Damaskos and Minister for Immigration and Multicultural and Indigenous Affairs
[2002] AATA 500
•21 June 2002
CATCHWORDS – IMMIGRATION – temporary visa – character test – whether applicant has a substantial criminal record – whether sentenced to a term of imprisonment – sentence suspended and no period spent in prison – failure to pass the character test – exercise of discretion – past and present conduct – harm to and expectation of the Australian community – decision set aside.
Migration Act 1958 s. 12, 20, 31, 201, 499, 501, 501G
Sentencing Act 1991 (Vic)
Criminal Law (Sentencing) Act 1988 ss. 38, 58,
Acts Interpretation Act 1901 s. 15AC and 15AB
Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Meng Kok Te v Minister for Immigration and Ethnic Affairs and Another [1999] FCA 111
Scott v Commercial Hotel Merbein Pty Ltd [1930] VLR 25
Minister for Immigration and Ethnic Affairs v Sciascia (1991) 103 ALR 307
DECISION AND REASONS FOR DECISION [2002] AATA 500
ADMINISTRATIVE APPEALS TRIBUNAL )
) S2002/153
GENERAL ADMINISTRATIVE DIVISION )
ReROBERTO DAMASKOS
Applicant
AndMINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal: Miss S A Forgie (Deputy President)
Date: 21 June, 2002
Place: Melbourne
Decision:The Tribunal decides to:
1.set aside the decision of the respondent dated 7 May, 2002; and
2.substitute a decision that the applicant's visa should not be cancelled on character grounds pursuant to s. 501 of the Migration Act 1958.
(sgd. S A Forgie)
S A FORGIE
Deputy President
REASONS FOR DECISION
On 7 May, 2002, a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister"), decided to refuse to grant the applicant, Mr Roberto Damaskos, a visa on the basis that he did not satisfy the character test set out in s. 501 of the Migration Act 1958 ("the Act"). Mr Damaskos lodged an application to review that decision on 14 May, 2002.
At the hearing, Mr Damaskos was represented by Mr Ibbotson and the Minister by Mr Telfer. The documents lodged pursuant to s. 501G of the Act ("G documents") and those served on Mr Damaskos were admitted in evidence together with statements by Mr Damaskos, Mr Gregory Damaskos, a booklet about Authenticity, a copy of Mr Gregory Damaskos's application to visit Australia, Mr Damaskos's Incoming Passenger Card and statements by Ms Anne Kidman, Mr John Hown, Mr Geoffrey Adams, Ms Jeanette Rosadoni, Ms Margaritis Couris, Ms Linda Ewing, Mr Franco Princi, Ms Aphrodite Kerylidis, Ms Mariana Galdies and Mr Graham Thompson. Mr Damaskos gave evidence in support of his case as did his brother, Mr Gregory Damaskos, Mr Graham Thompson, Mr Franco Princi, Ms Jeanette Rosadoni and Mr Geoffrey Adams.
THE ISSUE
The first issue is whether Mr Damaskos passes the character test set out in s. 501(6) of the Act. That requires a consideration of whether he has a substantial criminal record and, more particularly, whether a suspended sentence of imprisonment is a term of imprisonment. If he does not pass that test, the second issue is whether the discretion in s. 501(3) should be exercised to refuse to grant him the visa.
BACKGROUND
Many of the background facts were not in dispute between the parties. In light of that and on the basis of the evidence, I have found the facts that I will set out in the following paragraphs.
Early life
Mr Damaskos was born on 19 November, 1967 in Lindenberg in Germany. As his mother was German and his father Greek, he has both German and Greek citizenship. He has two brothers and a sister. The family lived first in Germany but then moved to Greece where Mr Damaskos's younger brother was born. Mr Damaskos's father owned a coffee shop/restaurant. Life was not happy for the family. Mr Damaskos's mother suffered from depression and she and his father did not have a loving relationship. She died in 1992 after undergoing surgery. Mr Damaskos's younger brother and his sister continue to live in Athens in Greece. His older brother, Mr Gregory Damaskos, came to Australia in 1990.
Mr Damaskos completed both his primary and secondary schooling in Greece and completed Year 12 in 1986. He also undertook additional studies in classical music at the Music School of Athens from the age of eight years. His studies began with the piano but then encompassed the bass, flute and percussion instruments. After he left high school, Mr Damaskos spent the first year developing photographs in a photography shop as well as working from time to time in the hospitality industry as a barman and waiter.
While at secondary school, Mr Damaskos had smoked hashish and marijuana. He did so with his school friends on a recreational basis. When he was approximately 18 years of age, he smoked heroin for the first time. Again, he did so with his friends with whom heroin was very popular. Mr Damaskos also injected heroin a few times. There is no evidence to suggest that Mr Damaskos was dealing in drugs and I accept his evidence that he was not. He bought only for his own use.
Life in Germany
When he was growing up, the family returned to Germany for holidays every second year or so. They would visit family and friends. He decided to move to Germany in October, 1987. He had various reasons for moving there. One was his desire to see countries outside Greece. Another was to continue his music studies. At first, he lived in Lindenberg where he worked as a laboratory assistant in a photographic laboratory. After three months, he moved to Berlin which was a larger city and which he saw as having larger opportunities for him socially and musically as well as giving him a wider range of employment opportunities. He worked at first to obtain some money and then began studies in jazz music at the Music School of Kreuzberg. At the same time, he worked in the hospitality industry as a barman and waiter. His brother, Gregory, was also living in Berlin at this time and the two shared accommodation for approximately a year.
After living in Berlin for a few months, Mr Damaskos again began to smoke heroin and marijuana. He did so in order to escape from the world. Between 1987 and 1991, his addiction to heroin progressively worsened. On several occasions, he tried to give up drugs and did so by returning to Greece and his family. He would go without drugs while he was home but, on returning to Berlin where drugs such as heroin were readily available and very cheap, would lapse into taking them again. Drugs were very available in the hospitality industry in which he worked. Even in Berlin, he would try to give up but his abstinence would only last for a month or so.
Arrival in Australia
Mr Damaskos arrived in Adelaide in September, 2001 with his brother, Mr Gregory Damaskos. He did not reveal his previous convictions on the Incoming Passenger Card he signed. They travelled immediately to Authenticity at Port Elliot. I have described Authenticity below. He applied to extend his stay as a visitor on 17 December, 2001 and did reveal them in that document as he did in his application dated 2 January, 2002 for a student visa.
Mr Gregory Damaskos
Mr Gregory Damaskos also grew up in Athens and, based on his evidence, I find that he also took drugs. Initially, he took barbiturates and, later, marijuana, LSD and those drugs generally classified as uppers. He found that the drugs lifted his depression and permitted him to have some feeling and, at the same time, to suppress his pain. These seemed to help him deal with the inner struggle and pain he felt in his family home. Music was another avenue he used to escape into his own world. Later, he began to take heroin. He found this to depress a broad range of his brain functions and to produce a near sleep experience. It eased the pain and produced a feeling of euphoria that he desired. That feeling only continued while he remained on heroin. When he abstained from taking it, he felt extreme pain at the emotional, physical and mental level.
Recognising that he was addicted and the consequences of his addiction, Mr Gregory Damaskos moved to Berlin in 1987. He looked for work as an aircraft mechanic as he had completed a diploma in aircraft mechanics while in Berlin. His attempts were not successful and he turned to the hospitality industry with which he had a great deal of familiarity through his father's business.
In 1989, Mr Gregory Damaskos met an Australian girl and they lived together in Germany for a year. The relationship helped him to break his habitual use of drugs. He and his girlfriend then travelled to Australia on 3 April, 1990. At that time, Mr Gregory Damaskos vowed to himself to start a new life. He took up meditation classes, yoga and personal development classes. At the same time, he began to study natural therapies. He felt that he had to undo the damage that he had caused to himself from years of habitual drug abuse.
Mr Gregory Damaskos became a permanent resident in Australia. He opened his Health Resort, called Authenticity, in 1997.
Convictions
Mr Damaskos has been convicted of a number of offences in Germany. They are:
Court (Date) Date of Offence Offences of which convicted Sentence
Local Court Tiergarten, Berlin (24.7.91) June, 1991 continued unauthorized acquisition and possession of narcotics 4 months imprisonment 2 years probation ban on employment, supervision, instruction and training of juveniles Probation extended to 15 November, 1994 Remission of penalty from 21 May, 1996
Local Court Tiergarten, Berlin (28.10.92) 9 December, 1991 unauthorized disposal of narcotics in commission with illegal acquisition of narcotics 6 months imprisonment 4 years probation
Local Court Tiergarten, Berlin (23.4.93) 15 October, 1992 three thefts 9 months imprisonment 3 years probation
Local Court Tiergarten, Berlin (7.12.93) 28 August, 1993 eight thefts 1 year imprisonment 3 years probation
Local Court Tiergarten, Berlin (8.8.97) 20 January, 1997 two thefts 4 months imprisonment 3 years probation
Local Court Tiergarten, Berlin (21.6.00) 20 May, 1998 theft pecuniary penalty for 50 days at DM15.0 per day
THE EVIDENCE
Relationships with family
Mr Damaskos said that he and his brother are very close in their ages and in their relationship. This is despite their being separated. They have maintained contact since Mr Gregory Damaskos has been in Australia through telephone calls to each other. On one occasion in 1995, his brother had visited Europe and they had seen each other then. Mr Damaskos knew that his brother had a health retreat before he came to Australia in 2001. He said that he could see that his brother's environment was very good for him. Mr Damaskos asked his brother about his visiting him in Australia. They agreed that he would visit Australia and stay with his brother.
Circumstances of offences
Apart from the records of convictions and sentences, there is no information concerning the convictions other than the evidence of Mr Damaskos. In relation to his first conviction, he said that it concerned approximately half a gramme of heroin that he had acquired for his personal use. It was discovered when the police stopped and checked him. The second again concerned heroin and occurred after he had purchased some for his personal use. He was leaving the house where he purchased it as the police arrived. When he realised who they were, he threw the heroin away and hoped that they would not see it. He hoped in vain. As with the first offence and all subsequent offences, Mr Damaskos pleaded guilty. He was aware that he had offended while on probation for the first offence. His explanation for his having done so was that he was addicted to heroin at the time. It was not possible for him to control his habit and to be a good man. He needed heroin as people need water.
Mr Damaskos's third court appearance led to his first convictions for theft. There were three in all and he said that they were convictions for the theft of CDs or goods of that nature. He stole them to obtain money to support his drug habit. Before his convictions for theft, he had made contact with a rehabilitation clinic as he had started to need to live drug free. He told the court that he wanted to do that and he thought that the court gave him an extra chance because of that.
The fourth court appearance also led to convictions for thefts being eight in all. Again they involved CDs, food and alcohol, Mr Damaskos said. He was not in a good situation as it was winter time, he was using heroin and needed money for his drug habit. He also need food for himself. It was shortly before he was to attend a rehabilitation clinic. When he went to the court, he told it the date for his admission to the clinic. On his previous occasion, he had not been able to give the court a date.
Mr Damaskos said that he attended the clinic for ten months. He remained drug free for the next two and a half years following his admission. He resumed his music studies and also began to work again in the hospitality industry as a barman and waiter.
In 1997, Mr Damaskos resumed his drug habit and took heroin. He could not explain why he did it. Now that he is out of the environment, he cannot see why he did it. As a result of his doing so, he again stole in order to support his drug habit. This led to his fifth and sixth court appearances for theft. The fifth was for two bottles of alcohol and a few CDs. The sixth was for a bar of chocolate that he ate in a supermarket.
Mr Damaskos's efforts to give up drugs
Mr Damaskos said that his mother's death in 1992 had been a big shock to him. He had been very close to his mother. This was confirmed by Mr Gregory Damaskos, who said that his brother had been very emotionally affected by their mother's death. His taking drugs was a way of killing his emotions. He underwent his first rehabilitation programme in 1994 and was on methadone for a few months.
In between his fifth and sixth court appearances, Mr Damaskos said that he tried to cure himself of his addiction to heroin by abstaining from taking it but he found that he only returned to its use. He also went on a methadone programme in Berlin and then abstained without methadone. At the time, he did not have the emotional stability to maintain his drug free life.
Mr Damaskos said that he stopped taking heroin in 2000 when he met his girlfriend. It was a very important relationship to him and he wanted to "keep it clean". As a consequence, he tried very hard not to go back to his old life. He wanted a fresh start. His girlfriend's parents had a hotel on a Greek island. They both travelled there and he worked in the hotel where he was responsible for the cocktail bar. He remained on the island for the winter and returned to Berlin for the summer where he again worked in the hospitality industry. Mr Damaskos said that he knew that he had to be very careful. He did not want a stressful life as he wanted to keep his distance from drugs. Mr Damaskos said that he did not use drugs in Berlin during this period of his life. At the end of the summer, he and his girlfriend returned to the hotel in Greece and worked in the cocktail bar until he came to Australia in 2001.
In a letter sent to the Department and dated 3 March, 2002, Mr Damaskos had written that he had not engaged in any unlawful acts since 1998 (G documents, page G18-75). When challenged by Mr Telfer that he had continued to engage in such acts as he continued to use heroin, Mr Damaskos replied that he had done so "more or less" but he had not done anything against society. Using heroin was something he did against himself.
When asked why it should be thought that he would continue to remain drug free when he had only been drug free for two and a half years since his late teens, Mr Damaskos replied that he is older now and has more experience. In addition, he has studied more. This is a time when he can do something for others. He is no longer in the environment of drugs. He was able to stay away from them when he worked at the hotel in the Greek islands.
Mr Gregory Damaskos said that his brother made a serious attempt to give up the drug habit in 1994. He did so through a professional assistance programme lasting ten months. Soon after his release from the programme, Mr Gregory Damaskos visited him in Germany and stayed with him for a year over 1995 and 1996. He felt that "a great deal of inner work was accomplished" between them (Exhibit C, paragraph 11) but he had to return to Australia.
Mr Gregory Damaskos said that his brother began again to take drugs and continued to do so for another two years. He then underwent another period of therapy in Greece. His treatment included his taking methadone. As methadone was cheaper than heroin, his brother's need to engage in petty larceny was eliminated, Mr Gregory Damaskos said.
When his brother's condition began to stabilise, Mr Gregory Damaskos travelled to Greece in August, 2001 and invited him to come to Australia to spend some time at Authenticity. His plan was that his brother would "do some further inner work and find some new direction in life" (Exhibit C, paragraph 12).
Mr Gregory Damaskos described his brother's current condition in his statement:
"15. Overall, I see Roberto to be in a well and stable condition and highly unlikely to ever have another relapse. It has been my professional experience that when several attempts have been made to withdraw from the substance of addiction, be it alcohol, cigarettes or illicit drugs, and as have the intervals between these relapses has increased while the durations of relapse have been minimised, that the person usually has accumulated at that stage enough strength and experience in order to manage and work through the addiction. A relapse is a natural process that equips the person with the necessary tools and experience, it is impossible for a person to achieve such a mammoth task, which involves his whole being in life, without having made several attempts. New ways of living need to be established, activities, interests, time management etc. This is assisted at Authenticity by the general positive environment – fresh sea air, gym facilities, spa bath, libraries, art and other facilities as well as his own newly developed interest in natural living and the associated therapies, notwithstanding my love and personal support to him." (Exhibit C)
In his oral evidence, Mr Gregory Damaskos said that he had seen no outward signs of addiction in his brother. Mr Gregory Damaskos said that he is generally very optimistic. In his experience, the longer the time that a person is able to abstain from drugs then the shorter the time that a person relapses if he or she does so. Another factor pointing to a person's not relapsing is his or her taking a new direction in life by, for example, marrying or undertaking studies. He also looks to stability and any addictive behaviour in which he or she may indulge. In his brother's case, there is no alcoholism, no cigarette smoking and no use of drugs. He is exercising and practising yoga as well as natural therapies. His behaviour is not compulsive and not destructive.
Mr Damaskos's entry to Australia
Mr Damaskos said that, through his travel agent, he obtained an Electronic Travel Authority visa. When he was on the plane, there was a document that he had to complete. As his brother reads and speaks English a lot better than he does, his brother decided to fill out the form for him after he had asked him questions. Mr Damaskos said that they were "a bit confused" as to the meaning of the question regarding criminal convictions. That question, which appears on the Incoming Passenger Card he signed on 22 September, 2001, reads "Do you have any criminal conviction/s?". Mr Damaskos ticked the box marked "no" in answer to that question. He said that what he and his brother believed that he was being asked was whether he was in any trouble with the law. His brother asked him if he had any problems with the law. He thought that he was not as he was no longer on probation and the charges against him had long ago been finalised. Had he thought that he was being asked about his convictions, he said, he would certainly have revealed them. They are no secret, he said.
Mr Damaskos said that he went straight to Port Elliot. He extended his visa as he thought that he would like to stay a little longer. He lodged that on 17 December, 2001. When asked in that form whether he had "… ever … been convicted of a crime or offence in any country (including any conviction that is now removed from official records)?", he ticked the box marked "Yes" (G documents, page G4-14). In response to a letter from the Department of Immigration and Multicultural and Indigenous Affairs ("Department") dated 9 January, 2002, Mr Damaskos supplied police certificates in relation to his convictions and completed a declaration setting out further information relating to his character.
In cross-examination, Mr Damaskos said that his brother helped him with the application to extend his visa. They discussed the question and were again confused as they did not know exactly what it meant. This time, however, there were other people who knew a little bit more than they did and Mr Damaskos now understood that he was being asked about his past. He had not known that when he came as a tourist. A tourist can come for three months, he said, with or without a past. It had only taken an hour to obtain his Electronic Travel Authority visa, he said. That gave him the impression that it was not a problem to come to this country.
Mr Damaskos knew that his brother had some problem with the police when he lived in Greece. He was found to have a quantity of drugs. He did not know whether his brother had told the Department of his convictions or not. When he completed his Application to visit Australia on 3 April, 1990, Mr Gregory Damaskos placed a cross against the box marked "nein/no" in response to the question, "Hier oder in einem andoren Land vorbestraft/Been convicted of a criminal offence in any country?" (Exhibit 3). In giving his evidence, Mr Gregory Damaskos said that his recollection was that he had been asked whether he had been sentenced for drug trafficking. He has not been and has never intentionally tried to mislead the Australian government. In cross-examination, Mr Gregory Damaskos said that he had been asked about his conviction when he applied for permanent residence. He could not recall whether he had filled out a form about his conviction and his not telling the Department about it but did not dispute that he could have done so. Mr Gregory Damaskos knew that he had written out a statement that had been dictated by an officer of the Department. He considered that he had been helped by the Department to obtain his permanent residency.
When asked by Mr Telfer how he could have been confused about his brother's Incoming Passenger Card when he had trouble as a result of answering a question about convictions in the negative, Mr Gregory Damaskos said that they had made an honest mistake. He did not think that being in front of a court imposed a problem. Had he thought that there would be problems, he would have taken steps to address them.
Mr Gregory Damaskos said that there is a distinction in Greece between minor offences and a crime. A minor offence is a ptaesma and a crime, known as eglimatias, involves something serious such as murder or rape. He had understood the words "criminal convictions" to mean that the person was a convict and a criminal. A person who has committed a minor offence is not a criminal or a convict, he said. A person who possesses heroin for his or her own use is not a criminal or a convict.
Mr Damaskos's present and future plans
Since being at Port Elliot, Mr Damaskos said, he has seen how important it is to have a place such as Authenticity. He wants to start in the industry. He has enrolled at the South Australian Education Centre for a course in Remedial Massage, Natural Massage and Naturopathy. The subjects lead to a Diploma. His plan is that he complete the course and, if possible, stay in Australia. If he is not permitted to stay in Australia after his course it is "not so important", he said. What is important is that he has obtained the knowledge and he can take that anywhere in the world. His brother's idea is that he would like to establish a similar business in the Greek Islands. That would be a perfect place, Mr Damaskos thought, as the people need a lot of support.
When Mr Damaskos had spent time at Authenticity, Mr Gregory Damaskos said that he felt that his brother had become inspired and decided to take up studies in the field of natural therapies. His brother had given up all forms of addictive drugs including alcohol and cigarettes. In addition, he had taken up his music again. So that he and his brother can play together, he has purchased a professional keyboard. They have been joined by others and there is some prospect of their having a recording session.
Mr Gregory Damaskos said that he hoped that, when his brother had completed his studies, he would operate a retreat that he, Mr Gregory Damaskos, planned to open in Greece. That retreat would be in a vein similar to Authenticity.
CONSIDERATION
Framework of Act
Under the Act, the Minister may grant a visa 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 ("the 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 a particular class 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 any bridging visa is that, at the time the decision is made, the person satisfies the requirements of public interest criteria. Schedule 4 sets out the public interest criteria.
At the time that the delegate's decision was made and of this review, criterion 4001 provided that:
"Either:
(a)the applicant satisfies the Minister that the applicant passes the character test; or
(b)the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the applicant would fail to satisfy the Minister that the person passes the character test; or
(c)the Minister has decided not to refuse to grant a visa to the applicant despite reasonably suspecting that the applicant does not pass the character test; or
(d)the Minister has decided not to refuse to grant a visa to the applicant despite not being satisfied that the applicant passes the character test."
Section 501(1) of the Act provides that:
"The Minister may refuse to grant a visa to a person if 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 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)the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or
(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."
For the purposes of the character test, a person has a substantial criminal record if, among others:
"(a) the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person as 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 person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution." (s. 501(7))
A "sentence" is defined to include "… any form of determination of the punishment for an offence" and "imprisonment" to include "… any form of punitive detention in a facility or institution" (s. 501(12)).
Sections 501(8), (9) and (10) go on to deal with situations in which a person has been sentenced to periodic detention or ordered to participate in certain programmes or where the conviction has been quashed or the person pardoned. They provide:
"(8) For the purposes of the character test, if a person has been sentenced to periodic detention, the person's term of imprisonment is taken to be equal to the number of days the person is required under that sentence to spend in detention.
(9)For the purposes of the character test, if a person has been convicted of an offence and the court orders the person to participate in:
(a)a residential drug rehabilitation scheme; or
(b)a residential program for the mentally ill;
the person is taken to have been sentenced to a term of imprisonment equal to the number of days the person is required to participate in the scheme or program.
(10)For the purposes of the character test, a sentence imposed on a person is to be disregarded if:
(a)the conviction concerned has been quashed or otherwise nullified; or
(b)the person has been pardoned in relation to the conviction concerned."
Does Mr Damaskos have a substantial criminal record?
Mr Ibbotson submitted that Mr Damaskos does not have a substantial criminal record. The central point of his submission was that, as Mr Damaskos's terms of imprisonment had, in effect, been suspended, they did not come within the expression "term of imprisonment" as used in s. 501(7)(d). He drew a distinction between that provision and s. 201 which is concerned with deportation. A person may be deported in certain circumstances if he or she has committed "… an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year" (s. 201(c)). Mr Ibbotson referred also to the predecessor of s. 201 of the Act i.e. s. 12. Section 12 provided that:
"Where (whether before or after the commencement of this Part) an alien has been convicted in Australia of a crime of violence against the person or of extorting any money or thing by force or threat, or of an attempt to commit such a crime, or has been convicted in Australia of any other offence for which he has been sentenced to imprisonment for one year or longer, the Minister may, upon the expiration of, or during, any term of imprisonment served or being served by that alien in respect of the crime, order the deportation of that alien."
This section was considered by the Full Court of the Federal Court in Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 (Bowen CJ and Deane J, Smithers J dissenting) in the context of Mr Drake's having been sentenced to 12 months' imprisonment but the court's having directed that he be released after he had served three months and entered a bond on his own recognizance to be of good behaviour. The majority concluded:
"It would seem clear that the sentence referred to in s 12 of the Migration Act is the sentence of imprisonment imposed and not the term of imprisonment actually served. The fact that a person who had been sentenced to be imprisoned for a term of one year was, by reason of remissions or release on parole, not required to serve the full term of imprisonment imposed would not affect the fact that he had been sentenced to imprisonment for one year for the purposes of s 12 of the Migration Act. In such a case, the remissions could not properly be regarded as part of the sentence imposed. They are the result of the context in which the sentence imposed operates. Similarly, in the case of premature release on parole, the release itself — even when consequent upon the fixing of a minimum non-parole period — cannot properly be regarded as altering the character of the sentence of imprisonment imposed. The fixing of a non-parole period neither confers any right of premature release upon the person sentenced nor qualifies the nature or term of the sentence of imprisonment actually imposed. In the event that the person sentenced is prematurely released on parole, the residue of the sentence of imprisonment is not extinguished. If the conditions of parole are broken, the person released can be returned to prison to serve the residue of the term imposed.
On the other hand, a direction that a person sentenced to a term of imprisonment be prematurely released pursuant to s 5(1)(b) of the Ordinance is part of a composite sentence and operates as a qualification or condition upon the sentence of imprisonment imposed. Such a direction confers upon the person sentenced the right to be released at the nominated time upon his giving the security specified by the sentencing court. Upon such release, the residue of the sentence imposed does not remain unextinguished in the sense that, if the conditions of release are broken, the person released can be required to serve it. The release, upon the giving of the specified security, brings the sentence to an end. Breach of the conditions of release will not revitalize that sentence. Such breach is punishable under a separate section (s 6 of the Ordinance) which provides for the possible imposition of a new independent sentence." (page 66)
Their Honours went on to consider the context in which s. 12 appears. As the Minister's making a deportation order can interfere drastically with the liberty of the individual, it is important to construe his or her powers strictly, they said, and continued:
"It is unfortunate that the liability of a person to be made the subject of a deportation order with all its consequences should depend upon verbal niceties of the type involved in the present matter. There is, indeed, much to be said for the view that a finding that the plaintiff was, for the purposes of s 12 of the Migration Act, sentenced to a term of imprisonment of one year involves a preference for the shadow of verbalism over the substance of reality. In our view, however, this is not so. The fact that the learned magistrate directed that the plaintiff be entitled to be released upon recognizance after he had served three months in prison does not alter the fact that the magistrate determined that the appropriate sentence to be imposed for the offence of which the plaintiff was guilty was a term of imprisonment of one year. The magistrate in fact imposed that sentence of imprisonment. True it is that, by entering into a recognizance and undertaking obligations which, if breached, would render him liable to be sentenced to a new term of imprisonment, the plaintiff was entitled to secure his release after he had served three months of the term imposed and that, on such release, his liability to serve the balance of the term imposed was extinguished. None the less, in our view, the plaintiff was, under the composite sentence imposed, sentenced to a term of imprisonment of one year. We are unable to read the relevant words of s 12 in a sense which would warrant the conclusion that their requirements were not satisfied by the sentence which was imposed upon the plaintiff." (page 68)
A differently constituted Full Court of the Federal Court considered s. 201(c) in Meng Kok Te v Minister for Immigration and Ethnic Affairs and Another [1999] FCA 111 (23 February, 1999, Sackville, North and Merkel JJ). Mr Meng Kok Te had been sentenced, as varied on appeal, to "12 months imprisonment, three months of sentence suspended for three months" (paragraph [7]). If, he were to be convicted of another offence punishable by imprisonment within 24 months of his release, then pursuant to the Sentencing Act 1991 (Vic) as it was then enacted, a court would be obliged to order that he serve the three months of imprisonment unless it were satisfied that it would be unjust that he do so. The Full Court considered that the reasoning in the Drake case applied equally to the sentence before them.
When invited not to follow Drake, the Full Court declined the invitation. The language of s. 12 had been judicially considered and, in choosing to adopt substantially the same language in the re-enactment of that section in the form of s. 201, there is authority that there is a presumption that Parliament considered that the words would bear the meaning already judicially attributed to them. In any event, the Full Court was not persuaded that Drake had been incorrectly decided and gave five reasons for its conclusion:
"First, as Bowen CJ and Deane J said, s 201(c) must refer to the sentence of imprisonment imposed on a non-citizen and (contrary to Mr Tehan's submissions) not to the term of imprisonment actually served by the non-citizen. It would have been very simple for Parliament to say that the precondition for the issue of a deportation order is to actual imprisonment for a term not less than twelve months. Indeed, where Parliament intended to refer to a term of actual imprisonment it has said so directly. For instance, in assessing the period of time for which a person has been present in Australia for the purpose of s 201 and s 202(1) any period for which 'a person was confined in prison' is to be disregarded (s 204(1)).
Secondly, the language used by Parliament in s 201(c) of the Migration Act directs attention not merely to the sentence imposed on the non-citizen, but to the quality of the offence committed by him or her, reflected in the sentence imposed by the court. It requires the offence to be one for which the non-citizen was sentenced to imprisonment for a period of not less than one year. It focuses upon the sentence which the sentencing court has determined is the appropriate punishment for the offence. The County Court in the present case was not entitled to impose a suspended sentence of imprisonment on the appellant unless the sentence of imprisonment, if unsuspended, was regarded as appropriate in the circumstances: Sentencing Act, s 27(3). Thus the offence for which the appellant was sentenced was one for which the court considered a sentence of imprisonment for twelve months to be appropriate. This strongly suggests that the offence for which the appellant was sentenced was 'an offence for which [he] was sentenced...to imprisonment...for a term of not less than one year,' within the meaning of s 201(c) of the Migration Act.
Thirdly, as we have explained, the circumstances of the present case provide an even stronger argument for the application of s 201(c) of the Migration Act than those in Drake v Minister. When the appellant was sentenced, it could not be said that he would actually be incarcerated for a period of less than twelve months. Whether he would be required to serve the full term of twelve months imprisonment depended upon whether he re-offended and, if so, whether a court would have considered it unjust to restore that part of the sentence held in suspense.
Fourthly, on the appellant's argument it is necessary for the Minister to wait for a considerable period after a suspended sentence has been imposed before being able to determine whether an offender is within s 201(c) of the Migration Act. Under Victorian law, as in force in 1992, that period could be up to four years from the date of the order: see Sentencing Act, ss 27(6), 31(1)(b), and definition of 'operational period' in s 3(1). It would be surprising if the Parliament intended that the deportation process provided for in the Migration Act should be held in suspense for up to four years after a sentence of imprisonment has been pronounced on a non-citizen.Fifthly, in considering the proper construction of s 201(c) of the Migration Act, it is appropriate to take account of the terms of s 27(8) of the Sentencing Act. This sub-section provides that a partly suspended sentence of imprisonment must be taken for all purposes to be a sentence of imprisonment for the whole term stated by the court. The proper construction of Commonwealth legislation cannot be determined by a State enactment unless the Commonwealth law incorporates by reference the provisions of the State legislation. Nonetheless, Parliament must have contemplated that s 201(c) of the Migration Act would apply to offenders whose sentences are imposed by State courts under State law. In the absence of clear words indicating a contrary intention, it would be strange if s 201(c) of the Migration Act did not apply to an offender who, under State law, is taken 'for all purposes' to have been sentenced to imprisonment for a term of not less than twelve months." (paragraph [31])
Mr Ibbotson submitted that the words "substantial criminal record" as used in s. 501(6)(a) should be given their ordinary and natural meaning. If that were done, Mr Damaskos does not have a criminal record to warrant being described as substantial. This submission I do not accept. Regardless of what the ordinary meaning of the expression may be, Parliament has chosen to define it in the terms used in s. 501(7). I am bound by that definition and must apply it.
In interpreting s. 501(7), Mr Ibbotson submitted that a distinction should be drawn between s. 201 as it has been interpreted in Meng Kok Te and s. 501. That distinction lies, he continued, in the differences in their subject matters and in the reference in the former to a "period" and to a "term" in the latter. Had Parliament intended the two sections to be interpreted in the same manner, it would have adopted substantially the same language. As it did not, a different interpretation must be applied to each. Furthermore, ss. 501(7)(a), (b) and (e) are concerned with persons who are actually incarcerated or detained. Consequently, ss. 501(7)(c) and (d) should be read as referring to terms of imprisonment actually served. Regard must be had to the Criminal Law (Sentencing) Act 1988 (SA) ("Sentencing Act") which governs the imposition of a suspended term of imprisonment and the consequences of breaching any condition upon which it is imposed. Section 38(1) of that Act provides that, where a court has imposed a sentence of imprisonment upon a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond to be of good behaviour and to comply with any other conditions specified in the bond. Should a person fail to comply with any condition in that bond, s. 58(1)(d) of the Sentencing Act provides that the suspension of the sentence must be revoked and the sentence carried into effect. The only qualification to that requirement occurs if the court is satisfied that the person's failure to comply with the conditions of the bond was trivial or there are proper grounds upon which his or her failure should be excused (s. 58(3)).
Beginning with the words "period" and "term", their meanings, in so far as they are relevant in this case are:
period: "…I A course or extent of time. … b gen. The time during which anything runs its course; time of duration. …"
term "… 3 A portion of time having definite limits; the length of time for which something lasts or is intended to last; a period, esp. a set or appointed period of office, imprisonment, investment, etc.; duration, span of (remaining) life. …" (The New Shorter Oxford English Dictionary, 3rd edition, 1993)
Set out in this way, it would seem that the two words have a very similar meaning. There is a presumption that "… the employment of different language in the same Act may show that the Legislature had in view different objects." (Scott v Commercial Hotel Merbein Pty Ltd [1930] VLR 25 per Irvine CJ at 30). As was recognised by Irvine CJ, that presumption is rebuttal and a number of authorities are referred to in Statutory Interpretation in Australia 4th edition by DC Pearce and RS Geddes paragraph 4.5. In the context of the Act, Sheppard J, although in the minority, concluded that a change in language could be accounted for by a change of style (Minister for Immigration and Ethnic Affairs v Sciascia (1991) 103 ALR 307 (Burchett and Lee JJ, Sheppard J dissenting)). A mere change in style or a different form of words does not mean that there is a change in the idea expressed by those words if an earlier Act and a later Act appear to express the same idea (Acts Interpretation Act 1901, s. 15AC).
It seems to me that the variation between ss. 201 and 501 is not a change of style but is intended to reflect different concepts. This becomes apparent when regard is had to s. 20(1), which was introduced in the Act in 1979. As set out in Sciascia, it provided that "This subsection applies to a person, being a non-citizen, who has entered Australia, whether before or after the commencement of this section, if: … (d) when the person entered Australia, the person was: … (iii) a person who had been convicted of two or more crimes and sentenced to imprisonment for a period totalling at least one year." (page 308) Burchett and Lee JJ concluded that this section seemed to them:
"… to be unambiguously referable to a single period which will not include several unconnected and discrete periods of imprisonment arising out of two or more separate sentences." (page 318)
In explaining the practical implications of a contrary view, their Honours said that a contrary interpretation would lead to the addition of sentences that are ordered to be served concurrently. That would be both irrational and unfair given that the total length of sentence imposed upon charges arising out of one enterprise is intended to reflect the total criminality involved. Burchett and Lee JJ also went on to observer that no regard had been paid in the Act to the possibility of a person's being sentenced to periodic detention and so that must be considered not to be caught by the section (Mere Akuhata-Brown v Chesley, 20 March, 1981, Gallop J).
Section 501 was substituted in the Act by the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 ("Character and Conduct Amendment Act"). Rather than referring to "imprisonment … for a period …" as had been the case in s. 20(1), it refers to "a term of imprisonment" and to "2 or more terms of imprisonment (whether on one or more occasions)". The use of the word "term" rather than the word "period" seems to me to be intended to overcome the issue identified in Sciascia. That is to say, it is intended to refer to the length of the individual sentences (i.e. their terms) and to aggregate those lengths (i.e. terms) rather than to require regard to be had only to the length of time for which a person has been sentenced to be imprisoned (i.e. the period) regardless of whether the person has been sentenced to serve one or more terms during that period of imprisonment. When regard is had to the Explanatory Memorandum as permitted by s. 15AB of the Acts Interpretation Act 1901, this meaning is confirmed for that document states:
"It is intended that sentences be "totalled" irrespective of the time and place at which each sentence was imposed …" (clause 53)
Looked at against the history of the Act, it seems to me that the use of the word "term" in s. 501 rather than the word "period" is not intended to suggest that a person must actually have been imprisoned for 12 months or more as a result of one or more sentences. It is neutral on that point. Section 501(10) would suggest that the time for which a person is actually imprisoned is irrelevant. That is set out above and requires a sentence to be disregarded if the conviction has been quashed or nullified or the person has been pardoned in relation to the conviction. In practical terms, that would mean that a person may have been imprisoned for many months or even years and yet the sentence, and so the term of imprisonment, would be disregarded for the purposes of the character test in s. 501.
Bearing these matters in mind, it seems to me that I must look to the terms of imprisonment to which Mr Damaskos was sentenced rather than to the terms that he actually served. Sentences of imprisonment were actually imposed although, upon Mr Damaskos's entering periods of probation, were never served. Despite his not having served them, he was, to use the words of Bowen CJ and Deane J in Drake, "… was, under the composite sentence imposed, sentenced to a term of imprisonment …" or two or more terms of imprisonment where the total of those terms is two years or more (page 68).
Adopting this interpretation of s. 501(7) in the circumstances of this case and the terms for which he has been sentenced to imprisonment leads to the conclusion that Mr Damaskos has a substantial criminal record for he has been sentenced to two or more terms of imprisonment where the total of those terms is two years or more. Consequently, he does not pass the character test.
The Direction
Failure to pass the character test does not mean that Mr Damaskos's bridging visa must be cancelled. Section 501(1) provides that the Minister may do so but not that he must do so. That brings me to the question whether Mr Damaskos's bridging visa should be cancelled. 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"). The Direction was in force at the time that the delegate made his decision in relation to Mr Damaskos.
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 the 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."
Turning to the exercise of the discretion should a person fail to pass the character test, the Minister has directed that there are both primary and other considerations to which a decision-maker should have regard. Decision-makers are directed to:
"…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." (paragraph 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 or other close relationship between a child or children and the person under consideration, the best interests of the child or children." (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 Damaskos's conduct; the likelihood that he will repeat it; and whether visa refusal might prevent or discourage similar conduct in the future.
Of particular significance in relation to the seriousness and nature of Mr Damaskos's conduct, I must have regard to:
"… 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;…" (paragraph 2.6)
In considering past criminal conduct, the Direction sets out two matters that must be taken into account:
"It is the Government's view that the sentence imposed for a crime is an indication also of the seriousness of the offender's conduct against the community. Decision-makers should have due regard to the Government's view in this respect, including:
(a)the extent of the person's criminal record, including the number and nature of offences, the time between offences, and the time that has elapsed since the most recent offence; and
(b)the repugnance of the crime:
.crimes involving violence or fraud against defenceless persons (such as children, the elderly, the disabled and the incapacitated) are especially repugnant to the whole community." (paragraph 2.7)
In assessing such matters, regard must also be had to any relevant factors put forward by Mr Damaskos as mitigating factors (paragraph 2.8(a)). 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.
Consideration must be given to 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. …" (paragraph 2.12)
As Mr Damaskos does not have children, it is not relevant to consider the Minister's direction in relation to children.
Should the discretion be exercised in favour of Mr Damaskos?
As Mr Telfer rightly submitted, this is not a case about the character of Mr Gregory Damaskos and the worth of his venture, Authenticity, and the good that it has done in the community. His character and his work are, however, relevant in this case for I am satisfied that he plays a pivotal role in his brother's recovery and has provided, and continues to provide, a sound environment in which his brother can recover. Based particularly on the evidence of Mr Thompson, Mr Kelly and Ms Rosadoni, I am satisfied that Mr Gregory Damaskos is a man of substance who has established his life and his business in Australia. He long ago left the world of drugs and overcame his addiction to heroin and ceased his use of marijuana. He has been able to use his experience in that world and his qualifications in a range of disciplines including naturopathy to help others. Ms Rosadoni gave evidence of the enormous change that he had been able to achieve for her daughter, who had been a "hopeless drug addict for 15 years or so" (Exhibit D). Periods in rehabilitation had not assisted her but her stay at Authenticity has led her from being a person without hope to a person who "loves life, strives and achieves personal goals as every day passes" (Exhibit D). Mr Thompson, the Chairman of Marshall Thompson Homes, the Chairperson of Crimestoppers SA, Director of National Crimestoppers and the founder of Noarlunga Farm, which assists young persons at risk of becoming street kids, also attested to the benefits that Mr Gregory Damaskos has been able to bring to his family's health. He is regarded as part of Mr Thompson's family. Mr Kelly is a solicitor who has entered a business arrangement with Mr Gregory Damaskos and made a significant investment in Authenticity. He has developed a trust and regard for Mr Gregory Damaskos to such an extent that he considers that investment justified.
That brings me to Mr Damaskos. On the basis of his evidence and that of his brother, I am satisfied that their home life in Athens was difficult and painful. The lack of warmth between their parents led to an environment filled with tension. Their mother's depression and use of alcohol added to that tension. Both brothers resorted to drugs while still in school. Mr Gregory Damaskos was the first to use them but he was closely followed by Mr Damaskos. On the basis of the evidence of both of them but particularly on that of Mr Gregory Damaskos, who has spent a considerable time analysing his behaviour and that of others, I am satisfied that both were seeking to find a world other than the world of tension in which they lived at home.
I am satisfied that Mr Gregory Damaskos was able to abstain from using drugs before he came to Australia. There is no hint in either his evidence or in the evidence of those who came to support him and his brother to the contrary. That was in 1990. Again on the basis of their evidence, I am satisfied that the brothers are very close but, unlike his taking up drugs, Mr Damaskos did not follow his brother in abstaining from them at this early time. Instead, I find that he continued to live in Berlin and to be exposed to the same environment where drugs were cheap and readily available. That is not to say that he can blame his environment totally for he continued to remain in it and to give in to its temptations. For all that, I also recognise that he was addicted and his addiction and his remaining in the environment must, to some extent, have become dependent upon each other.
I am satisfied that Mr Damaskos did try to break his addiction and his patterns of addictive behaviour before he came to Australia. He did so in several ways. One was to abstain while he was in Berlin and another was to undergo rehabilitation either with or without his taking methadone. He also tried to take himself from the environment in Berlin in which he found it so difficult to break his heroin habit. He did that by leaving Berlin from time to time. I find that his efforts were successful for a period of some two and a half years from approximately 1994 until the beginning of 1997. He then resumed his heroin habit and can give no reason for his doing so other than the cheap availability of the drug in the hospitality industry in which he worked. He again abstained from using heroin in 2000 and I am satisfied that he has not used it since coming to Australia.
On the face of paragraph 2.6(a) of the Direction, Mr Damaskos's convictions in connection with the unlawful acquisition and disposal of heroin are offences involving illicit drugs of dependency or addiction. So too are the convictions for theft for those thefts occurred because of his addiction to heroin. As such, they may be described as being of particular concern to the Government and the community. When regard is had to the whole of paragraph 2.6(a) though, it would seem that the convictions are of particular concern when they meet not only that description but also meet the description in the opening words of the paragraph i.e. they are in connection with the production, importation, distribution, trafficking (including possession for this purpose), commercial dealing, or selling of illicit drugs. The convictions following those opening words must be read against their background.
Whether his convictions come within that paragraph of the Direction or not, Mr Damaskos's past heroin habit is a matter that requires careful consideration. It has led to his two convictions relating to the possession of heroin and is the cause of his committing thefts on numerous occasions. He attributes his 14 thefts to circumstances connected with his heroin habit i.e. his need for money either to acquire the drug or to purchase food. At the heart of the Direction in the circumstances of this case is the need to protect the Australian community and to meet the Australian community's expectations. In the context of the convictions in this case, the harm from which the Australian community needs to be protected is the damage that flows from any continued use by Mr Damaskos of heroin and any continuation of the theft, petty in this case, that has accompanied it.
The size of that harm can be ascertained in part by the pattern of his past use and the pattern of his offending. I am satisfied that his six court appearances dealing with his 16 offences are consistent with his attempts to abstain from heroin. They are grouped into three periods: 1991 to 1993, 1997 and 2000. The size of the harm can also be ascertained by reference to the sentences imposed upon his being convicted of those offences. The fact that Mr Damaskos was not imprisoned despite his repeated appearances suggests that the offences were not at the serious end of the scale in the German courts. Certainly, the sentences increased from four months to one year over his first four convictions but the final two attracted only four months imprisonment and then only a fine. Where a sentence of imprisonment was imposed, he was also granted probation. Even when he committed another offence while on probation, there is no evidence that there has been any additional penalty other than, perhaps, an extension of the period of his probation.
Another factor to be considered in assessing the harm to the Australian community is any change in his environment and in his condition generally. In relation to his environment, I am satisfied that he has moved from an environment that was not conducive to his abstaining from heroin to one with his brother which is conducive. It is conducive not only because of the professional assistance that his brother and his brother's establishment can offer him but also because Mr Damaskos is close to his brother. He now has support from a person who understands the difficulties that Mr Damaskos faced in his early life and has been able to work with him about those difficulties. On the basis of the evidence, I am satisfied that Mr Damaskos has responded positively by avoiding not only heroin but also addictive substances such as alcohol and cigarettes. Finally, Mr Damaskos has begun studies in naturopathy. This is a subject in which he has an interest and which he sees as giving him the ability to go anywhere in the world.
Taking all of these matters into account, I do consider that the likelihood of Mr Damaskos's resuming his heroin habit is very low and so the harm to the Australian community in this regard is very low. As his other offences were committed as a necessary consequence of his heroin habit, I have reached the view that the risk of his re-offending generally is very low. There is no guarantee that Mr Damaskos will always stay with his brother or that he will continue with his studies but, on the evidence, I am satisfied that the likelihood is that he will. He wants to continue with his new life and an important part of that life are his studies and his future with a health resort connected with Authenticity.
That brings me to the expectations of the Australian community that a person will comply with its laws. In the context of this case, the concern that he will not do this arises in part from his stating that he did not have any criminal convictions in the Incoming Passenger Card. To an Australian's mind, the meaning of the question is probably clear. The evidence is that there is a distinction drawn in Greece between minor offences and criminal convictions. It is not controverted. That distinction would be enough to cause confusion over the meaning of the question. Certainly, Mr Gregory Damaskos had earlier incorrectly answered a similar question in relation to his own previous conviction. His evidence was that he was later told by the Department what he should write to rectify the problem that he faced as a result of his initial incorrect answer. It does not follow from his doing so that he understood the meaning of the question some ten years later when he assisted his brother. I am persuaded by Mr Damaskos's correctly answering the question in relation to his later applications that he attempted to answer honestly the question on his Incoming Passenger Card. That question was differently framed and referred not only to criminal convictions but also to convictions for crimes and offences and even if the convictions have been removed from official records. He was also answering it after having the benefit of assistance from a wider group of people than just his brother. Having regard to these matters, I have reached the conclusion that Mr Damaskos attempts to understand questions asked of him and to answer them honestly. He also seeks assistance to answer them. His choice of assistant may not always be the most knowledgeable person but members of the Australian community do not expect him to reach a standard that they may well not reach themselves. All that can be expected is that he answers questions honestly after taking due care to understand them. This, I am satisfied that Mr Damaskos has done.
Finally, I have had regard to the fact that the visa for which Mr Damaskos has applied and which has been cancelled is a student visa. It is intended to last the length of his course. It is not a permanent visa. Should he lapse into his old ways, it can be cancelled forthwith. That is an insurance policy for the Australian community against what I consider to be a very low risk of his re-offending while he is undertaking his studies. If Mr Damaskos is permitted to have a student visa, there is no message that his past behaviour is tolerated by the Australian community or that it expects that its residents will not obey the law and respect the person and property of other residents. Rather, there is a message that Australia recognises that a person need not be bound by his or her past mistakes and that he or she can grow from and beyond his or her past. Australians are forgiving people when someone in their midst shows a genuine desire to reform him or herself and takes positive and constructive steps to put him or herself in a position and environment to fulfil that desire. Mr Damaskos is such a person.
Taking all of these factors into account, it seems to me that the discretion should be exercised in favour of Mr Damaskos. For the reasons I have given, I have decided to:
1. set aside the decision of the respondent dated 7 May, 2002; and
2.substitute a decision that the applicant's visa should not be cancelled on character grounds pursuant to s. 501 of the Migration Act 1958.
I certify that the eighty-three preceding paragraphs are a true copy of the reasons for the decision herein of
Miss S A Forgie (Deputy President),Signed: ..(Sgd. Paul Paczkowski)....…….........
Paul Paczkowksi AssociateDates of Hearing 14 June, 2002
Date of Decision 21 June, 2002
Counsel for the Applicant Mr Ibbotson
Solicitor for the Applicant Hyams & Associates
Counsel for the Respondent Mr Telfer
Solicitor for the Respondent Sparke Helmore
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