Dawson and Minister for Immigration and Multicultural Affairs - [2000] AATA 1113

DECISION AND REASONS FOR DECISION [2000] AATA 1113

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2000/386

GENERAL ADMINISTRATIVE DIVISION       )
           Re      KENNETH DAWSON
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Deputy President DP Breen, Presidential

Date12 December 2000
PlaceBundaberg

Decision The Tribunal affirms the decision under review.

(Sgd) DP BREEN
PRESIDENTIAL MEMBER
CATCHWORDS
IMMIGRATION - visa cancellation - seriousness of crime - general deterrence - length of residence.

Migration Act 1958 s 501
Minister for Immigration and Multicultural Affairs v Gunner (1990) 156 ALR 306
Clarke v Minister for Immigration and Multicultural Affairs AAT 1037/2000 delivered 27.11.00

REASONS FOR DECISION

12 December 2000 Deputy President DP Breen, Presidential Member

This was an appeal against a decision of a delegate of the Minister for Immigration and Multicultural Affairs made on 20 September 2000 to cancel the applicant's Special Category Visa under Section 501 of the Migration Act 1958.
The matter was heard by me in Adelaide on 29 November, 30 November and 1 December 2000. Written submissions were received from both parties by 6 December 2000 with submissions in reply by 11 December 2000. The applicant, Kenneth James Dawson, was represented by Mr P Tothill of Counsel, instructed by Messrs Michael Dadds and Associates. Ms S Maharaj of Counsel, instructed by Messrs Norman Waterhouse, represented the respondent Minister. I wish to thank both Counsel for their assistance with this difficult case.
Oral evidence was taken from the applicant, from Professor RD Goldney, a Psychiatrist and Mr ANE Fugler, a Psychologist.
The following documents were admitted into evidence.

Exhibit 1 "G" Documents
Exhibit 2 Report of Professor RD Goldney dated 27.11.00
Exhibit 3 Notice of Visa Cancellation dated 20.9.00
Exhibit 4 Application for Review and Attachment
Exhibit 5 Applicant's documents
Exhibit 6 Statement of Kenneth James Dawson dated 23.11.00
Exhibit 7 Statement of Joyce Dawson dated 22.11.00
Exhibit 8 Statement of Brian Dawson dated 22.11.00
Exhibit 9 Statement of Norman Dawson dated 23.11.00
Exhibit 10 Prison Certificates
Exhibit 11 Report of Mr ANE Fugler dated 19.11.00
Exhibit 12 Statement of Alice Whall dated 23.11.00
Exhibit 13 Extracts from NSW Corrective Services File
Exhibit 14 Police statement of the victim dated 8.7.95
Exhibit 15 Affidavit of Elizabeth Mary Reed

Mr Dawson is 46 years of age and a British Citizen. He arrived in Australia in 1966 at the age of 12 years with his family. He has resided in Australia since his arrival, except for one brief trip to England, two trips to India in the late 1970's and a trip to America. He served in the Australian Army from 1971 to 1977.
In 1996 Mr Dawson was convicted of assault occasioning bodily harm, aggravated sexual intercourse without consent and sexual intercourse without consent. He was sentenced to an effective head sentence of 5 years imprisonment with an additional term of 1 year and 8 months. This additional term is the New South Wales equivalent of the parole period in other states.
Mr Dawson's visa was cancelled under Section 501 of the Migration Act 1958. The convictions in 1996 and the subsequent sentence mean that he has a substantial criminal record as defined in subsection 501(7) and so fails the character test. Therefore, the Tribunal must consider whether to exercise the discretion in favour of the applicant, notwithstanding that he fails the character test. Ministerial Direction No 17 – Visa Refusal and Cancellation under Section 501 applies to the exercise of the discretion.
There are three primary considerations under this Direction. Firstly, the protection of the Australian community, secondly, the expectations of the Australian community and, thirdly, where an applicant is involved in a parental relationship with an Australian child, the best interest of that child. The latter consideration does not apply in this case.
Considering, firstly, the protection of the Australian community, the Tribunal must have regard to the nature and seriousness of the crimes committed, the risk of recidivism and the general deterrent effect that the cancellation of the visa would have on other non-citizens.
Rape and assault are considered very serious crimes under the Ministerial Direction. The brutal rape committed by the applicant in this case, against a former girlfriend, is a truly abhorrent crime. The applicant attacked the victim while she slept in her own house. In a prolonged attack he hit her, kicked her, raped her twice and held a knife to her chest. The description of the victim's injuries by the treating doctor, which was accepted by the Trial Judge, attest to just how violent this rape was. It is one of the worst incidents of rape I have seen before a Court, and I have seen many.
It takes a certain warped propensity in a man to enable him – indeed, it might be thought to compel him - to perpetrate dominance of and violence to a defenceless woman, of the order exhibited in this applicant's offences. The fact that this propensity makes a late emergence does not in any way ameliorate the criminal conduct; nor does it offer a prognosis of reduced threat in the future.
This woman was and remains a member of the Australian community - a member who has been driven into anonymity out of fear, as a result of this applicant's crimes. If the applicant has future relationships of the nature of his involvement with the victim, then those relationships will be with other female members of the Australian community. It follows that the threat posed of future crimes of this type is a threat to the Australian community - a threat which the current law requires that the community be protected from.
With respect to the risk of recidivism, the Tribunal notes that these are the only substantial offences on the applicant's criminal history. However, by his own admission, the applicant has a lengthy history of drug-taking. He has experimented with numerous types of drugs over 23 years. He admitted that drug-taking, namely a mixture of methadone, anti-depressants, and amphetamines, played a large role in the offences he committed. While the applicant argued that prior to 1996 his drug-taking had not been causative of other criminal activity, it is the Tribunal's view that the taking of illegal drugs is of itself a crime.
This was a violet crime and, as such, the risk of re-offending that the community should be expected to bear, is extremely low. Two psychological experts were called to give their opinions as to the risk of recidivism and whether the applicant suffered from any personality or mental disorders. Professor Goldney, a Psychiatrist, was of the opinion that the risk of recidivism was significant and that the applicant suffered from a general personality disorder. Mr Fugler, a Psychologist, was of the opinion that the risk of recidivism was low and that while the applicant suffered from some personality deficits, they were not sufficient to be classified as fitting the diagnostic criteria of a personality disorder.
In terms of the personality disorder, the opinions of the two experts were not that far apart. The fact that a person is less than perfectly well-adjusted is no reason for them to be removed from the country. The only relevance of the personality deficits displayed by the applicant is that it increases his vulnerability with respect to a relapse into drug-taking.
In the end, the risk of recidivism is a judgement that this Tribunal must make. As with all people who have been dependent on drugs, there will always remain a risk that they will relapse, no matter how long they have abstained from usage. The applicant admits that he has turned to drugs in the past to cope with stress, and it is a certainty that whether he remains in Australia or returns to England he will experience stress in his life again. The late but dramatic emergence of his violent criminal activity makes it much harder to predict his future behaviour.
It is true that while the applicant was in prison he completed courses to address his sexual offending and drug-taking. He has not tested positive to drugs during his prison sentence. While these are positive indicators towards rehabilitation, it is the Tribunal's view that given the length of the applicant's drug usage and the unexpected but extremely violent offences against his former girlfriend, there is still a real risk that the applicant will re-offend. While one would like to hope that the Australian prison system is effective in rehabilitating prisoners, in this case the risk that it has not is higher than the Australian community would expect to bear.
The question of general deterrence is not of great weight in this matter as the visa cancellation is not likely to be published outside of Mr Dawson's family. It really is time that this Department ran an awareness campaign and alerted non-citizens to the fact that a permanent resident visa does not allow them to stay permanently in this country but, rather, allows them to reside here on certain conditions. One of these conditions is that they remain of good character. Their visa can be cancelled at any time if it is perceived that they have breached these conditions, depriving them of any right to remain in this country. This applicant lamented his lack of knowledge of his liability to having his visa cancelled. It is a lament that I have heard from every applicant in this class of case and I have now heard many cases in this class. While ignorance of the law is never an excuse, it is up to the Department to ensure that people within its jurisdiction have sufficient opportunity to be made aware of the law, and of their liability under it.
The second primary consideration is the expectations of the Australian community. The Australian community does expect to be protected from abhorrent crimes and that the people who commit them will be removed from the country, even where there may be a low risk of recidivism.
I am well aware that there is little tolerance in the collective mind of our community for crime at any level and virtually none for crime committed by foreigners who have been extended the privilege of permanent resident status here. However, there is an even more abiding value held by Australians – and it is that if a person has paid a penalty imposed by the courts for his or her offence, then he or she should be able to get on with his or her life. In other words, we expect offenders to be penalised according to law, but we do not seek retribution.
It is well established that proceedings of this kind, and the legislation, under which they are formulated and conducted, are not at all to do with, nor do they serve the purpose of, punishment. It follows à fortiori, that they do not deliver retribution.
Rape accompanied by assault with a weapon is considered truly abhorrent by the Australian community. Domestic violence is also something which the community does not tolerate. Further, the applicant's prolonged and diverse drug-taking is evidence of a mind-set which the Australian community wants to see eradicated from this country. Contrary to the applicant's perceptions, most Australian males do not take drugs, particularly not to the degree the applicant has done so. His blatant disregard for laws banning drugs in this country is something that the Australian community would view very seriously. The fact that he does not have a string of convictions for possession may well be more a result of luck than an implied acceptance of such behaviour by the community.
Therefore the primary considerations are weighed against exercising the discretion in favour of the applicant.
There are a number of secondary considerations which must also be taken into account, although one on its own cannot outweigh a primary consideration. The pertinent secondary considerations include the applicant's ties to Australia, hardship to family members, family composition and recent good conduct.
In considering the applicant's ties to Australia, the Tribunal is mindful of the fact that he came to this country at the age of 12, nearly 35 years ago. Whilst the Tribunal must pay heed to the Federal Court Decision of Minister for Immigration and Multicultural Affairs v Gunner(1990) 156 ALR 306, and accepts that Sections 200 and 501 provide two different sources of power to the Minister, the legislation must be read and applied in its entirety. In assessing a person's ties to Australia, if under Section 200, ten years residence is considered so significant that deportation would not be justified outside of that time-frame, then the 32 years (taking into account his overseas travel) that the applicant has resided in Australia, must also be considered extremely relevant. This is not to say that a person who arrived as a minor and has spent most of their life in this country can never be removed, but it is a consideration which weighs in the applicant's favour.
It has been suggested that when a person arrives in this country as a minor and learns their criminal ways in Australia, then they are really Australia's problem and their country of origin should not be burdened with a person who took up criminal conduct elsewhere. It is this Tribunal's view that the applicant's drug-taking and criminal activities were not as a result of his interactions with the Australian community. He described the reasons for taking drugs as curiosity rather than peer pressure or social conditions. He said he wanted to understand what the effects were, why people liked to take them, and why they were illegal. This macabre experimental fascination with drugs makes it clear that the applicant would probably have developed a drug habit wherever he lived.
The applicant has some business ties to Australia, in that, he has his mechanics equipment in storage which he could use to start up a business in Adelaide if he wishes. However, this is really a business tie in potentium and the equipment could be sold or relocated to England to assist in his re-establishment there.
The applicant has fairly close ties with his family, although these ties are more with his mother and brother Brian than with the family unit as a whole. While he has endeavoured to visit them 2 to 3 times a year, most of his contact has been by phone or through letters.
The applicant has some aunts, uncles and cousins in England. However, he personally has had no contact with that branch of his family for over 20 years. He does have family in Australia who are, in varying degrees, willing to assist in his rehabilitation and re-integration into society.
The applicant's mother would suffer extensive emotional hardship if the applicant's visa were cancelled. She visited him the most regularly and supports him in his rehabilitation. Due to her ill health, she would be unable to travel to visit the applicant if his visa were cancelled.
The applicant's brother, Brian, would also suffer hardship if the applicant's visa were cancelled. Evidence was placed before me that he has come to rely on the applicant for financial advice and for assistance in completing manual tasks around the house, which he is unable to do due to injuries he sustained in a motorcycle accident. The welfare of Brian Dawson did concern me somewhat in my contemplation of this case. However, the accident occurred in 1988 and it has only been in the last year that the applicant has become involved in assisting his brother to any great degree. As such, it is my view that any hardship Brian will suffer will be short-term as he re-adjusts to not having his older brother living near him. He has gotten on with his life of the past ten years without his brother's continual assistance, and is likely to be able to do so in the future.
Whilst on parole, the applicant has not been involved in any criminal activity and has been taking steps to get his life back together. This is evidence of recent good conduct which must count in the applicant's favour.
There is one further consideration which, in the interests of justice, the Tribunal feels bound to take into account, even though it is not contained in the Ministerial Direction. This is the issue of the hardship which the applicant would face upon return to his country of origin. As I recently stated in the case of Clarke v Minister for Immigration and Multicultural Affairs, AAT1037/2000, it is fundamental to the application of natural justice that the total impact which the removal of a right would have on an individual be considered when deciding whether to deprive the person of that right. It is the Tribunal's view that transparent decision-making requires that this issue be considered in its own right, rather than be mingled in with some other consideration.
Mr Dawson has only visited England once, briefly in the 35 years since he left there, and that visit was nearly two decades ago. He currently has no support structure in place in that country, either emotional or financial, and any family members he does have there are effectively strangers. However, the applicant has travelled overseas by himself in the past and managed to establish himself in other countries for extended periods of time. Britain is a western democracy with a culture sufficiently similar to Australia. It also has extensive infrastructure and welfare support, as Australia does. As such, it is likely that Mr Dawson would manage to re-establish himself if he were returned to England, although the Tribunal does not doubt that he would suffer some hardship in the process.
It is the Tribunal's view that the secondary considerations are fairly evenly balanced.
This has by no means been an easy case, although none in this class of case are easy to decide. The crimes committed by the applicant are extremely serious and he does have a long history of drug-taking. He has made some effort at rehabilitation. However, it is the Tribunal's view that he still poses a real threat to the protection of the Australian community and that there is a significant likelihood that, given his history, he will relapse into drug usage. Mr Dawson has fairly strong ties to Australia and has resided here for over 30 years. He has no real ties to Britain. While the cancellation of his visa may seem a harsh outcome for the applicant, it is not designed to further punish him for his crimes. Given the nature of his offences and the real risk of recidivism, his removal is required to protect the Australian community.
For the above reasons the Tribunal affirms the decision under review.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential
Signed:         Emma Oettinger
  Associate
Date/s of Hearing  29.11.00, 30.11.00, 1.12.00
Date of Decision  12.12.00
Counsel for the Applicant        Mr P Tothill
Solicitor for the Applicant         Messrs Michael Dadds & Associates
Counsel for the Respondent    Ms S Maharaj
Solicitor for the Respondent    Messrs Norman Waterhouse