions to refuse or cancel a visa under s. 501 of the Act, Direction – Visa Refusal and Cancellation under section 501 – No. 21 (“the Direction”). This is a matter to which the Tribunal will pay regard and particularly so as is it is policy formulated by the Minister. At the same time, “… the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.” (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590 per Bowen CJ and Deane J).
In commenting generally upon his power to refuse or cancel a visa, the Minister stated in the Preamble to the Direction:
“In exercising this power, the Minister has a responsibility to the Parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to refuse to grant visas, or cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it.
… When a visa applicant or a visa holder does not pass the Character Test, decision-makers will decide whether to refuse the application or to cancel a visa. Exercise of this discretion will take into account a wide range of factors including the expectations of the community, the nature of crimes committed, the non-citizen’s links to Australia and any relevant international law obligations.”
The Minister goes on to give a direction as to the purpose for which the powers of refusal or cancellation were given by the Parliament in enacting s. 501 when he said:
“The purpose of refusing or cancelling a visa under section 501 is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to enter or to remain in the community.”
The Direction - application of the character test
The Direction is then divided into two: the application of the character test and the exercise of the discretion. Taking first the application of the character test, there is no dispute between the parties, and I find, that Mr Cutugno has a substantial criminal record within the meaning of s. 501(7)(c) and so does not pass the character test.
The authorities regarding “good character”
Although Mr Cutugno has not passed the character test, it is worthwhile to focus for a moment on what is meant by the expression “good character”. It was considered in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 where Deputy President McMahon said that:
“‘Good character’ cannot have the meaning commonly attributed to it in criminal trials. In that context, it usually means absence of convictions or, at most, absence of adverse police notice. The distinction drawn in the two subparagraphs between criminal and general conduct supports the view that here, good character does not have the narrow criminal law meaning. There are many cases dealing with prohibited references to bad character and the effect on trials when evidence of that nature is allowed before a jury. In the present context, it is more likely that good character was intended to be given a broader meaning.
The Macquarie Dictionary defines character as ‘1. the aggregate of qualities that distinguishes one person or thing from others; 2. moral constitution, as of a person or people; 3. good moral constitution or status; 4. reputation; 5. good repute; 6. an account of the qualities or peculiarities of a person or thing.’ In assisting the Minister to determine whether a person has a good aggregate of qualities, as distinct from a bad one, regard should be had to the structure and purpose of the legislation.” (pages 154-155)
In Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780, Deputy President McDonald added:
“A decision about whether a person is of good character requires a consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.” (page 781)
What is meant by the expression “good character” was also considered by the Full Court of the Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 (Davies, Lee and Nicholson JJ). While each rejected the notion that good character referred to a person’s reputation or repute, Lee J expressed that to which it does refer in the following passage:
“Unless the terms of the Act and regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion …
…
Notwithstanding the breadth of the disqualifying elements of the prescribed criteria, the purpose of reliance upon the concept of good character in the regulations is of importance. Common sense suggests that the Act and regulations are not concerned with infractions or patterns of conduct that show weaknesses or blemishes in character but with ensuring that the exercise of a sovereign power to prevent a non-citizen entering Australia is only invoked when the non-citizen is a person whose lack of good character is such that it is for the public good to refuse entry.” (page 94)
Finally, regard should be had to the judgement of the Full Court of the Federal Court in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321 (Spender, Drummond and Mansfield JJ). Speaking generally of s. 501, the Full Court said that it:
“… does not charge the decision-maker with the task of making a judgment, general in nature, about the character of a person, ie, a judgment to which the statutory context is of no relevance. The concept of ‘good character’ in s 501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is ‘not of good character’ within s 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry.
… Even though the appellant sought a long-term entry permit, the tribunal may well have set too high a standard in determining, on the basis upon which it acted, that he was not a person of good character: it appears to have concentrated, in making this finding, on considerations showing a lack of the highest integrity on his part, without making any attempt to test the deficiencies it identified in his conduct against the level of harm to the public good that would be presented by his admission into the Australian community on a permanent basis. However, no challenge being made to the tribunal’s decision on this ground, so it is unnecessary to pursue this question.” (pages 324 and 327)
The Direction – exercise of the discretion
As I have found that Mr Cutugno does not pass the character test, I must now consider whether or not his visa should be cancelled. This is the discretionary aspect of the character test. The Minister has directed that there are both primary and other considerations to which a decision-maker should have regard in exercising the discretion. Decision-makers are directed that they:
“… must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.” (Direction, cl. 2.2)
The three primary considerations are:
“(a)the protection of the Australian community, and members of the community;
(b)the expectations of the Australian community; and
(c)in all cases involving a parental relationship or other close relationship between a child or children and the person under consideration, the best interests of the child or children.” (Direction, paragraph 2.3)
The Minister then deals with each primary consideration in turn. The consideration of the protection of the Australian community requires me to consider three factors: the seriousness and nature of Mr Cutugno’s conduct; the likelihood that he will repeat it; and whether visa refusal might prevent or discourage similar conduct in the future (Direction, cl. 2.5).
Of particular significance in relation to the seriousness and nature of Mr Cutugno’s conduct, I must have regard to the Direction that:
“It is the Government’s view that the following are examples of offences which are considered by the Government to be very serious:
(a)the production, importation, distribution, trafficking (including possession for this purpose), commercial dealing, or selling of illicit drugs:
persons who embark upon drug-related crime for financial gain have shown a callous disregard for the insidious effects of illicit drugs on the health and welfare of Australia’s young people;
the Government views non-citizens who have sought to profit from the import or supply of drugs, whether or not motivated by their own need for illicit drugs, as extremely serious offenders. It is important both as a deterrent to other criminals and to protect Australian society that it is clearly understood that crimes involving drug trafficking, which puts the lives of young Australians at risk, be viewed as completely unacceptable to the community; and
offences involving illicit drugs of dependency or addiction, such as heroin, are also of particular concern to the Government and the community.
(b) …
(c) …
(d) …
(e) armed robbery (including robbery involving the use of imitation weapons), home invasion;
(f)murder, manslaughter, assault or any other form of violence against persons;
(g)…
(h)kidnapping;
(i) blackmail;
(j)…
(k)arson;
(l)…
(m)…
(n)any other crimes involving violence or the threat of violence:
such crimes are of special concern to the welfare and safety of the Australian community;
(o)ancillary offences in respect to any of the above offences, including:
convictions for attempting to commit any of the above offences;
…
…”
(Direction, cl. 2.6)
In assessing such matters, regard must also be had to any relevant factors put forward by Mr Cutugno as mitigating factors (Direction, cl. 2.8(a)). The sentence imposed for any offence is regarded as an indication of the seriousness of the offender’s conduct against the community (Direction, cl. 2.7). Regard must also be had to the likelihood that his conduct may be repeated and to the need to deter other people from repeating such conduct. In assessing that in the context of
Mr Cutugno’s case, it is relevant to have regard to:
“the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make.” (Direction, cl. 2.10(c))
General deterrence, the Direction continues, is intended to deter others from committing the same or similar offences (paragraph 2.11(a)).
Consideration must be given to the second primary consideration i.e. the expectations of the Australian community as they have been identified by the Minister as follows:
“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. …” (Direction, paragraph 2.12)
The third primary consideration relates to the best interests of a child. That is not relevant in this case as Mr Cutugno does not have any children.
The Minister has recognised that there are considerations, other than primary considerations, which may be taken into account. As each of those other considerations is given less weight than is given to the primary considerations, I will return to them later in these reasons. Before doing so, I should mention the manner in which I am required to consider primary considerations. This was considered by the Full Court of the Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133 (Branson, North and Stone JJ) in the context of the primary consideration relating to the best interests of the children. The Full Court said:
“32 An identification by the Tribunal of what the best interests of Mr Wan’s children required, and a recognition by the Tribunal of the need to treat such interests as a primary consideration, would not have led inexorably to a decision by the Tribunal to adopt a course in conformity with those interests. That is, even had the Tribunal concluded that the best interests of the children indicated that Mr Wan should be granted a visa, it was legally open to it to refuse to grant Mr Wan a visa. Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of Mr Wan’s children, it was entitled to conclude, after a proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children. However, it was required to identify what the best interests of Mr Wan’s children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.
33 The written reasons of the Tribunal suggest that it regarded the expectations of the Australian community as a primary consideration (indeed, it might be thought, the primary consideration) in the exercise of the discretion to grant or to refuse to grant Mr Wan the visa for which he had applied. The Tribunal was entitled to regard the expectations of the Australian community as a primary consideration provided that it did not overlook that, on the procedure which it had adopted, procedural fairness demanded that it act on the basis that the best interests of Mr Wan’s children were a consideration of equal significance (that is, also a primary consideration). So, for example, the Tribunal might have concluded that the best interests of Mr Wan’s children required that Mr Wan be granted the visa, but that the damage to their interests that would flow from his being refused the visa would be of only slight or moderate significance. If the Tribunal had also concluded that the expectations of the Australian community were that a non-citizen who engaged in conduct of the kind engaged in by Mr Wan would not be granted a visa, and that a decision to grant such a visa would be a most serious affront to the expectations of the Australian community, it would have been entitled to conclude that, in the circumstances of the case, the best interests of the children were outweighed by the strength of community expectations.” (page 142)
Before returning to the balancing of the primary considerations, I will set out the remaining considerations of which the Direction requires consideration. These considerations are considered by the government to be relevant but of less individual weight than the primary considerations. In so far as they are relevant in this case, they include:
“(a) the extent of disruption to the non-citizen’s family, business and other ties to the Australian community; …
(b) genuine marriage to or de facto or an interdependent relationship with an Australian citizen;
(c) the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some way dependant on the non-citizen for support which cannot be provided elsewhere;
(d) family composition of the non-citizen’s family, both in Australia and overseas;
(e) …
(f) …
(g) …
(h) any evidence of rehabilitation and any recent good conduct;
(i) whether the application is for a temporary visa or permanent visa;
(j) the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances; and
(k) the fact that a non-citizen has been formally advised in the past by an officer of the Department of Immigration and Multicultural Affairs about conduct which brought him or her within … the visa refusal and cancellation provisions at section 501.” (Direction, paragraph, 2.17)
Should Mr Cutugno’s visa be cancelled on the basis of his not passing the character test?
The first issue to which I must have regard is Mr Cutugno’s conduct. He has a long history of offending against Australia’s laws. They began when he was 14 years of age and have continued until he was 38. There have been none in the last four years but he has been incarcerated in that period. I find that his offences have mainly centred on taking other people’s property (including motor vehicles), whether by theft, burglary or obtaining by deception, and driving offences. Interspersed with those types of offences have been offences relating to the destruction of property. They have been in the form of convictions for two counts of arson and two convictions for criminal damage and another two for wilfully damaging property.
I also find that Mr Cutugno has four sets of convictions relating to harming or affecting the liberty of a person. At first, they were well separated in time being ten years apart but that separation has now been reduced to five years. The first set dates from 1981 when he was convicted of assault occasioning actual bodily harm as well as false imprisonment. The second occurred in 1991 when he as convicted of assault with an instrument. At the same time, he was convicted of unlawful assault. The third set did not occur until 1995 when he was convicted of unlawful assault. In 2000, the fourth set took place. He was then convicted of recklessly causing injury. His first conviction for drug use occurred in 1983 and others followed at fairly well-spaced intervals until 1997. All of Mr Cutugno’s convictions relating to drug use or possession occurred between 1983 and 2000. Apart from the un-named drugs, they related variously heroin, cannabis or marijuana and amphetamines. They included use and possession of drugs but also extended, in the case of heroin and amphetamines, to trafficking and attempting to traffic and, in the case of marijuana, cultivating.
Taken overall, the history of Mr Cutugno’s offending is serious. It is serious in its pattern of his continuing to offend and in his repeating a similar pattern of offences over and over since he was a young teenager. The longest break that he has had from his offending behaviour appears to have been between 1997 and 2000. Mr Cutugno’s offences have also become more serious. Relatively early in his history, he was convicted of arson. That was in 1977 and is considered by the Minister to be serious. Without any evidence as to the circumstances in which it was committed, I must take it at face value and also regard it as serious. I reach the same conclusion for the same reasons in relation to the conviction for blackmail in 1980 and for false imprisonment in 1981.
His last suite of offences in 2000 included two counts of armed robbery. One involved the use of a pistol, which was non-operational, and the other a blood-filled syringe. Staff and customers in both Tattslotto agencies were found by Judge Robertson to have been terrified. Both crimes must be regarded as serious. So too must the crime involving his stealing the car from the young mother. While I accept Mr Cutugno’s evidence that he did not know that there was a baby in the back when he took the car, the offence of which he was convicted was of recklessly causing injury. Injury, though slight, was caused to the baby’s mother. Although I accept that Mr Cutugno does not consider taking a car with a baby as the sort of crime that he does, I find that he had his mind set on taking the car. He took the car and was reckless as to the circumstances of the mother from whom he stole it and her baby and so reckless as to whether he caused harm. That is a serious matter.
Mr Cutugno has been caught up in a pattern of drug use and offending to fund his drug use. That partly explains his history. I find that he has attempted to rehabilitate himself and that the criminal courts have tried to play a part in that given the suspended sentences and fines that he has received in the more recent years from 1992 until 1997. Mr Cutugno managed to stay away from the courts between 1997 and 2000. I find that he thought that he had learned to say “no” to people in that period when they gave him good ideas that would lead him into trouble. I also find that he was not able to maintain his resolve when he suffered injuries in a car accident. The pain he suffered made him turn to drugs again. I also find, though, that he lost his resolve not to offend at some time before the motor vehicle accident. Although I find on the basis of Judge Robertson’s sentencing remarks that Mr Cutugno had been released from prison in 1993 or 1994. He was convicted of further offences relating to property and unlawful assault in 1995.
Mr Joblin pondered whether Mr Cutugno would have offended again had he not met a former colleague from his prison days. It may be that he would not have for I am satisfied after listening to Mr Cutugno’s giving evidence and having regard to Mr Joblin’s evidence, that Mr Cutugno is somewhat easily led by others. He needs to be in a situation in which he has the inner strength to go his own way. If all is going well for him, he can do that. That was shown by the three years between 1997 and 2000. If it does not, as is shown by his meeting his former colleague when he was still suffering pain from his car accident, he cannot. That is shown by his offences in 2000. So to say that Mr Cutugno would not have re-offended had he met his former colleague, is only part of the story. A second part of the story involves Mr Cutugno’s circumstances at the time he is given an opportunity to stray from the path he would ideally like to be following. The third and final part of the story relates to Mr Cutugno’s part in the offences of armed robbery. In neither of the two offences was he simply implicated in a set of events orchestrated and enacted by another. In both, he played an active part. Indeed, in both, he supplied the weapon or part of the weapon: a gun in one and the blood in the syringe in the second.
Other factors that are relevant in considering whether Mr Cutugno is likely to re-offend include his being on methadone. I accept that Mr Cutugno would like not to be taking methadone at all when he is released from prison. Whether or not that is achievable is another question for he is still on 40mls each day. That is certainly a greatly reduced amount compared with the 100mls that he was formerly taking but he has been taking 100mls for an extended period. I accept that methadone will take away Mr Cutugno’s physiological and psychological craving for heroin. It does not, however, cure Mr Cutugno from his drug problems. While he has those, he remains vulnerable to resorting to drugs should he face difficulties as he did after the car accident. While he remains vulnerable, he also remains vulnerable to committing further crimes to fund any return to his drug taking.
I accept that Mr Cutugno has a close family as well as many members of his broader family and family friends who want to help him and to support him in his rehabilitation. Their support is important but all their support will not help him if he should not have the inner strength to resist a return to his old ways. I accept that Mr Cutugno wishes to change his ways. He has plans to move away from an area where he may meet people who may tempt him. He wants to work as a car detailer and is understandably very proud of the fact that he has a job to go to on his release. He plans to use the money from the sale of his mother’s house and his own to buy a couple of acres so that he can breed and train greyhounds. These are worthy ideals but I am concerned about how realisable they are given the needs of Mr Cutugno’s brother, Agostino, to be taken to his psychiatrist and the location of his sister’s house and that of his other brother, Tony. Both his other brother and his sister and their families are part of the existing support network for Mrs Cutugno and for Agostino. Mr Joblin spoke of Mr Cutugno’s having a childlike idealism regarding his ambitions so that the reality fails to match what he wants. His idealism is to be encouraged but he is far from achieving it at this stage. Given Mr Cutugno’s previous pattern of offending and of his failing last time he tried to keep away from offending, the risk of his again failing to achieve what he wants and to commit further crimes is high.
As I have said in previous cases, deterrence in the context of the character test is always difficult. There is no empirical or other evidence that I have been given as to the deterrent effect that refusing a person entry to Australia or requiring their departure has on other people’s behaviour. It may be that people who know Mr Cutugno know of what happens to him but would that deter them from behaviour leading to their committing offences? They might not have engaged in such behaviour in the first place or even thought of it. If they did, they might be Australian citizens in any event. Does the news of what happens to a person travel through the community in ways I am not aware of? I am left in the realm of speculation and so do not make a finding one way or the other regarding deterrence.
That brings me to the expectations of the Australian community. It is fair to say that the Australian community expects to be able to go about its lawful business without being robbed of their earnings or property or having their physical safety threatened. It expects that its members will not be confronted with a person armed with weapons, such as a pistol or syringe, that can clearly do them harm. Confrontation of that sort can permanently harm a person and change their lives even if there is no actual physical harm inflicted. It acknowledges that people can change and should be given a chance if they are genuinely trying to rehabilitate themselves and showing that they are succeeding. It acknowledges that they can grow up and change their ways. At the same time, it acknowledges that people generally become more set in their ways as they grow older. They can change and they may do so but the likelihood is reduced.
Mr Cutugno’s mother, I find, has health problems. She is due to have surgery on her knee and will have difficulties with her mobility for a time. At the age of 74, she is continuing to care for her son, Agostino, who suffers from schizophrenia. It is a very large burden for her to bear as she grows frailer. She has the help of her son, daughter and daughter in law as well as some assistance from other members of her extended family. Between 1992 and 2000, Mr Cutugno lived with her and I accept that he helped her with tidying the house and the yard and some cooking. I understand that Agostino was diagnosed with schizophrenia some time in 1986. Before 1992, Mr Cutugno would have been home far less often given his terms of imprisonment. Since 2000, he has not been home at all as he has been in prison. The family has had to cope without him or his assistance.
I accept that the family plans that Mr Cutugno will live with his mother and care for her and for Agostino. They, and especially his sister, would like some support. Caring for the elderly and the ill is a hard job however close a family may be. The carers look for respite from time to time however much they love those for whom they care. If Mrs Cutugno does not have assistance to care for herself and Agostino, her life may become a greater struggle than it is. She will continue to have the assistance of her other family members. Her daughter is the mother of six but, on the basis of her evidence, I find that her six children are grown up and now have lives of their own. She should also be able to have her own life but she and her brother and sister in law may have to continue to shoulder the burden assisted by those services available through various schemes to assist the elderly and disabled.
Whether or not the Cutugno family can look to Mr Cutugno to provide that respite is questionable. Certainly, he states that he is willing to provide it and I accept his evidence that he is close to his brother. It is evidence that is supported by other family members as well as by Mr Joblin. Whether or not Mr Cutugno can care for his mother and brother depends on whether or not he is available to assist and that depends on whether or not he re-offends. If he re-offends, time will be taken with matters associated with planning them, if there are any plans, and with any loss of his freedom of movement on his being apprehended. His loss of freedom of movement could be the loss of his driver’s licence, as has occurred on some previous occasions when he has stolen a motor vehicle or committed a driving offence, or it could be imprisonment. Given my previous findings regarding the likelihood of Mr Cutugno’s re-offending, I am satisfied that the chances of Mr Cutugno’s being able to provide the necessary care for his mother and for Agostino are low.
If Mr Cutugno has to live in Italy, I accept that both Mrs Cutugno and Agostino will be deeply distressed quite apart from issues regarding their care. Agostino is threatening self-harm. Other family members will also be devastated. It is one thing to have a brother separated by miles and the walls of a prison but in the same country and quite another to have him in another country. Visits will be infrequent if money permits them at all. This will be hard for all of the family. Mrs Marzano lived in Italy for 15 years until 1990. She does not wish to return there and speaks highly of living in Australia. None of the rest of the family wants to return there to live. Mr Cutugno will be quite alone with very little of the language and a very limited intelligence to acquire it. He has no skills with which to attract employment and he knows of no-one to whom he can turn if he should be required to live there. It is a country in which he has not lived since he was eight years of age. Life for him will be very difficult indeed.
I find that Mr Cutugno was not given any warning that his visa would be cancelled if he broke the law. Ideally, those who are given visas to remain in Australia permanently should be given that warning in clear and unmistakeable terms. Mr Cutugno thinks that he would have been deterred in committing offences had he been given such a warning. I do not accept that he would have been and make that finding having regard to his behaviour in 2000. Despite his arrest and being charged with armed robbery and related offences in 2000, he committed further offences of theft of a motor vehicle and armed robbery while on bail. It could be thought that his being charged was a sufficient “wake up call” to a person who was determined to set himself on the right track and not be parted from his family and yet Mr Cutugno did not heed it. The threat of deportation is unlikely to provide any greater deterrent effect.
Again, this is a most difficult case. In addition to the issues associated with the possible separation of the members of any family, it involves issues related to the care of the mentally ill and of the frail aged. At the same time, I must have regard to the principle that is common to all cases. That is that the principle behind the character test is, as the Minister has said, “… to protect the community from criminal or other reprehensible conduct …” (Direction, Preamble). As the Full Court of the Federal Court said in Goldie v Minister for Immigration and Multicultural Affairs, deficiencies in Mr Cutugno’s conduct must be measured against the level of harm that that would be presented by his remaining in the Australian community on a permanent basis. That, of course, is not to diminish the other matters to which I must have regard. When I have regard to all of those issues, I consider that the risk of Mr Cutugno’s re-offending and committing further crimes that show disregard for the members of the Australian community and its laws is such that the need to protect that community outweighs the undeniable difficulties that will face Mr Cutugno in Italy and those of his family in Australia.
For the reasons I have given, I affirm the decision of the respondent dated 13 October 2004.
I certify that the hundred and seven preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie,
Signed: ...............................................................
R. Crook Associate
Date of Hearing 7 January 2005
Date of Decision 12 January 2005
Counsel for the Applicant Ms D Rasheva
Solicitor for the Applicant Kabo LawyersSolicitor for the Respondent Ms C Petre
Clayton Utz
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