Darin Rosson and Minister for Immigration and Citizenship

[2010] AATA 880

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 880

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/3573

GENERAL ADMINISTRATIVE DIVISION		)
Re		Darin Rosson

Applicant

And Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal Senior Member A K Britton

Date10 November 2010

PlaceSydney

Decision The decision under review is affirmed.

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

Senior Member

CATCHWORDS

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

Migration Act 1958 (Cth) — ss 499, 501

REASONS FOR DECISION

10 November 2010 Senior Member A K Britton           

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

2.      Mr Rosson is 41 years of age. He was born in New Zealand and is a citizen of that country. At age 35, he migrated to Australia where he has lived since his arrival in December 2004. During his time in Australia, Mr Rosson has been convicted of a number of offences and served four separate custodial sentences. He is currently in Villawood Immigration Detention Centre in Sydney awaiting the outcome of these proceedings.

3.      To preserve the anonymity of any child relevant to Mr Rosson’s application, I have attempted as far as possible not to reveal their identity. To this end, I will not refer to any by name. Unless otherwise stated, all references to “the son” are references to Mr Rosson’s 14 year-old son.

Power to cancel Mr Rosson’s visa

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

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

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

6.      The Direction lists a number of “primary” and “other” considerations that must be taken into account, and instructs that “other considerations” — namely those listed at par 11 — should generally be given less weight than given to primary considerations: par 11.2.

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

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

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

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

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

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

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

Background

8.      Mr Rosson is one of five children. His father committed suicide when he was eight years of age after a long history of alcohol abuse and depression. He claims that his mother found it difficult to cope and he often lived with members of his extended family and had limited supervision. He claims that he was introduced to drugs and alcohol at an early age, was drinking by the time he was 10 and using marijuana by age 11. He claims that he was introduced to “Ice” (crystal methamphetamine hydrochloride — a powerful, synthetic stimulant drug) while a teenager by his cousins, whom he claims were members of criminal gangs.

9.      Mr Rosson said that he stopped drinking heavily when he arrived in Australia, and now only drinks on special occasions. His amphetamine use continued, however, escalating in 2007 and 2008. He testified that apart from his use of marijuana in January of this year — which resulted in him being readmitted into custody — he has been drug-free since 2009.

10.     Mr Rosson is the biological father of four children. He also has a number of stepchildren. His 14-year-old son lives with his mother in Sydney, and has been in regular contact with Mr Rosson in the recent past. It is agreed that of his relationships with his children, measured in terms of the level of contact and dependency, the relationship with this son is the most significant.

11.     Mr Rosson formed a relationship with Ms Linda Solomon, his son’s mother, in about 1994. They lived together until mid-2004, when Ms Solomon and the son came to Australia. Apparently, Ms Solomon had intended to visit relatives but found work in Australia and decided to stay. Mr Rosson joined them about six months later. Mr Rosson said that in New Zealand there had been problems in his relationship with Ms Solomon which continued to deteriorate after his arrival in Australia. Ms Solomon and the son left the family home 10 months after Mr Rosson’s arrival. After this occurred, in February 2006, Mr Rosson lived on the streets, apart from two brief periods when he stayed with friends or was in custody (2 March 2007 to 12 April 2007 and 10 August 2007 to 2 September 2007). He moved in with his current partner, Ms Alison Hunter, in late 2007. Throughout that period Mr Rosson had limited contact with his son. Mr Rosson has lived with Ms Hunter continuously since late 2007 apart from two periods in custody, totalling 13 months.

12.     Throughout the period December 2006 to July 2008, Mr Rosson committed 14 separate offences for which he was subsequently convicted. Many involve acts of violence where Ms Solomon was the victim. The last violent offence for which he was convicted occurred in July 2008.

13.     Mr Rosson has been incarcerated on four separate occasions while in Australia:

2 March 2007            —       12 April 2007

10 August 2008         —       2 September 2008

10 January 2009        —       10 July 2009

9 April 2010               —       11 August 2010

14.     In December 2006, Mr Rosson was charged with two counts of common assault. The police fact sheet tendered in the sentencing court and these proceedings stated that Mr Rosson threw a half-empty beer can at Ms Solomon, hitting the side of her head, and said “I am going to stab your face”. While Ms Solomon was walking away, Mr Rosson hit her across the back of the neck, causing her to be pushed against a wall. Relatives intervened and the police were called.

15.     Throughout 2007 and 2008, Ms Solomon was granted numerous apprehended violence orders (“AVOs”) and, on 30 June 2008, was granted an order for a period of two years. A copy of the application for that AVO was tendered in these proceedings and sets out the grounds on which the application was made:

On 19 March 2008 Mr Rosson repeatedly rang Ms Solomon and threatened to kill her;

The following day he splashed flammable liquid over the exterior of her apartment;

The Police were called and applied for an AVO on Ms Solomon’s behalf and attempted to serve the AVO on Mr Rosson without success;

Since 19 March 2008, Ms Solomon reported on numerous occasions that Mr Rosson had attended her house unannounced.

16.     In July 2008, Mr Rosson was charged with two counts of each of the offences of stalk/intimidate, intends fear of physical/mental harm, common assault and contravene AVO. He entered a plea of not guilty. The Police facts sheet tendered in the sentencing court in relation to those offences recorded that on 2 July 2008 while Ms Solomon was asleep, Mr Rosson entered her bedroom; berated her for applying for an AVO; slapped her across the face with an open hand and, when she tried to escape, used a mattress to block her exit via the bedroom door; then threw her to the ground and kicked her, saying:

I will fucking kill you if you go to the coppers. I'm not going to stop harassing you. I ain't going to leave you alone for the rest of your life.

17.     After some time, Ms Solomon’s phone rang, and Mr Rosson left after Ms Solomon told him it was probably her work and the police would be contacted if it was not answered. Ms Solomon took refuge in a women’s shelter, where she remained for about four months.

18.     A week later, Mr Rosson was found asleep in Ms Solomon’s bed when she was not there. He was charged with being in breach of an AVO and taken into custody.

19.     Mr Rosson was convicted of “stalk/intimidate intends fear of physical/mental harm”; common assault (x 2) and contravene AVO (x 2) (“the July 2008 offences”). He was convicted and sentenced to three concurrent sentences — 18 months (x 2) and nine months, all carrying a six-month non-parole period. The presiding magistrate commented:

[W]hen you are on your drugs you will rage and all sorts of jealousies and paranoia come to the fore. What has happened is you terrorised Linda Solomon and made her life hell.

20.     Mr Rosson and Ms Solomon each testified that while no longer together as a couple, they now enjoy a positive relationship and have settled their differences. Ms Hunter corroborated that claim. Ms Solomon testified that while she had been in the past, she is no longer fearful of Mr Rosson. Social worker Mary Jelen, who gave evidence in these proceedings, accompanied Ms Solomon and the son on a recent visit to Mr Rosson at Villawood Detention Centre. During that visit, which lasted for an hour and a half, Ms Jelen observed that Mr Rosson and Ms Solomon were at ease and comfortable in each other’s company, and that Ms Solomon did not display any signs of being uncomfortable or fearful. Ms Solomon testified that she supports Mr Rosson staying in Australia, and believes it to be in their son’s best interests that he have continued contact with his father.

Primary considerations

(a) Protection of the Australian Community

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

5.1 Objectives

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

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

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

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

(i) Seriousness and nature of the conduct

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

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

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

(i)        the number and nature of offences;

(ii)       the period between offences; and

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

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

26.     Criminal History: Between 1987 and 2000, while in New Zealand, Mr Rosson was convicted of a number of traffic offences and the theft of a motor vehicle. None involved violence.

27.     Mr Rosson has been convicted in Australia of the following offences:

Sentence Date	Offence	Penalty
30 January 2007	Common assault	12 months bond – drug and alcohol counselling
1 February 2007	Contravene AVO	$200 fine $67 court costs
10 August 2007	Drive motor vehicle without licence	$500 fine
	Resist police officer	12 months good behaviour bond Drug/alcohol counselling
	Contravene AVO	3 months periodic detention (3 month non-parole period)
	Use offensive language in/near public place/school	$200 fine
23 June 2008	Possess prohibited drug	$750 fine $70 court costs
2 September 2008	Possession of stolen goods	$400 fine
5 June 2009	Maliciously destroy or damage property	12 months imprisonment (6 months non-parole)
	Contravene prohibition/restriction in AVO (DV)	18 months imprisonment (6 months non-parole)
	Common assault	9 months imprisonment (6 months non-parole)
	Contravene prohibition/restriction in AVO (DV)	18 months imprisonment (6 months non-parole)
	Assault	18 months imprisonment (6 months non-parole)
	Resist police officer in execution of duty	6 months imprisonment

28.     Mitigating factors: Mr Rosson contends that his offending conduct throughout the period 2006 to 2008, was mainly the result of:

(i)        His substance abuse

(ii)       Family breakdown

(iii)      Being denied access to his son

29.     Substance abuse: All offences for which he was convicted in Australia occurred during a period of heavy amphetamine use. In a report prepared at the request of the presiding magistrate, psychiatrist, Dr Anthony Samuels, recorded that during an assessment conducted in May 2009 Mr Rosson told him that he:

Used a lot of Ice, sometimes for days on end and then needed heroin to bring himself down

Has psychotic symptoms at times

Had not used alcohol “for years”

Refused methadone and sleeping pills when he came into prison [January 2009] because he “wanted to turn his life round”

[Is] the straightest I’ve ever been

“Loves the drugs”

30.     Dr Samuels believed that Mr Rosson’s primary problem was one of polysubstance misuse. Psychologist Ms Leah Vircoe assessed Mr Rosson for the purpose of these proceedings and in a report dated 18 October 2010 echoed Dr Samuels’ view that Mr Rosson’s polysubstance misuse and offending conduct were inter related. She noted that there was a correlation between amphetamine use and aggressive behaviour.

31.     The sentencing Magistrate noted the part played by Mr Rosson’s addiction in the July 2008 offences and remarked on sentencing:

Obviously you have had a real problem with the drugs and I accept that, and it is quite clearly set out in the report of the doctor [Dr Samuels] that I have got here, and I have also commented earlier to you when I came on the bench about how impressed I was with the work you have done

32.     Family breakdown: In Mr Rosson’s opinion, the main reason for his offending conduct was his ongoing dispute with Ms Solomon about access arrangements concerning their son after leaving the family home in 2006. Mr Rosson testified that his son means everything to him, and he was devastated when Ms Solomon refused to allow him to see his son. While it is unclear precisely when the access issue was resolved, Mr Rosson reported to Dr Samuels in May 2009 that he and Ms Solomon had sorted out their differences.

33.     Mr Rosson claims that throughout the period of his offending conduct, Ms Solomon was a heavy drinker and often left their son alone for long periods. He claims that on many of the occasions when he was found to be in breach of an AVO, he had returned to care for this son, who on his account was commonly left without food. The history he gave to Dr Samuels broadly accords with those claims. While un-contradicted, those claims are not supported by independent evidence.

(ii) Risk that conduct may be repeated

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

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

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

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

35.     History of recent convictions: Mr Rosson’s Australian criminal history spans the period December 2006 to July 2008. The last offence for which he has been convicted — maliciously destroy property — was committed in early July 2008 and involved damaging police cells following his arrest on 2 July 2008. In the 27 months since that offence was committed, Mr Rosson has been in custody for a total of 13 months.

36.     Rehabilitation undertaken: Mr Rosson has undertaken, but not completed, three drug and alcohol programs. On his account, he was unable to complete these programs because: he was moved from the prison where the program was offered (the Breakout program at Lithgow jail in 2009); the dates between the program conflicted with his employment commitments (the Get Smart program at Kirkconnell Correctional Centre in 2010); and he was readmitted into custody (the program conducted by the Nepean Drug and Alcohol service in 2009).

37.     Mr Rosson’s efforts to abstain from drug use after his admission to custody in January 2009 were commented on by the Magistrate on sentencing in June 2009 (see par [31] of these reasons).

38.     As noted, Mr Rosson told Dr Samuels in May 2009 that he “wanted to turn his life round” and “[it was] the straightest I’ve ever been”. Mr Rosson also told Ms Jelen and Ms Vircoe that he was determined to remain off drugs.

39.     Expert opinion on the risk of recidivism: In their respective reports and oral evidence, Ms Jelen and Ms Vircoe provided an opinion about Mr Rosson’s risk of recidivism. Ms Jelen categorised his risk as “low”; Ms Vircoe thought it was “low to moderate”. Each believed that the risk of reoffending would increase if Mr Rosson were to use drugs or alcohol.

40.     Ms Vircoe employed static, dynamic and protective factors to assess Mr Rosson’s risk of recidivism. She identified Mr Rosson’s lengthy criminal history as a “static” risk factor. In her opinion, the main dynamic risk factors were Mr Rosson’s previous history of drug abuse, difficulties with impulsivity, aggression and coping with emotional distress. She thought that his current motivation to cease drugs, in combination with his prior successful alcohol abstinence, suggested good prospects of future drug abstinence. She thought it a positive sign that there was some evidence that Mr Rosson had gained a degree of control over his aggression. She thought his risk of drug and alcohol use is likely to increase during periods of stress and further intervention would be required to prevent relapse.

41.     In her opinion, the main risk factors include Mr Rosson’s previous history of drug abuse, lack of impulse control, aggression and difficulties with coping with emotional stress. She thought his “reduced levels of anti-social thinking”, reasonable employment prospects, absence of psychopathy, stable accommodation and supportive primary relationship acted to reduce his risk of reoffending.

42.     Ms Jelen conducted lengthy interviews with Mr Rosson, Ms Solomon, Ms Hunter and the son for the purpose of preparing a report for these proceedings. She wrote that Mr Rosson told her that he now recognises the link between his offending conduct and drug use and that he told her that Ms Hunter did not approve of drug use and would end the relationship if he relapsed. In her opinion, Mr Rosson’s offending behaviour was primarily caused by difficulties relating to contact with his son.

43.     Ms Jelen based her opinion that Mr Rosson’s risk of recidivism was low on the following: the changes made by Mr Rosson in his life over the past 12 months; his recognition that those changes must be maintained if he is to continue to see his son and maintain a relationship with Ms Hunter; his commitment to remain drug and alcohol free; and, his commitment to providing a positive role model for his son.  

44.     Given the weight both experts place on the relationship between the risk of reoffending and Mr Rosson’s drug and alcohol use, it is necessary to look in some detail about the claims made by Mr Rosson about his drug and alcohol history, and in particular those regarding his more recent history.

45.     In these proceedings, Mr Rosson testified that since arriving in Australia he has only consumed alcohol on “special occasions” – weddings, birthdays, Christmas and the like. He initially testified that on those occasions he drank “a couple of bottles of whisky at a time”. When recalled to give evidence, he claimed that he meant that the “couple of bottles of whisky” were shared between a group of about six people. Ms Hunter stated that since she commenced living with him, Mr Rosson drank only on special occasions and never “to the point of intoxication”. She testified that the last time she saw Mr Rosson drink was Christmas 2009, when he shared a bottle of whiskey and a bottle of vodka between six friends.

46.     In his report dated 4 June 2009, Dr Samuels recorded that Mr Rosson “had not used alcohol for years”. Ms Vircoe, in a report dated 18 October 2010, recorded that Mr Rosson ceased alcohol use in 2000 and now drinks only about three times a year. In contrast, in a report of the same date, Ms Jelen recorded that Mr Rosson reported no alcohol use over the past ten years. On questioning, she insisted that Mr Rosson did not tell her he drank on “special occasions”. In evidence, Mr Rosson claimed that he told Ms Jelen he had not had a drink for a long time, by which he meant since Christmas 2009.

47.     Mr Rosson testified that he has not used “Ice” since he was in prison in 2009, and then on only one occasion. He claimed that he last used cannabis in early 2010, which resulted in the revocation of his parole and readmission into custody. On his account, the latter was a one–off incident, triggered by feelings of stress and depression experienced following a bike accident that left him injured and incapacitated for a short period.

48.     Ms Hunter said that to her knowledge, Mr Rosson had not used drugs since leaving prison in July 2009, and that she would was ”pretty sure” she would be aware if he was “using”. She testified that when he used amphetamines in the past he would “sit and stew” and act impulsively towards Ms Solomon (but not towards her). She claims that neither she nor her daughters approve of or use illicit drugs.

49.     In May 2009 Dr Samuels saw Mr Rosson, who reported that he was “off drugs” and determined to turn his life around. Ms Jelen recorded that Mr Rosson told her that he had been drug free for over 12 months (as at October 2010) and that he has been sent to prison last year “due to a minor breach of his parole order, namely failing to advise of his change of address”. (He made a similar claim in a letter addressed to the Department of Immigration dated 19 June 2010.) In evidence, Ms Jelen stated that Mr Rosson had not disclosed that he had been readmitted into custody after failing a drug test. Ms Vircoe recorded that following incarceration in January 2009, he was motivated to cease using all drugs, but disclosed that he encountered “a few lapses”, which were always followed by a return to abstinence.

50.     Compliance with judicial orders:          Mr Rosson has breached his obligations to the court on a number of occasions:

December 2006 — charged with breaching bail

January 2007 — charged with breaching bail

February 2007 — convicted of two counts of contravening a domestic violence order

March 2007— charged with two counts of breaching bail

June.2007 — charged with breaching bail

November 2008 — convicted of two further counts of contravene prohibition/restriction in an AVO

November 2008 — failed to appear for sentencing in relation to July 2008 offences

Various dates — breach of section 9 [Crimes (Sentencing Procedure) Act 1999 (NSW)] bonds; and

Early 2009 — readmission into custody following a breach of parole.

Findings and conclusions

51.     In assessing the primary consideration of the protection of the Australian community, consideration must be given to both the seriousness and nature of Mr Rosson’s offending conduct and the risk that that conduct might be repeated.

52.     Of the offences committed, the collection of offences Mr Rosson committed in July 2008 are in my opinion the most serious. They include the offence of assault, which the Direction categorises as an example of an offence considered “serious”. Those offences were committed in the context of a long history of threats of violence made against Ms Solomon and repeated breaches of AVOs. The seriousness of those offences is reflected in the sentences imposed, which included two concurrent 18-month sentences (with six month non-parole periods). In my view, when taken as a whole, Mr Rosson‘s criminal conduct in Australia must be regarded as serious in nature.

53.     The more difficult issue to determine is the risk that Mr Rosson might reoffend. Counsel for Mr Rosson, Mr Karp, submits that consistent with the expert opinion, the Tribunal can be satisfied that that risk is low. He argues that the risk of recidivism must be assessed in the context in which the offending conduct occurred, namely a period when Mr Rosson was both heavily dependent on amphetamines and deeply distressed as a result of an acrimonious separation that resulted in him losing access to his son. Counsel argues that his recent history reveals that Mr Rosson’s circumstances have dramatically changed — he is now in a stable and loving relationship; has secure accommodation; has repaired his relationship with Ms Solomon and has not committed an offence for over two years. Importantly, he now recognises that his continued relationship with his son — the most important person in his life — will be threatened if he relapses into drug use. Counsel contends that the evidence that Ms Solomon no longer fears Mr Rosson is powerful evidence of his marked change in character.

54.     The consensus of expert opinion is that the risk of recidivism is inextricably tied to Mr Rosson’s ability to abstain from drug and alcohol use. While Mr Rosson freely admits to long-term drug and alcohol abuse, there are a number of inconsistencies in the accounts he has given about his recent history. This makes an assessment of the risk of relapse difficult. In these proceedings, he testified that since release from prison in July 2009 he had used drugs on only one occasion: the occasion that led to his parole being revoked. In contrast, he told Ms Vircoe that he abstained from drug use during his last period in the community (July 2009 to April 2010), apart from two lapses. Ms Jelen, on the other hand, recorded that Mr Rosson reported that he had been drug-free during the same period. I think it unlikely that Ms Jelen mistakenly recorded the history given — she was confident in her recollection and her detailed report is otherwise accurate. There may be an innocent explanation for these apparent discrepancies, however they raise a concern about the reliability of Mr Rosson’s claim of reduced drug use since mid-2009. It is noted that Mr Rosson’s claims about his recent drug and alcohol use, while uncontradicted, are unsupported apart from the evidence given by his partner.

55.     Even if accepted that Mr Rosson’s only relapse since leaving custody in mid- 2009 was that to which he admitted in these proceedings, that incident raises doubts about his ability to resist illicit drugs in the future. At that time, he was aware of the link between drugs and his propensity to offend (see for example the report of Dr Samuels dated 4 June 2009). He was in a supportive relationship with Ms Hunter, whom he knew did not condone drug use; enjoyed secure accommodation; had repaired his relationship with Ms Solomon and was enjoying regular contact with his son. His reason for using drugs on that occasion — to self-medicate because he felt depressed — echoes the stated reasons for his earlier amphetamine use: “to take away my negative thoughts” (see report of Ms Vircoe dated 18 October 2010 at p 5). Furthermore, this incident occurred at a time when Mr Rosson was subject to the supervision of the probation and parole service, which suggests that supervision and undertakings to the court were insufficient to curb his drug use. While cannabis is generally considered to be less problematic than amphetamines, and as Ms Vircoe points out, occasional relapse incidents are not uncommon, the circumstances in which this relapse occurred suggests that Mr Rosson’s battle with his addiction is far from over.

56.     In my opinion, it is troubling that Mr Rosson has not only failed to complete a drug or alcohol rehabilitation course, but also holds at best vague plans about the assistance he might seek if allowed to remain in Australia, a factor that both experts agreed was necessary to minimise the risk of relapse. While two out of the three courses undertaken were apparently not completed for reasons outside Mr Rosson’s control, the reason given for not completing the Get Smart course — that the dates conflicted with employment within prison — indicates that Mr Rosson does not fully appreciate that obtaining professional help will be critical if he is to avoid relapse. While I acknowledge the importance of employment within prison, Mr Rosson’s decision to favour it over completing the course reveals a cavalier attitude on his part. In addition, his failure to develop a firm plan about the assistance he will seek out on release indicates that Mr Rosson either lacks the skills required to obtain such assistance, or is not entirely convinced at this point in time of the need to obtain support. Whatever the explanation, I am not confident that if he were to remain in Australia, Mr Rosson would participate in a suitable rehabilitation or educative program.

57.     I accept that Mr Rosson’s offending conduct must be seen in the context of his then-dysfunctional relationship with Ms Solomon. While I am satisfied that that relationship has been repaired and the prospect that it will disintegrate is remote, there nonetheless remains a risk that if Mr Rosson were to again face significant stressors in his life, he might relapse into drug use. Coupled with his poor record of complying with judicial orders, his lengthy criminal history (including his New Zealand offending) and the relatively short period spent in the community since his last offence was committed, leads me to conclude that there is a real and material risk that Mr Rosson’s criminal conduct will be repeated.

58.     In my view, given the nature of his criminal conduct and the risk that his offending conduct might be repeated, the protection of the Australian community favours the cancellation of Mr Rosson’s visa.

B. Age when Mr Rosson began living in Australia

59.     This factor does not favour Mr Rosson, as he was an adult when he started living in Australia.

C. Length of time resident in Australia

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

61.     Mr Rosson has lived in Australia for less than six years. The first offence for which he was convicted occurred just under two years after arriving in Australia.

62.     This factor does not weigh in Mr Rosson’s favour.

D. International obligations

63.     Paragraph 10.4 of the Direction provides:

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

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

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

Best interests of the child

65.     The Direction creates a rebuttable presumption that a child's best interests will generally be served if they remains with their parents: par 10.4.1(4). Paragraph 10.4.1(5) lists 15 factors to be taken into account in assessing the best interests of the child.

66.     Mr Rosson has four children. Two are under 18 years of age — a 14-year-old son and a 15-year-old daughter. They have different mothers, were born in New Zealand and currently live in Australia. Their citizenship status is unclear. For the purpose of this consideration, Mr Rosson’s adult children are irrelevant: par 10.4.1(2).

14-year-old son

67.     For the reasons that follow, I am satisfied that it is the son’s best interests that Mr Rosson remain in Australia.

68.     Until he was aged ten, the son lived with both parents in New Zealand. He migrated to Australia in 2004 with his mother and after about six months was joined by his father for a short period. Since August 2006, he has lived exclusively with his mother. Since his father’s release from custody in July 2009 he has regularly stayed with Mr Rosson and Ms Hunter on weekends.

69.     The son is in Year 9, and for the past 18 months has attended a school for children with behavioural problems. He will return to a mainstream school in the 2011 school year as his behaviour is reported to have improved.

70.     Detailed evidence about the relationship between Mr Rosson and his son reveals that the two have a particularly close and loving relationship; the son is extremely upset at the prospect that Mr Rosson might be deported and testified to that effect. Ms Solomon believes that Mr Rosson has always tried to do his best for his son, notwithstanding the past problems in their relationship; and feels that in recent years he has had been a positive influence and assisted in moderating their son’s aberrant behaviour. Since 2009, Mr Rosson has provided Ms Solomon with much-needed and welcome support in parenting the son.

71.     An informal agreement exists between Mr Rosson and Mr Solomon about the arrangements relating to access to, and care of, the son. In broad terms, they agree that the boy will continue to live primarily with his mother; and stay with Mr Rosson on the weekends, and see his father whenever he wished. Ms Hunter and the son testified that they support that plan. There is no suggestion that the son would accompany Mr Rosson to New Zealand if he were to be deported. Mr Rosson is firmly of the opinion that that would not be in his son’s interests.

72.     Ms Jelen and Ms Vircoe each firmly believe that it would not be in the child’s best interests for him to be separated from Mr Rosson.

73.     While the son was probably adversely affected as result of a witnessing the conflict between his parents, in my view it is demonstrably in his best interests that Mr Rosson’s visa not be cancelled.

74.     I am satisfied that the son’s interests would be best served by Mr Rosson remaining in Australia. This factor in my view weighs heavily in favour of Mr Rosson retaining his visa.

15 year-old daughter

75.     Mr Rosson’s 15 year-old daughter lives with her mother in Queensland. Mr Rosson has never lived with, nor had parental responsibility for the child. While he claims to have had regular contact with his daughter until she moved to Australia from New Zealand at age nine, his contact with her since then has mainly been by telephone. He has visited her on occasion in Australia, the last time being one and half years ago. He claims that he last spoke to his daughter about six weeks ago on her birthday. On his account, during that conversation she confided to him was about a few “teenage problems”.

76.     There is no evidence that the child is either aware that Mr Rosson might be deported or has a view on the issue.

77.     In my view, the daughter’s interests would be largely unaffected if Mr Rosson no longer resided in Australia. Her contact with him has largely been by phone, and as the Minister points out, this could continue if he were to live in New Zealand.

Other considerations

78.     As noted, the Direction specifies a number of other considerations that must be taken into account if relevant. They should generally be given less weight than the primary considerations: par 11(2).

79.     Family ties:   As noted, Mr Rosson has been in a de facto relationship with Ms Hunter, an Australian citizen, since September 2007. They plan to marry. Ms Hunter told Ms Jelen during an interview conducted in October 2010 that her relationship with Mr Rosson was the “best relationship I have had in my life”. Ms Hunter has two daughters aged 19 and 21 who currently live with her. Both are undertaking tertiary studies. She testified that if Mr Rosson were deported she would not follow him, as she believed it was necessary that she remain in Australia to support her daughters.

80.     I accept that the relationship between Mr Rosson and Ms Hunter is a strong and loving one, and that both would be extremely distressed if they were forced to live apart.

81.     Mr Rosson’s eldest daughter is 20 years of age and currently lives in New Zealand. She has two young children. According to Mr Rosson, she plans to move to Australia with her family early next year. He claims that he has regular phone contact with his daughter and grandchildren, and last saw them about two and half years ago.

82.     Mr Rosson’s eldest son is 19 years of age and currently working overseas on a three-year contact. It is unclear what if any contact Mr Rosson had with this son before he went overseas.

83.     Mr Rosson also has a 19 year-old stepdaughter who is the daughter of Ms Solomon. He claims that she has recently moved from New Zealand to Australia, and that they spoke by phone a short while ago.

84.     Age and health:     Mr Rosson is in good health and relatively young.

85.     Links to New Zealand:     Mr Rosson’s mother and three of his four siblings live in New Zealand. He claims to have had no contact with his eldest brother for 20 years. In contrast he has maintained limited contact with a younger brother and a sister who remain in New Zealand. Mr Rosson has a large extended family in New Zealand. He claims many of its members are either dead or in jail. Mr Rosson believes that if he were to resume contact with his extended family, their involvement in criminal activity would increase the risk of reoffending.

86.     Hardship likely to be experienced by Mr Rosson: If Mr Rosson were to be deported, in my opinion he would suffer significant emotional hardship as a consequence of his separation from his son and Ms Hunter. He would also experience some hardship as a result of losing the opportunity to resume face to face contact with his 15 year-old daughter, stepdaughter and eldest daughter, if she does move to Australia. Being removed from his supportive environment will probably increase his risk of relapse into drug and alcohol use and possibly reoffending. I agree with Ms Vircoe that deportation is likely to lead to a significant deterioration in Mr Rosson’s emotional state.

87.     Hardship likely to be experienced by Mr Rosson’s family members resident in Australia: I accept that Ms Hunter and the son would be devastated if Mr Rosson were forced to move to New Zealand. On what is before me, I am not satisfied that Mr Rosson’s eldest daughter would suffer any material hardship, even if — as assumed — she moves to Australia in 2011. While she and her children might be disappointed if Mr Rosson has to return to New Zealand, there is nothing to indicate that they are dependant on Mr Rosson either emotionally or otherwise.

88.     I also find that Ms Solomon would suffer hardship if Mr Rosson’s visa were to be cancelled. She now looks to him to shoulder the responsibility of parenting and to guide their son through his (to date) troubled teenage years.

89.     Level of education: Mr Rosson left school at age 13. He has no formal educational or trade qualifications. He has undertaken unskilled employment in New Zealand and Australia.

90.     Notification of possible deportation: Mr Rosson was first notified that his criminal conduct might result in his visa being revoked in May 2010. He was in custody at the time.

91.     Summary: In my view, the hardship that Ms Hunter, Ms Solomon and the son would suffer if Mr Rosson were to move to New Zealand weighs strongly against visa cancellation. The hardship Mr Rosson himself would experience also weighs against cancellation. Not only would he suffer the emotional wrench of being separated from his partner and son, he would lose the supports available to him in Australia, such as secure accommodation and a supportive environment provided by family and friends.

92.     I am not persuaded by the suggestion that Mr Rosson effectively has no links to New Zealand. Even if accepted that many members of his extended family have migrated to Australia, have died or are in gaol, it is in my opinion something of a stretch to suggest that his links to New Zealand are effectively non-existent. His mother and two siblings with whom he has some contact reside in New Zealand. While it may be that some family are involved in criminal activities, on what is before me, it could not reasonably be maintained that Mr Rosson’s only remaining contacts are part of the New Zealand criminal milieu. If deported, Mr Rosson would return to his country of birth, where he lived for close to three decades and left only left six years ago. He will experience no language or cultural problems, and there is nothing to suggest that he would be less able to find employment in New Zealand than in Australia.

93.     The remaining factors addressed above are, in my opinion, neutral to the assessment of whether Mr Rosson’s visa should be cancelled.

Decision

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

95.     Three of the four primary factors favour cancelling Mr Rosson’s visa — his age when he commenced living in Australia, the relatively short period he has resided in Australia, and the protection of the Australian community. These factors must be balanced against the best interests of his son, which as noted I believe weigh heavily in Mr Rosson’s favour, together with the hardship he, his partner and his son’s mother will suffer if he were forced to return to New Zealand.

96.     Of the considerations that favour Mr Rosson, the best interests of the son is in my opinion plainly the most powerful. The son has been denied meaningful contact with his father for most of the time he has lived in Australia, and has been witness to conflict between his parents. Given those circumstances, the fact that he has displayed troubling behaviour as a teenager is hardly surprising. Notwithstanding his shortcomings as a parent, Mr Rosson has conveyed to his son that he is deeply loved and valued and represents a primary attachment figure to the boy. I have no doubt that Mr Rosson’s commitment to his son is genuine.

97.     I am also confident that if Mr Rosson were to return to New Zealand, he would not abandon his son and would endeavour to maintain regular contact. Given the boy’s age, phone contact — while not ideal — could be used to maintain the relationship. While the boy’s best interest would undoubtedly be served by having two parents in close proximity, he nonetheless has the advantage of a loving and supportive mother and a stable home in Australia. I am confident that if Mr Rosson did return to New Zealand, Ms Solomon would actively encourage the maintenance of the relationship between him and the son.

98.     While there a number of factors that strongly weigh in favour of not cancelling Mr Rosson’s visa, these are, in my view, outweighed by those that favour cancellation, in particular the protection of the Australian community. I acknowledge in making that decision that the son’s best interests lie with Mr Rosson remaining in Australia and that Ms Hunter, Ms Solomon and Mr Rosson himself will suffer hardship if he were to leave.

99.     For these reasons, I must affirm the decision under review.

I certify that the 99 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton.

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

Dates of Hearing:  27-28 October 2010
Date of Decision:        10  November 2010
Counsel for the Applicant:              Mr L Karp
Solicitor for the Applicant:              NSW Legal Aid Commission
Solicitor for the Respondent:         Clayton Utz