Delos Reyes and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 686
•20 July 2005
CATCHWORDS – IMMIGRATION – visa – cancellation – character test – meaning of “good character” – failure to pass character test – whether discretion should be exercised to cancel visa – weight to be given to principles of general deterrence – decision affirmed.
Migration Act 1958 ss. 31, 499 and 501
Migration Regulations 1994
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422; 139 ALR 84
R v Henry (1999) 46 NSWLR 346
Redebach v R (1991) 52 A Crim R 95
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780
R v McKee and Brooks [2003] VSCA 16
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
DECISION AND REASONS FOR DECISION [2005] AATA 686
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2005/365
GENERAL ADMINISTRATIVE DIVISION )
Re JOVANE DELOS REYES
Applicant
AndMINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 20 July 2005
Place: Melbourne
Decision:The Tribunal affirms the decision of the respondent dated 11 April 2005.
S A FORGIE
Deputy President
REASONS FOR DECISION
A delegate of the Minister for Immigration, Multicultural and Indigenous Affairs (“Minister”) cancelled Mr Jovane (Jovan) Delos Reyes’ visa under s. 501(2) of the Migration Act 1958 (“Act”) on the basis that he did not pass the character test in s. 501(6). I have decided to affirm the decision so that Mr Delos Reyes’ visa remains cancelled.
THE ISSUES
As Mr Delos Reyes does not pass the character test set out in s. 501(6) of the Act because he has a substantial criminal record, the only issue in this case is issue is whether the discretion in s. 501(2) should be exercised to cancel his visa.
BACKGROUND
Early life
Mr Delos Reyes was born on 8 September 1978 in Manila in the Philippines and holds Filipino citizenship. He has an older brother, Enripol, who is approximately eighteen months older than he. His parents had lived together between 1976 and 1980 but had a difficult relationship. They separated when he was about three years of age. He and his brother lived with their father, Mr Reldo Delos Reyes, and Mr Delos Reyes has not seen his mother since the separation. Mr Reldo Delos Reyes raised his two sons. While he was working, his children were cared for by a nanny employed by his sister, Rolma, to care for her children.
Mr Reldo Delos Reyes, who works as a car detailer, visited Australia in 1988 after he had met an Australian man who told him how open and friendly Australian people were. He had intended to stay for six months but was permitted to remain until 1991 when there were problems in the Philippines.
Mr Delos Reyes travelled to Australia with his father and brother on 1 January 1988 when he was 9 years of age. They came on a Visitor (V12) visa and remained in Australia until 31 July 1991. During their time in Australia, the family lived in Melbourne. Mr Delos Reyes completed grades 4, 5 and 6.
Three of Mr Reldo Delos Reyes’ siblings live in Melbourne: his brother, Rogen, who lives at Caroline Springs; his sister, Renea, who lives in Doncaster; and his brother, Rozel, who lives at Sunshine near him. His other brother, Royme, lives in Spain and his remaining two sisters, Renor and Rolma live in London and Canada respectively.
An officer of the Department of Immigration and Multicultural and Indigenous Affairs (“Department”) said that he would either have to marry an Australian girl or leave Australia. He had met Ms Wendy Connor by this stage and she was his girlfriend but, to him, staying did not seem to be the right thing to do. Consequently, Mr Reldo Delos Reyes returned with his family to the Philippines. He went without telling Ms Connor and did not contact her. After six months, she wrote to him through his brother telling him she loved him and wanted to marry him. Mr Reldo Delos Reyes applied for a fiancée visa and returned to Australia with his sons in May 1993.
The Delos Reyes family lived with Ms Connor and her two children by her previous husband in Morwell. Mr Reldo Delos Reyes and Ms Connor married in July 1993. They separated on 2 October 1993.
Mr Delos Reyes’ convictions
Mr Delos Reyes has been convicted of the following offences:
| Court | Date | Charge (counts) | Result |
| Sunshine Children’s Court | 22 September 1993 | Fail APPR re 26/08/91 Theft from Shop (Shopsteal) | Without conviction dismissed on entering an accountable undertaking for 26 weeks. |
| Moe Children’s Court | 20 April 1994 | Theft (2) | All charges without conviction. |
| Moe Children’s Court | 2 November 1994 | Traffick heroin Possess heroin | Both charges without conviction. |
| Moe Children’s Court | 18 January 1995 | Make journey without a ticket | Without conviction adjourned for six months on $100 good behaviour bond. |
| Moe Children’s Court | 8 February 1995 | Burglary (2) | All charges without conviction. |
| Moe Children’s Court | 12 July 1995 | Burglary Attempt Burglary Criminal Damage (Intent Damage/Destroy) Unlawfully on Premises/Precinct | All charges without conviction. |
| Moe Children’s Court | 6 September 1995 | Theft Breach re 12/07/95 | Both charges without conviction. Breach of youth supervision order. Order cancelled. |
| Moe Magistrates’ Court | 18 December 2005 | Use Indecent Language in Public Place | Convicted and fined $250. To pay $27.50 costs. |
| Moe Children’s Court | 20 December 1995 | Fail Produce Evidence of Concession – PTC | Without conviction fined $50. |
| Moe Magistrates’ Court | 15 January 1996 | Use Indecent Language in Public Place | Convicted and fined $250. |
| Morwell Magistrates’ Court | 26 June 1996 | Variation re 18/12/95 use Indecent Language in Public Place | Variation of fine. Fine cancelled. |
| Variation re 15/01/96 use Indecent Language in Public Place | Variation of fine. Fine cancelled. | ||
| Moe Magistrates’ Court | 8 October 1996 | Intentionally or recklessly cause injury | 4 months. To be served by way of intensive correction order. |
| Moe Magistrates’ Court | 14 October 1996 | Breach re 26/6/96 Use Indecent Language in Public Place | Breach of community based order. Order cancelled. Convicted and fined $149.00. Default 2 days. |
| Use Indecent Language in Public Place | Breach of community based order. Order cancelled. Convicted and fined $227.50. Default 3 days. | ||
| Moe Magistrates’ Court | 29 July 1997 | Harass witness Threat to inflict serious injury | 6 months on each charge concurrent. Sentence suspended for 18 months under section 27 of Sentencing Act. |
| Theft | 1 month concurrent. Sentence suspended for 18 months under section 27 of Sentencing Act. | ||
| Possess cannabis Use cannabis | Convicted and fined $500 on each charge. Drugs forfeited and destroyed. | ||
| Moe Magistrates’ Court | 21 April 1998 | Theft-from shop (shopsteal) | Both charges convicted and fined aggregate $500. |
| Breach re 29/07/97 | Breach of suspended sentence. | ||
| Theft | Breach of suspended sentence. Sentence further suspended for 12 months under section 27 of Sentencing Act. | ||
| Sunshine Magistrates’ Court | 21 July 2000 | Use unregistered motor vehicle – highway | With conviction, fined an aggregate of $2000.00 with $55.00 statutory costs. |
| Fraudulently use reg label/plate | With conviction, fined an aggregate of $2000.00 with $55.00 statutory costs. SUSPENDED from driving for 1 month. | ||
| Possess amphetamine Possess prescribed drugs | With conviction, fined an aggregate of $2000.00 with $55.00 statutory costs. Forfeiture order made by consent. | ||
| Melbourne Magistrates’ Court | 25 July 2001 | Traffick heroin | Aggregate 3 MONTHS imprisonment. |
| Possess heroin (2) Possess money-being proceeds of crime Use heroin Possess regulated weapon Theft of a motor vehicle Theft Fail to answer bail Fraudulently alter/use identification Unlicensed driving Own unregistered vehicle used on highway | Concurrent. | ||
| Sunshine Magistrates’ Court | 1 February 2002 | Traffick heroin | Breach of intensive correction order. Order cancelled. To serve unexpired portion of 80 days. Declare a period of 1 day has already been served by way of intensive correction order. |
| Sunshine Magistrates’ Court | 1 February 2002 | Burglary | Aggregate 4 MONTHS imprisonment. |
| Theft | Concurrent. Sentence is wholly suspended under s. 27 of the Sentencing Act 1991 for 2 years. | ||
| Theft of a motor vehicle | Aggregate 4 MONTHS imprisonment. Concurrent. Sentence is wholly suspended under s. 27 of the Sentencing Act 1991 for 2 years. Licence cancelled and disqualified for 12 months. Order on licence effective from 1/02/2002. | ||
| Moe Magistrates’ Court | 17 March 2004 | Breach of suspended sentence order | Proven Suspended sentence wholly restored. The restored term to be served is 4 months. |
| Traffick drug of dependence | Aggregate 18 MONTHS imprisonment. Concurrent. | ||
| Traffick drug of dependence (2) | Aggregate 18 MONTHS imprisonment. Concurrent. Effective total State term imposed is 1 year 6 months Time held in custody, 175 days, reckoned as a period of imprisonment already served under this sentence. Cumulative upon any uncompleted term owed to the State Parole Board. | ||
| Use drug of dependence (not named) | Aggregate 18 MONTHS imprisonment. Concurrent. Effective total State term imposed is 1 year 6 months Time held in custody, 175 days, reckoned as a period of imprisonment already served under this sentence. Cumulative upon any uncompleted term owed to the State Parole Board. | ||
| Possess prohibited weapon without exemption/approval | Aggregate 18 MONTHS imprisonment. Concurrent. Effective total State term imposed is 1 year 6 months Time held in custody, 175 days, reckoned as a period of imprisonment already served under this sentence. Cumulative upon any uncompleted term owed to the State Parole Board. | ||
| Possess money – being proceeds of crime | Aggregate 18 MONTHS imprisonment. Concurrent. Effective total State term imposed is 1 year 6 months Time held in custody, 175 days, reckoned as a period of imprisonment already served under this sentence. Cumulative upon any uncompleted term owed to the State Parole Board. |
Relationship with Ms Dianne O’Goerk
Ms Dianne O’Goerk is 22 years of age. They met in 2002 and have lived together for the past three years.
THE EVIDENCE
Early life in Australia
Mr Delos Reyes said that he found it very difficult to settle in the Philippines when they returned to live there. He was very excited when his father told him that he and his brother were to return to Australia. Mr Delos Reyes’ father was engaged to Ms Wendy Connor and the family moved into Mrs Connor’s house where she lived with her two children.
For the first few weeks, Mr Delos Reyes enjoyed his return to Australia but then, he said, Ms Connor started to complain about having to support all of them. In Mr Delos Reyes’ view, she treated her own children better than she treated Enripol and him. She would refuse to give them food if their father was not present. Later, he continued, he saw Ms Connor throw things around the house and throw knives at his father. She said that she did not want him and his brother living in her house. Her children and she were rude to him, he said.
In cross-examination, Mr Delos Reyes said that he could have gone to his uncle for help. He lives in Australia but he did not want to burden him. His father tried to get him to go home but he did not want to because of the situation with his step mother. Although he had tried to find work on a few occasions, he had not been successful because of the way he was living and because he was using drugs.
Mr Reldo Delos Reyes confirmed that his sons had told him that Ms Connor hid food from them so that they could not eat when he was not present. He was not happy in his marriage because he wanted to mix with people from the Philippines, who lived in Gippsland, but his wife did not want him to go out at all. He worked at Welshpool processing scallops and also cooked and cleaned at home. Mr Reldo Delos Reyes said that his wife became violent on occasions and had an affair with another man. As a result of this unhappy situation, Mr Reldo Delos Reyes continued, his sons did not want to stay at home. At first, they began to go out and, later, they stopped returning home at night. He thought they were staying with friends or just out on the streets.
In a letter to the Department dated 28 July 2004, Mr Reldo Delos Reyes wrote, in part:
“When my sons and I migrated to Australia in 1993, we lived in Morwell, Victoria. I worked in Port Welsphol as a fruit picker in a farm. A year passed and I received payment from Centrelink as a single parent. My sons began to receive financial sustenance from the government. They were very happy children and they participated in various school activities. They were very bright students. Unfortunately, they began to mix in with the wrong crowd and started to get into bad habits. They came home late at night. Living independently, I tried to discourage my children from doing wrong things but they defended that they were only curious. I remember Jovan and his brother smoking marijuana when they were in 16 years old. It came to a point that I could not stop either of them from using drugs. They were defensive and were aggressive towards me, yelling. They did not want to study anymore. I asked the police for help but the police informed me that if the children are not doing anything to harm me, then they could not help me. One day, the police called me to advise that my son Jovan was in trouble. That is the reason why he is illegible [sic] for an Australian citizenship. He acquired a police record against his name. Since then, he lost confidence and was stubborn. On the other hand, my older son Enripol was diagnosed with schizophrenia as a result of drug and alcohol abuse. The both suffered from a miserable life due to drugs.”[1]
[1] Exhibit 1, G11
Ms Bridget Zubiri, the Community Settlement Service Worker at the Filipino Community Council of Victoria Inc. wrote a letter dated 26 July 2004 to the Department. She noted that Mr Reldo was a mother and father to his sons and continued:
“… When the family migrated to Australia in 1993, Reldo had to work hard for their survival. Because the children had no parental guidance while Reldo was at work, they got involved with the wrong friends who influenced them to take drugs. As a result, Enripol became schizophrenic and Jovan got jailed for drug use.”[2]
[2] Exhibit 1, G12
Ms Lorinda Zervos is a friend of Mr Reldo Delos Reyes. She described the circumstances in which Mr Delos Reyes got into trouble as follows:
“… When they migrated here in Australia, Mr Reldo Delos Reyes was by himself raising his children (Jovan was three years old then). He was the father and mother to his kids. In Jovan’s teenage years, Mr Reldo never suspected for a moment that his son was drifting. Mr Reldo was so busy providing for his kids’ education and wellbeing. He was working hard and if he could work 24-7 he would do so. Now, that these things happened, he could not believe what went wrong. Jovan was one of the brightest students when he was at school. So it was a big shock for him to hear that his son was in trouble. He counselled Jovan and tried every avenue for his son to change but it seemed the influence of friends, drugs and money lured Jovan deeper.”[3]
[3] Exhibit 1, G13
Ms Connor had made a statutory declaration on 14 December 1993 stating that her separation from her husband had been due to her violence and temper.[4] She was continually nagging her husband due to their financial problems. They lacked communication and had problems adjusting because of their different cultures. Ms Connor said that she threw things at her husband. They included a clock, telephone, cutlery, microwave, rice cooker, toaster and frying pan. His two children ran away because of her domestic violence at home, she said. In conclusion, she stated that she forced her husband to leave the house permanently. They had no wish to reconcile.
[4] Exhibit D in which Ms Connor referred to herself as Wendy Delos Reyes.
Mr Delos Reyes said that he decided to leave Ms Connor’s house because of all of the problems and because he was not wanted. He began to live with people who were older than he and who had been in trouble with the police. As he did not have any income, he stole to obtain money to survive. It was at about this time that he started to smoke cannabis. When he was about 16 years of age, he began to use heroin and has used it on and off since then. When he started to use heroin, he said, he needed it and so helped friends in Footscray to sell it. From then on, he got into a lot of trouble and committed many offences. Mr Delos Reyes said in his statement:
“… Looking back now I realize how serious the things I have done were, but at the time I was very confused. Everybody that I was hanging around with was using drugs and stealing and that’s what I did too.”[5]
[5] Exhibit A at [9]
In cross-examination, Mr Delos Reyes said that he knew that he had committed a lot of offences since he committed his first when he was approximately 14 years of age. He could not remember all of the offences completely. He did recall ceasing to take heroin in 2003 when he spent twelve months in custody.
The psychological report prepared by Ms Katerina Volny, Psychologist, for the Moe Magistrates’ Court on 20 October 2003 reported that Mr Reldo Delos Reyes believed that Jovan’s problems began when his elder son became ill with schizophrenia.[6] Jovan became worried and sad and began to abuse substances. Mr Reldo Delos Reyes had told Ms Volny that Jovan was generally good at his schooling and studies and had been employed as a chef, in a car dealership and in labouring positions.[7] He had held the position as a chef for eighteen months and that in the car dealership for five months. He lost the position in the car dealership due to his being absent because he had a lot of things on his mind.[8]
[6] Exhibit H at [1.1]
[7] Exhibit H at [1.1]
[8] Exhibit H at [1.0]
As to his substance abuse, Ms Volny reported that Mr Delos Reyes had first used marijuana at the age of 14 or 15 years but had never used it regularly.[9] During several periods of time, though, he would use amphetamines for three or four days each week. Ms Volny continued:
“Mr Delos-Reyes acknowledged that periods of regular use of amphetamines had caused him to loose [sic] employment, housing, and into trouble with the law on several occasions throughout his life and that this was a problem that must cease or it could destroy him. However, he also was keen to emphasise that he can stop his drug use because, he knows it is wrong, and because he has to fulfil his responsibility to look after his brother. He reported that for the first fourteen months of his suspended sentence he was successful in maintaining his abstinence from amphetamines, and identified that socialising with other drug users had lead to his relapse. Mr Delos-Reyes indicated that he was willing to engage in substance abuse treatment programs.”[10]
[9] Exhibit H at [2.1]
[10] Exhibit H at [2.1]
Ms Volny concluded her report saying:
“… It is respectfully recommended that Mr Delos-Reyes has access to ongoing psychological treatment for this disorder. Given the persistence of this disorder for some time it may be most beneficial for Mr Delos-Reyes to have some intensive treatment via a substance abuse residential treatment facility. Mr Delos-Reyes is somewhat reluctant to perceive himself as requiring assistance because of his need to view himself as a person capable of rescuing his chronically mentally ill brother, however he did express that he would be willing to engage in substance abuse treatment programs.
It is noted that Mr Delos-Reyes also presented with agitation, preoccupation some with family problems, indicating a possible presence of anxiety and obsessive thinking, however there is presently insufficient information to make conclusive comments about problems in these areas of functioning. Further assessment of these areas may be beneficial when planning his treatment program. It is likely that a focus on coping with family problems and anxiety will be important components of his treatment for substance abuse.”[11]
[11] Exhibit H at [3.0]
Changes in Mr Delos Reyes’ life
Mr Delos Reyes said that he tried to stop using drugs and committing crimes. In 2000, he lived with his father and worked as a chef for almost a year. He thought that things were going well and he was not committing any offences but he still wanted to see his old friends. Once he saw them, he started to use drugs again and stopped working at the restaurant. He explained that things had become a bit hard. There were problems in the family and particularly with his brother. As he was working at Sunshine but living at Heidelberg, he decided it would be easier for him were he to live at Preston. Consequently, he moved to Preston. Mr Delos Reyes continued to feel a lot of pressure. At the time, he was working for 68 hours each week and there were a lot of problems with his brother, who could not make a decision for himself and who had to be assisted in every way. Enripol would telephone him each night after work and talk about his problems and what had happened in their childhood. Mr Delos Reyes said that he found it difficult to be punctual for work. He left work when it was “not going too well” and started to mix with people.
Mr Reldo Delos Reyes also referred to events at this time. He said that his son, Enripol, became sick with schizophrenia in 1997. He was admitted to a psychiatric hospital. After Enripol’s discharge, Mr Reldo Delos Reyes decided to take him to Mildura to live. His son, Jovan, continued to live in Morwell. In 2000, they moved from Mildura to Sunshine. Mr Delos Reyes returned to live with his father and brother. He worked as a chef at a Malaysian restaurant. His son’s friends kept telephoning him, Mr Reldo Delos Reyes said. They wanted his son to meet them and he would go. Enripol would also go out all night and stay at the Casino. Jovan started to see his old friends once more. He stopped working, started using drugs and ultimately lost his job as a result.
Mr Delos Reyes’ subsequent life
In 2001, he was again arrested for selling drugs. He was ordered to serve an Intensive Corrections Order (“ICO”) but did not comply with it. His reasons for his not complying were that he could not get work, he had no permanent address at which he could receive orders and he was not stable. He was using drugs, amphetamines and heroin, when the ICO was imposed and continued to use drugs after its imposition. After two and a half months, he breached the ICO and served two and a half months’ gaol. On his release, he returned to Morwell to get away from the influence of Melbourne. He stayed away from drugs for eight to ten months but then “went off on the wrong track again”. Mr Delos Reyes thought that he had undergone some drug counselling before he was imprisoned but did not make use of any such counselling on his release. On his release, he said, he did not have any support to help him. As his father could not take him into his home, he returned to Morwell. For a while, he was able to “stay clean”. Despite his intention to get away from his old life, Mr Delos Reyes said that he met up with his friends again. He started using drugs again and then started selling them to support his habit.
Mr Delos Reyes met Ms O’Goerk after his release from gaol. He thought that they met sometime in 2002. They have lived together since September 2002 and are still together. Ms O’Goerk is an Australian citizen.
In 2003, a friend offered Mr Delos Reyes some ice to try. He began to use it and then to sell it. He was subsequently charged with trafficking and other offences and he pleaded guilty to all of them. In his statement, Mr Delos Reyes said that he was really shocked when he was sentenced to a minimum of 12 months’ imprisonment. Imprisonment made him realise how bad had been the acts he had done. He decided to change his life and thought about how to change his life. On his release, Mr Delos Reyes decided, he needed to stay very focused and to stay away from the crowd that he had been with previously. He needed to support himself in an honourable way. In cross-examination, Mr Delos Reyes said that he realised the harm that his drug dealing caused to families and to those who care for drug users.
When he was in gaol, he said in his statement, he tried hard to “stay clean” but “really freaked out” when he received a letter dated 29 June 2004 from the Department.[12] That letter told him that he might be liable to have his visa cancelled once the Minister of her delegate had considered his criminal history in Australia. Mr Delos Reyes said that he was so confused after he had read the letter and afraid about what would happen to him that he smoked cannabis and returned a “dirty urine” sample.
[12] Exhibit A at [15]
Mr Delos Reyes undertook drug counselling on his release and saw his parole officer. During counselling, he and his counsellor talked about things that he had to avoid and about other ways of doing things. He was not using drugs of any sort at the time, he said. During 2004 and 2005, he did not commit any offences. He was waiting for his parole to finish so that he could concentrate fully on working. Mr Delos Reyes said that he and Ms O’Goerk remained together and their relationship was good. They discussed their future and planned to marry after he had completed his parole. They also planned to move away from the Morwell area, start over together and get work.
Mr Reldo Delos Reyes said that he visited his son frequently when he was in gaol. When he was in Melbourne and then at Laverton, he visited each week. When he was in the Fulham Correctional Centre (“Fulham”), he visited each fortnight. When his son was released from prison in September 2004, Mr Reldo Delos Reyes thought that he was doing very well. He visited Enripol often and probably at least twice a week. Enripol, Mr Reldo Delos Reyes said, is very dependent on his brother. He has never seen any signs of Jovan’s taking drugs. Mr Reldo Delos Reyes is very concerned as to what will happen to his son if he is required to return to the Philippines. There is no-one who can help him in that country and he can no longer speak the language, Tagalog.
Imprisonment in 2003-2004
The General Manager of Fulham, Mr John Myers, noted that Mr Delos Reyes’ behaviour in the unit had been satisfactory. He had been employed as a unit gardener and staff observations had been “fairly positive in regards to his performance”.[13] Mr Myers did not mention the dates of those tests. While at Fulham, Mr Delos Reyes had returned two positive urine tests. He was regarded as being a high risk of re-offending. He has completed the induction programmes at Fulham and participated in the Drug Free Incentive Program to enable him to resume the contact visits programme. In July 2004 when Mr Myers wrote his letter, Mr Delos Reyes had applied for the Cognitive Skills and Drug and Alcohol programmes but was waiting for a date to start them. He had not shown any interest in the educational courses.
[13] Exhibit 1, G6
Enripol
Enripol has been diagnosed as suffering from severe depression and schizophrenia. His general practitioner wrote that “Because of his condition, he needs his brother Jovane Delos Reyes, to look after him.”[14] Mr Reldo Delos Reyes said that the diagnosis was made in 2001.
[14] Exhibit F
Mr Delos Reyes said that Enripol lives with his uncle in a house across the road from his father. It takes Mr Delos Reyes two hours to travel to visit him. He sees him at least twice a week for approximately half a day. His brother, he said, always has problems. Enripol has a confused mind, Mr Delos Reyes explained, and he tries to get through to him. Mr Delos Reyes feels that he has had some success with Enripol. He is the only person to whom Enripol relates and with whom he speaks. Enripol’s cousins visit him occasionally but not often. Mr Delos Reyes is thinking about moving to another State or another suburb in Melbourne but said that he would keep in touch with Enripol. Mr Delos Reyes said that he is always there for his brother, who needs a lot of support. Ms O’Goerk confirmed that Mr Delos Reyes is very close to Enripol.
Mr Reldo Delos Reyes said that Enripol is shy with people and does not want to mix with them. His brother always helps him. Mr Reldo Delos Reyes wants to give his son the responsibility for looking after Enripol. He is tired of looking after both of them.
Mr Delos Reyes’ relationship with Ms O’Goerk
Mr Delos Reyes said that Ms O’Goerk knew that he was not an Australian citizen when she met him. Although his brother had become an Australian citizen, he had not been able to do so because of the offences he had committed.
Ms O’Goerk said that her love for Mr Delos Reyes is so sure that she and he want to settle down, marry and have a baby. She could not lose him for her life would go from good to bad. If he is given one chance, they will be able to have their baby and to start a new life. She said that he is a good man who has just got around with some bad people. Mr Delos Reyes, Ms O’Goerk said in her statement, only ever tries to help people but he ends up with bad people. He would do anything for anyone. She can see the change in him now that he wants to be with her.
Ms O’Goerk said that she was taking drugs when they first met. She was in a bad way but, when Jovan came into her life, he made it better and made her a real lady. With him in her life, she feels safe and happy. Since he was taken into immigration detention, she has been prescribed anti-depression medication. She has felt lost without him as she is used to having him at her side. They never left each other. Ms O’Goerk said that she had attended a special school before leaving at the end of Year 11 when she was 18 years old. She has been receiving a disability support pension since she was 16 years old. Jovan has helped her with her reading and writing as she still has trouble with it.
Ms O’Goerk said that she had been convicted of using drugs in 2003 and received a suspended sentence. She did not breach the terms of her suspended sentence but has used amphetamines once or twice this year. The most recent occasion was two months before the hearing. Ms O’Goerk said that she was on her own at the time and that Mr Delos Reyes was not involved. She has not used drugs since then. Ms O’Goerk said that she was being investigated for the possession of counterfeit money. In her statement, she said that she had been given it by a friend and thought that it would be good to have some money. She was extremely sorry and said that she had learned from her mistakes. Her boyfriend was not involved in the matter in any way. Ms O’Goerk said that she had been charged with possessing a firearm. She had bought it together with ammunition because she had been scared when a former boyfriend had threatened her. As he was scared of guns, she thought that she would point it at him if he were to threaten her and that he would then run away. She kept the firearm in her bedroom.
At the time of the hearing, Ms O’Goerk had started a TAFE course relating to business management and computers. She did not know how long the course would be.
The future
Mr Delos Reyes said that he has no future in the Philippines. It would be very hard for him to adjust as he would have no family support. Ms O’Goerk has said that she would go with him if he had to return to the Philippines but he could not see it happening. It would be hard for her to live there, he observed. He has no place to live there and there is no social security and no subsidised housing of which he is aware. Mr Delos Reyes has forgotten most of the Tagalog he knew as a child.
Mr Delos Reyes said that he saw his future as doing his best to do the right thing. He wanted to get married as he knew that would keep him out of trouble. Marriage would bring responsibilities and he would not need to take drugs. Taking drugs is wrong and does not set a person up in the right way.
In cross-examination, Mr Delos Reyes agreed that a number of his offences had taken place at times when he was having difficulties, including difficulties with his brother and his work, or had met bad people. If he were to face pressure in the future or if he were to meet bad people, Mr Delos Reyes said that he would not resort to using drugs. He realises that, were he to offend again, it would be very difficult for him to remain in Australia. Mr Delos Reyes said that his body did not feel the need to take drugs.
Mr Reldo Delos Reyes said that he has seen his son when he is affected by drugs. He has not seen him in that state since 2004. Were his son required to return to the Philippines, he would find it hard as he has no family and has adapted to the Australian way of life. He needs to look after his brother. Enripol cannot control himself and does not follow what he, his father, tells him. At 50 years of age, Mr Reldo Delos Reyes said that he needs to have his own life. He cannot force his son to keep appointments or to take his medicine.
When asked whether his son had said that he would stop taking drugs, Mr Reldo Delos Reyes replied that he had not told him that. He has stopped in the past but it did not work out and he did not know why it had not.
If his son had to return to the Philippines, he would not visit him as he would not be able to afford to do so. It would be very hard for him were that to happen and very hurtful. The family has been together for 25 years. He could not accept that the family should be separated in this way. He would give up his Australian citizenship if it meant that his son could stay. Mr Reldo Delos Reyes said that he has told his son that he has to choose him or his friends. He knows that his son will choose him because Enripol needs him so much. He has seen indications that his son will change his ways. His son has been looking for work, tells him that he will be straight and tells him that he will be responsible for his brother.
Ms Zubiri recommended in her letter to the Department that the Delos Reyes family be kept together and that they be helped to put their lives in the right direction.[15]
[15] Exhibit 1, G12
Mr Rozel Delos Reyes wrote in support of Mr Delos Reyes’ remaining in Australia:
“I would like to take this oppurtunity [sic] to express my support for my nephew, Jovan de los Reyes. My nephew has been a victim of bad influence which he got from the surrounding environment.
When he came to Australia, he was a ten year old innocent boy. He goes to school everyday, goes to church every Sunday and a very loving person. It was in his early teenager stage that everything went wrong.
I can see that almost every Australian kid has been subjected to that stage and they learn their lesson later on. I got three children and they all went into that stage and they are all settled down now. It is unfair that the Australian government will send him back to the Philippines because of his bad experience.
Jovan is very important to us because he is a part of our family. He got no chance or future living on his own if the Australian government will deport him. He needs our support and if he is not with us, no one would give support to him.
It would be cruel and inhumane to send him back to the Philippines. If immigration is thinking about what effect will he inflict to the society, does the immigration ever think of what society has caused to my nephew? Did we forget the he inherited his bad influence from the Australian society?
I know that immigration is trying to protect the society. There should be other ways of protecting society other than to deport persons like him.”[16]
[16] Exhibit G
Mr George McBride, who has known Mr Reldo Delos Reyes for a number of years, also wrote in support of Mr Delos Reyes’ remaining in Australia.[17] Mr McBride wrote that sending Mr Delos Reyes to the Philippines would be to send him to his death because the way of life is different. Mr Delos Reyes, Mr McBride said, would have to live a life of crime to support himself as he does not have any means of support. Furthermore, Enripol needs his brother’s support. If Mr Delos Reyes were given another chance, Mr McBride said that Mr Reldo Delos Reyes would stand by his son to support him to be a better person and to rehabilitate himself.
CONSIDERATION
[17] Exhibit 1, G14
Framework of Act
Under the Act, the Minister may grant visas either to travel to and enter Australia or to remain in Australia or to do both. There are classes of visas.[18] Some are specified in the Act itself and some are prescribed in the Migration Regulations 1994 (“Regulations”).[19] The Regulations may prescribe criteria for a visa or for a visa of a specified class.[20] For the purposes of this case, the prescribed criteria for the grant to a person of a visa of the type held by Mr Delos Reyes are found in the primary criteria (and secondary criteria, if any) set out in the relevant Part of Schedule 2 to the Regulations. Among the primary criteria that must be satisfied for a subclass 801 resident visa is that, at the time the decision is made, the person satisfies the requirements of public interest criterion 4001 i.e. that there is no evidence that might justify refusal of the visa under s. 501.
[18] Act, s. 31(1)
[19] Act, s. 31(2)
[20] Act, s. 31(3)
Even if a person satisfies the primary criteria for a visa, s. 501(2) of the Act provides that:
“The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.”
The “character test” is set out in s. 501(6), which, in so far as it is relevant, provides that:
“For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
(b)…
(c)having regard to either or both of the following:
(i)the person’s past and present criminal conduct;
(ii)the person’s past and present general conduct;
the person is not of good character; or
(d)in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i)engage in criminal conduct in Australia; or
(ii)harass, molest, intimidate or stalk another person in Australia; or
(iii)vilify a segment of the Australian community; or
(iv)incite discord in the Australian community or in a segment of that community; or
(v)represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.
Otherwise, the person passes the character test.”
A “substantial criminal record” is defined in s. 501(7) to mean, in part, that:
“… a person has a substantial criminal record if:
(a)…
(b) …
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or
(e)…”
The term “imprisonment” means “… any form of punitive detention in a facility or institution”.[21]
[21] Act, s. 501(12)
The Direction
Pursuant to s. 499, the Minister may give written directions to a person or body about the performance of functions or the exercise of powers under the Act. The person or body must comply with those directions which must not be inconsistent with the Act or the regulations made under it. On 23 August 2001 the Minister made directions under s. 499 for the guidance of decision-makers in making decisions to refuse or cancel a visa under s. 501 of the Act, Direction – Visa Refusal and Cancellation under section 501 – No. 21 (“the Direction”). This is a matter to which the Tribunal will pay regard and particularly so as is it is policy formulated by the Minister. At the same time, “… the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.” (Drake v Minister for Immigration and Ethnic Affairs). [22]
[22] (1979) 24 ALR 577; 2 ALD 60 at 590; 70 per Bowen CJ and Deane J
In commenting generally upon his power to refuse or cancel a visa, the Minister stated in the Preamble to the Direction:
“In exercising this power, the Minister has a responsibility to the Parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to refuse to grant visas, or cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it.
… When a visa applicant or a visa holder does not pass the Character Test, decision-makers will decide whether to refuse the application or to cancel a visa. Exercise of this discretion will take into account a wide range of factors including the expectations of the community, the nature of crimes committed, the non-citizen’s links to Australia and any relevant international law obligations.”
The Minister goes on to give a direction as to the purpose for which the powers of refusal or cancellation were given by the Parliament in enacting s. 501 when he said:
“The purpose of refusing or cancelling a visa under section 501 is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to enter or to remain in the community.”
The Direction - application of the character test
The Direction is then divided into two: the application of the character test and the exercise of the discretion. Taking first the application of the character test, there is no dispute between the parties, and I find, that Mr Delos Reyes has a substantial criminal record within the meaning of s. 501(7)(c) and so does not pass the character test.
The authorities regarding “good character”
Although Mr Delos Reyes has not passed the character test, it is worthwhile to focus for a moment on what is meant by the expression “good character”. It was considered in Re Lachmaiya and Department of Immigration and Ethnic Affairs[23] where Deputy President McMahon said that:
“‘Good character’ cannot have the meaning commonly attributed to it in criminal trials. In that context, it usually means absence of convictions or, at most, absence of adverse police notice. The distinction drawn in the two subparagraphs between criminal and general conduct supports the view that here, good character does not have the narrow criminal law meaning. There are many cases dealing with prohibited references to bad character and the effect on trials when evidence of that nature is allowed before a jury. In the present context, it is more likely that good character was intended to be given a broader meaning.
The Macquarie Dictionary defines character as ‘1. the aggregate of qualities that distinguishes one person or thing from others; 2. moral constitution, as of a person or people; 3. good moral constitution or status; 4. reputation; 5. good repute; 6. an account of the qualities or peculiarities of a person or thing.’ In assisting the Minister to determine whether a person has a good aggregate of qualities, as distinct from a bad one, regard should be had to the structure and purpose of the legislation.”[24]
[23] (1994) 19 AAR 148
[24] (1994) 19 AAR 148 at 154-155
In Re Prasad and Minister for Immigration and Ethnic Affairs,[25] Deputy President McDonald added:
“A decision about whether a person is of good character requires a consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.”[26]
[25] (1994) 35 ALD 780
[26] (1994) 35 ALD 780 at 781
What is meant by the expression “good character” was also considered by the Full Court of the Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs.[27] While each rejected the notion that good character referred to a person’s reputation or repute, Lee J expressed that to which it does refer in the following passage:
“Unless the terms of the Act and regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion …
…
Notwithstanding the breadth of the disqualifying elements of the prescribed criteria, the purpose of reliance upon the concept of good character in the regulations is of importance. Common sense suggests that the Act and regulations are not concerned with infractions or patterns of conduct that show weaknesses or blemishes in character but with ensuring that the exercise of a sovereign power to prevent a non-citizen entering Australia is only invoked when the non-citizen is a person whose lack of good character is such that it is for the public good to refuse entry.”[28]
[27] (1996) 68 FCR 422; 139 ALR 84 (Davies, Lee and Nicholson JJ)
[28] (1996) 68 FCR 422; 139 ALR 84 at 431-432; 94
Finally, regard should be had to the judgement of the Full Court of the Federal Court in Goldie v Minister for Immigration and Multicultural Affairs.[29] Speaking generally of s. 501, the Full Court said that it:
“… does not charge the decision-maker with the task of making a judgment, general in nature, about the character of a person, ie, a judgment to which the statutory context is of no relevance. The concept of ‘good character’ in s 501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is ‘not of good character’ within s 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry.
… Even though the appellant sought a long-term entry permit, the tribunal may well have set too high a standard in determining, on the basis upon which it acted, that he was not a person of good character: it appears to have concentrated, in making this finding, on considerations showing a lack of the highest integrity on his part, without making any attempt to test the deficiencies it identified in his conduct against the level of harm to the public good that would be presented by his admission into the Australian community on a permanent basis. However, no challenge being made to the tribunal’s decision on this ground, so it is unnecessary to pursue this question.”[30]
[29] (1999) 56 ALD 321 (Spender, Drummond and Mansfield JJ)
[30] (1999) 56 ALD 321 at 324-327
The Direction – exercise of the discretion
As I have found that Mr Delos Reyes does not pass the character test, I must now consider whether or not his visa should be cancelled. This is the discretionary aspect of the character test. The Minister has directed that there are both primary and other considerations to which a decision-maker should have regard in exercising the discretion. Decision-makers are directed that they:
“… must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.”[31]
[31] Direction, cl. 2.2
The three primary considerations are:
“(a)the protection of the Australian community, and members of the community;
(b)the expectations of the Australian community; and
(c)in all cases involving a parental relationship or other close relationship between a child or children and the person under consideration, the best interests of the child or children.”[32]
[32] Direction, cl. 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 Delos Reyes’ conduct; the likelihood that he will repeat it; and whether visa refusal might prevent or discourage similar conduct in the future.[33]
[33] Direction, cl. 2.5
Of particular significance in relation to the seriousness and nature of Mr Delos Reyes’ conduct, I must have regard to the Direction that:
“It is the Government’s view that the following are examples of offences which are considered by the Government to be very serious:
…
(e)armed robbery (including robbery involving the use of imitation weapons), home invasion;
…
(n)any other crimes involving violence or the threat of violence:
such crimes are of special concern to the welfare and safety of the Australian community;
…”[34]
[34] Direction, cl. 2.6
In assessing such matters, regard must also be had to any relevant factors put forward by Mr Delos Reyes as mitigating factors.[35] The sentence imposed for any offence is regarded as an indication of the seriousness of the offender’s conduct against the community.[36] Regard must also be had to the likelihood that his conduct may be repeated and to the need to deter other people from repeating such conduct. In assessing that in the context of Mr Delos Reyes’ case, it is relevant to have regard to:
“the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make.”[37]
General deterrence, the Direction continues, is intended to deter others from committing the same or similar offences.[38]
[35] Direction, cl. 2.8(a)
[36] Direction, cl. 2.7
[37] Direction, cl. 2.10(c)
[38] Direction, cl. 2.11(a)
Consideration must be given to the second primary consideration i.e. the expectations of the Australian community as they have been identified by the Minister as follows:
“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. …”[39]
[39] Direction, cl. 2.12
The third primary consideration relates to the best interests of a child. That is not relevant in this case as Mr Delos Reyes does not have any children.
The Minister has recognised that there are considerations, other than primary considerations, which may be taken into account. As each of those other considerations is given less weight than is given to the primary considerations, I will return to them later in these reasons. Before doing so, I should mention the manner in which I am required to consider primary considerations. This was considered by the Full Court of the Federal Court in Wan v Minister for Immigration and Multicultural Affairs[40] in the context of the primary consideration relating to the best interests of the children. The Full Court said:
“32 An identification by the Tribunal of what the best interests of Mr Wan’s children required, and a recognition by the Tribunal of the need to treat such interests as a primary consideration, would not have led inexorably to a decision by the Tribunal to adopt a course in conformity with those interests. That is, even had the Tribunal concluded that the best interests of the children indicated that Mr Wan should be granted a visa, it was legally open to it to refuse to grant Mr Wan a visa. Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of Mr Wan’s children, it was entitled to conclude, after a proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children. However, it was required to identify what the best interests of Mr Wan’s children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.
33 The written reasons of the Tribunal suggest that it regarded the expectations of the Australian community as a primary consideration (indeed, it might be thought, the primary consideration) in the exercise of the discretion to grant or to refuse to grant Mr Wan the visa for which he had applied. The Tribunal was entitled to regard the expectations of the Australian community as a primary consideration provided that it did not overlook that, on the procedure which it had adopted, procedural fairness demanded that it act on the basis that the best interests of Mr Wan’s children were a consideration of equal significance (that is, also a primary consideration). So, for example, the Tribunal might have concluded that the best interests of Mr Wan’s children required that Mr Wan be granted the visa, but that the damage to their interests that would flow from his being refused the visa would be of only slight or moderate significance. If the Tribunal had also concluded that the expectations of the Australian community were that a non-citizen who engaged in conduct of the kind engaged in by Mr Wan would not be granted a visa, and that a decision to grant such a visa would be a most serious affront to the expectations of the Australian community, it would have been entitled to conclude that, in the circumstances of the case, the best interests of the children were outweighed by the strength of community expectations.”[41]
[40] (2001) 107 FCR 133 (Branson, North and Stone JJ)
[41] (2001) 107 FCR 133 at 142
Before returning to the balancing of the primary considerations, I will set out the remaining considerations of which the Direction requires consideration. These considerations are considered by the government to be relevant but of less individual weight than the primary considerations. In so far as they are relevant in this case, they include:
“(a) the extent of disruption to the non-citizen’s family, business and other ties to the Australian community; …
(b) genuine marriage to or de facto or an interdependent relationship with an Australian citizen;
(c) the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some way dependant on the non-citizen for support which cannot be provided elsewhere;
(d) family composition of the non-citizen’s family, both in Australia and overseas;
(e) …
(f) …
(g) …
(h) any evidence of rehabilitation and any recent good conduct;
(i) whether the application is for a temporary visa or permanent visa;
(j) the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances; and
(k) the fact that a non-citizen has been formally advised in the past by an officer of the Department of Immigration and Multicultural Affairs about conduct which brought him or her within … the visa refusal and cancellation provisions at section 501.”[42]
[42] Direction, cl. 2.17
Should Mr Delos Reyes’ visa be cancelled on the basis of his not passing the character test?
I will begin with the seriousness and nature of Mr Delos Reyes’ conduct. It is conduct extending over a ten year period beginning in 1993. The first offence with which he was charged, I find, occurred during his first period of residency in Australia, which ended on 31 July 1991. I have drawn that conclusion from the fact that he appeared in the Sunshine Children’s Court on 22 September 1993 to answer a charge of failing to appear on 26 August 1991 regarding a charge of stealing from a shop. In August 1991, Mr Delos Reyes was 12 years of age. On his returning to Australia in May 1993, he was not charged with any offence for almost a year. Once he was charged in April 1994, there followed a steady flow of charges and convictions. The offences have ranged from those that may be regarded as less serious in some circumstances to those that I must regard as serious on the evidence that I have. In the former category are offences such as the use of indecent language. In the latter category are the drug trafficking offences. As there is no evidence of any circumstances that might mitigate or lessen their seriousness, I must also include offences such as burglary, harassment of a witness, threatening to inflict serious injury, criminal damage and possessing a prohibited weapon without exemption or approval. They are offences identified by the Direction as serious. In the case of harassment of a witness, Mr Delos Reyes has been convicted of only one such offence. Burglary, though, is a different matter as Mr Delos Reyes has been convicted of a number of offences.
In assessing the seriousness and nature of Mr Delos Reyes’ conduct, I need to look not only at the individual offences but also at its overall pattern. When I do that, I find that his conduct over a ten year period has shown a disregard for the laws of Australia, for those who reside in Australia and for himself. That is reflected not only in the nature and regularity of his offending behaviour but also in his reaction to the consequences of his being convicted or the charges proved. Between 1993 and 1997, he was not given any custodial sentence. Many charges were without conviction. In 1995, he was given his first youth supervision order. He was given three that year but breached the second one. These were followed by community based orders in 1996 but he regularly breached those as he did the suspended sentence imposed in July 1997. When he was sentenced to a period of imprisonment, his behaviour was generally satisfactory but he returned two dirty urine samples indicating that he had smoked cannabis.
Mr Delos Reyes had reasons for his offending behaviour. In relation to the dirty urine samples, he said that he had resorted to cannabis after he received the Department’s letter regarding his visa and its possible cancellation. It is understandable that he was extremely anxious and upset after receiving that letter but his resorting to cannabis is simply a reflection in this case of his previous behaviour.
With regard to his previous behaviour, Mr Delos Reyes and his father attribute it to Ms Connor and to her treatment of him and his brother. Whether she did ill treat them by refusing them food is not a matter on which I will make any finding of fact. Ms O’Connor was not present to defend herself. Furthermore, her alleged ill treatment was not a matter on which either Mr Delos Reyes or his father relied in their responses to the Department’s letter of 29 June 2004. Ms Zubiri and Mr McBride made no mention of it. Ms Volny’s psychological report referred to the considerable conflict in the relationship between Mr Reldo Delos Reyes and Ms Connor but reported that the conflict had led to the family’s returning to the Philippines. There is no mention of any alleged ill-treatment by Ms Connor of Mr Delos Reyes and Enripol. There is no mention that Mr Delos Reyes started to live on the streets or away from home while his father lived with Ms Connor and after he married her. Indeed, her report, is consistent with Mr Reldo Delos Reyes’ account given in his letter dated 28 July 2004 to the effect that the boys were happy and attending school. They do diverge, however, about the time at which Mr Delos Reyes’ behaviour deteriorated. Given that Ms Volny was relying on the history father and son had given her, I prefer Mr Reldo Delos Reyes’ view of events in his letter. That is that his sons began to smoke marijuana when Jovan was approximately 16 years of age, that they were aggressive and gave up school and that he could not stop them from using drugs.
Even if Mr Delos Reyes started to offend because he felt the need to get away from Ms Connor’s house, it does not mitigate his conduct. On the family’s return to Australia in May 1993, they lived with Ms Connor for no more than five months. I base this conclusion on Ms Connor’s statutory declaration that they separated on 2 October 1993. It could perhaps explain any offences he committed in that five month period but it is not clear whether he did commit any in that period. I have only the date of his convictions. He was certainly available to appear in the Sunshine Children’s Court on 22 September 1993 for failing to appear on 26 August 1991 to answer a charge of Shopsteal. His next convictions occurred on 20 April 1994, some six months after his father and Ms Connor had separated, and continued with some regularity after that date. Having regard, therefore, to Mr Delos Reyes’ explanation of the reasons for his offending behaviour and to the nature of the offences that he has committed and the time over which they have been committed, I am satisfied that his conduct has been a matter for serious concern.
If he started to commit offences other than those relating to his possession and use of drugs because he was using drugs, this does not mitigate the seriousness of the offences. This is consistent with the statement at cl. 2.6(a) of the Direction directed to trafficking offences. It is also consistent with the views expressed in the criminal courts that drug addiction should not of itself be regarded as a mitigating factor.[43] An exception exists in the case in which the original addiction is not a willed act but that exception is narrowly interpreted and has been taken into account when the addiction has been caused by medical treatment.[44]
[43] see, for example, R v Henry (1999) 46 NSWLR 346 at 382-383 per Spigelman CJ
[44] Redebach v R (1991) 52 A Crim R 95 at 99
I have also taken account of these matters in considering whether there is a high likelihood that Mr Delos Reyes will re-offend. In doing so, I note that I have not been able to distinguish the initial cause of his offending. The initial cause assumes some importance in trying to assess whether he has done anything to address the underlying cause and so anything that will affect the likelihood of his repeating his conduct. In attempting this task, I note that the criminal courts may make different assumptions when they consider this question in assessing the specific deterrent factor in sentencing convicted persons who have a drug addiction. Spigelman CJ expressed the view that:
“… There are a number of aspects of the relationship between drug addiction and crime which indicate that moral choices are made.
First is the original decision to experiment with drugs which, in the usual case, is a completely free choice. The addictive quality of drugs, together with the anti-social behaviour which so commonly results from addiction, is so widely known that persons who choose a course of addiction must be treated as choosing its consequences.”[45]
Simpson J, though, took a different view:
“ It is a mistake, in my opinion, to regard drug addiction as a starting point. It is an end point, or a point on the way to the end, of a process. Where the process begins may vary in individual cases but it does not necessarily begin when a person decides to use a prohibited substance. It probably has its origins well before the date of the first use of drugs. In the worst, or least forgivable, cases it may have its origins in arrogance, in an antipathetical attitude to the laws of society, or in weakness of character. In other cases, I have no doubt, it has its origins in social disadvantage, poverty, emotional, financial, or social deprivation, poor educational achievement, unemployment, and the despair and loss of self-worth that can result from these circumstances or any combination of them. In this Court one sometimes sees cases in which drug taking stems from sexual assault or exploitation, sometimes committed when the person who turns to drugs, and who comes before the Court, is very young, and sometimes the precipitating events have occurred many years before. Drug addiction is not always the disease; it is, as often as not, a symptom of social disease.
Drug addicts do not come to their addiction from a social or environmental vacuum. This Court should not close its eyes to the multifarious circumstances of disadvantage and deprivation that frequently precede and precipitate a descent into illegal drug use. I do not suggest for a moment that all drug users fall into this category. It is because some do and some do not that I believe rigid rules about the impact on sentencing of drug dependency cannot be laid down.
I cannot accept that the blameworthiness of one drugtaker is (even excepting that small number of individuals who begin drug taking with medically prescribed drugs) always to be treated as being at the same level as the blameworthiness of the next. Nor can I accept that the exercise of free choice in the use of drugs is always of equal dimensions. It is not every decision to use drugs that can properly or fairly be characterised as a decision made in the exercise of free choice. The will of an individual can be overborne or undermined, not only by acts of another person, but also by the pressure of circumstances. I do not accept that most drug offenders are truly exercising free will when they choose the degradation, despair, criminality and cycle of imprisonment that can follow the initial use of illegal drugs. The circumstances that propel the offender to the use of drugs are often, if not usually, beyond his or her control. They may or may not be combined with a vulnerable personality or even a weakness of character. Many drug offenders have not had the life experiences or the normal developmental path that permit a conclusion that the decision to take drugs was a decision made in the exercise of a free choice in the sense in which that phrase is ordinarily understood.[46]
[45] R v Henry (1999) 46 NSWLR 346 at 385
[46] R v Henry (1999) 46 NSWLR 346 at 410-411. Similar sentiments have been expressed by Buchanan J with whom Vincent and Eames JJA concurred in R v McKee and Brooks [2003] VSCA 16 at [13]
As I noted earlier, Mr Delos Reyes attributes his offending to the events at Ms Connor’s house but it had started in a small way during his first visit to Australia. I am not satisfied that it played an ongoing part in his continuing behaviour if it played a part at all in his earlier offences. His smoking marijuana might have played a role in his subsequent behaviour in committing crimes to support it and moving to other drugs as well as in the choice of his friends. He was reasonably young when he started and it is difficult to know whether his original decision to experiment with drugs was one that he made freely or whether he felt subject to peer or other pressure. In an earlier time, it could be said that he was of an age at which he was not completely free to make a choice but this is a more knowing and worldly time, even for the young, and it is more difficult to make out that argument. I am unable to make a finding of fact as to how his offending started and whether his addiction or his other type of offending started first. Therefore, I am left to consider the matter of recidivism on the basis of the other material that I do have.
Mr Delos Reyes was, I find, given many opportunities by the Children’s Court to change his behaviour and most of those opportunities were given after he and his father and brother had left Ms Connor’s house and whatever tensions existed in that house. He was given similar opportunities to change his behaviour by adult courts but, again, he has not done so.
Certainly, he has used drugs of various types and some of his offending behaviour may have been to support his habit but I have also had regard to his having shown little recognition that he needs ongoing assistance to assist him to address his behaviour. He has had some drug counselling. His feeling is that his body does not need drugs. I draw from that statement that he does not feel the need for outside assistance. This is despite his having reverted to drug use in 2001 after keeping away from it for part of 2000 and 2001 when he worked as a chef, again returning to it in 2003 when he tried ice offered by a friend and then using in prison.
I accept that Mr Delos Reyes has shown commitment to his girlfriend and she is devoted to him. They both think that moving away from the area in which they live will solve the problems. Whether it will or not is debateable given that Mr Delos Reyes did that when he was a chef and yet could not turn away from his friends when they found him. Mr Delos Reyes thinks that having the responsibility of a wife and child and to his brother will mean that he will not offend. He seems oblivious to the fact that any responsibilities he has for his brother he has had since he was about 17 years of age when Enripol was diagnosed with schizophrenia. His responsibilities have not stopped him from offending in the past.
Mr Reldo Delos Reyes thinks that his son will change for him. On the basis of Mr Reldo Delos Reyes’ own evidence, I am satisfied that his son has taken no notice of his father in the past. In his letter dated 28 July 2004, Mr Reldo Delos Reyes said that he could not stop either of his sons from using drugs. Taking all of these matters into account, I consider that the risk of Mr Delos Reyes’ re-offending is quite high.
Deterrence is the next factor to which I must have regard. The notion of deterrence in the Direction has some similarity to the notion of general deterrence in sentencing. It is a notion that must necessarily be underpinned by a further notion. That is that, qualified only by considerations of the youth of an offender, criminal behaviour is behaviour freely chosen. This is clear from the judgment of Wood CJ at CL in R v Henry when he said:
“ I am not prepared to advocate any departure from the long accepted wisdom that imprisonment does have a personal and general deterrent effect. It is a notion deeply entrenched in the criminal law, and it has the imprimatur of the legislature which as prescribed significant maximum penalties for the offence under consideration, as well as for other offences involving serious criminality.
Moreover, it cannot necessarily be assumed from the fact that increases in sentences have not been accompanied by any noticeable drop in crime rates, that they lack deterrent effect. In the absence of any control, it cannot be known whether crime rates would have been higher had sentences not been increased.
The risk of exposure to undesirable influences within a corrective environment, similarly cannot be used as a justification for abandoning, or even limiting imprisonment, as a general response to criminal conduct. There remains for every offender a choice between reform and recidivism, and the problem is better addressed by the development of adequate programs and rehabilitation options within the prison environment, that it is by a significant change in sentencing policy.”[47]
[47] (1999) 46 NSWLR 346 at 396-397
It is clear from this passage that his Honour recognises that there is no research or empirical data to support the long accepted wisdom of his remarks. Mitchell J reflected similar concerns in the context of sentencing:
“Whatever the judge may say, his remarks may or may not reach that section of the community to which they are directed, depending upon whether those who publish reports of court proceedings regard the remarks as being worthy of reporting, and whether the criminally-minded persons for whom they are intended read or listen to any report which may be made. It is useless to suggest that one of the purposes of a sentence is to deter others from committing a similar crime, if the knowledge of such sentence does not come to those who are likely to commit the crime.”[48]
[48] Mitchell J, The Web of Criminal Law, 1975 Boyer Lectures, ABC, Sydney at 49
I have not been given any evidence or material on which I can conclude in this case that cancelling Mr Delos Reyes’ visa is likely to prevent other people from committing offences similar to those he has committed or, indeed, any sort of offences. As I have said in other cases, deterrence in the context of the character test is always difficult. It is not general deterrence directed to the Australian community at large but deterrence directed to those who are not Australian citizens and whose visa might be cancelled or refused if they were to commit offences. There is no empirical or other evidence that I have been given as to the deterrent effect that requiring a person’s departure from Australia has on other people’s behaviour. There is no “long accepted wisdom” as some courts may find in the context of sentencing a convicted person. I am left, therefore, with very little. It may be that people who know Mr Delos Reyes or his family know of what happens to him but would that deter them from behaviour leading to their committing offences? They might not have engaged in such behaviour in the first place or even thought of it. If they did, they might be Australian citizens in any event. Does the news of what happens to a person travel through the community in ways I am not aware of? I am left in the realm of speculation and so do not make a finding one way or the other regarding deterrence.
That brings me to the expectations of the Australian community. It expects that its members will be able to go about their lawful business without the security of their persons or belongings being intruded upon by others. The Australian community also exhibits understanding. It acknowledges that people do make errors of judgment but its understanding is not limitless. It expects that people will address their behaviour and its causes. It expects that they will be given a chance to do that.
There are no children in this case and so I do not need to consider the third primary consideration.
I accept that Enripol will be devastated if his brother is not able to visit him. The extent to which he has visited him over the years is not clear to me. I was not told that Enripol visited Mr Delos Reyes while he was in prison although I am satisfied that Mr Reldo Delos Reyes was a regular visitor. I accept that he now visits Enripol twice a week but, by the same token, Mr Delos Reyes and his girlfriend are thinking seriously of moving away from him if he is permitted to remain in Australia. The extent to which he will be able to visit and help his brother then is questionable. The extent to which he will be able to do so for other reasons is also questionable. Those other reasons are that he attributed some of his offending behaviour to the pressure of looking after his brother. That occurred when he was a chef in 2001 and 2002.
I accept that Mr Reldo Delos Reyes will be devastated by the loss of his son to the Philippines. He is tired of looking after his sons and wants them to take responsibility for themselves and for his younger son to take responsibility for Enripol. He wants that to happen while all of them live in Australia.
Family friends are also concerned lest the family be broken up. I have had regard to that but I have paid particular regard to the situation of Ms O’Goerk. She is, as I have said, devoted to Mr Delos Reyes. She was deeply distressed at the hearing. She feels that Mr Delos Reyes is her first and only true love. It will be a bitter blow indeed for her were he to leave Australia. At the same time, it cannot be said that they have managed to keep away from trouble while they have been together. Both have committed offences. Ms O’Goerk openly admitted that she had taken amphetamines on two occasions but was anxious to ensure that I understood that her boyfriend had no part in it. I understand that she took them because she was distressed about her situation which seems to her to be hopeless. Even so, it is not a situation that recommends itself as one in which Mr Delos Reyes will be kept away from temptation.
Ms O’Goerk has said that she will travel to the Philippines with him but it is difficult to see how she would survive. There is no evidence of any relative to whom Mr Delos Reyes will be able to turn if he returns to the Philippines. That will be extremely difficult for him and even more difficult for her. She does not speak Tagalog and he speaks very little of it. He will have to support her as well as himself.
I accept that Mr Delos Reyes will be lost if he has to return to the Philippines. He remembers little of the language at the moment. He considers it unlikely that his girlfriend will travel with him. There are no relatives in the Philippines with whom he has close contact and so few people who will be able to assist him. In his years in Australia, he has gained skills that enable him to be engaged as a chef but there is no evidence that he has gained any other skills.
I find that Mr Delos Reyes was not given any warning that his visa would be cancelled if he broke the law. Ideally, those who are given visas to remain in Australia permanently should be given that warning in clear and unmistakeable terms. Whether he would have been deterred in committing offences had he been given such a warning is questionable given his continuing to offend when given sentences in the nature of supervision orders and other non-custodial sentences on many occasions before he was sentenced to a term of imprisonment. Even then it was suspended on the first occasion. Such sentences should be regarded by their recipients as a warning that more restrictive sentences may follow if they continue to offend. Mr Delos Reyes appears not to have heeded that warning. There is no reason to expect that he would have paid any great regard to a warning by the Department.
There are issues in this case that cause me great difficulty. The possibility that Enripol will not have any support from his brother is one of them as is the parting of family members who have had difficulty in forming a cohesive family unit over the years. Another matter that has caused me great concern is Ms O’Goerk whose state of health appeared quite delicate at the hearing. She needs a lot of support and sees Mr Delos Reyes as the source of the support in the future. At the same time, I must have regard to the principle that is common to all cases. That is that the principle behind the character test is, as the Minister has said, “… to protect the community from criminal or other reprehensible conduct …”.[49] As the Full Court of the Federal Court said in Goldie v Minister for Immigration and Multicultural Affairs,[50] deficiencies in Mr Delos Reyes’ conduct must be measured against the level of harm that that would be presented by his remaining in the Australian community on a permanent basis. That, of course, is not to diminish the other matters to which I must have regard. When I have regard to all of those issues, I consider that the risk of Mr Delos Reyes’ re-offending and committing further serious crimes that show disregard for the members of the Australian community and its laws is such that the need to protect that community outweighs the undeniable difficulties that will face Mr Delos Reyes in the Philippines and those of his family and girlfriend in Australia.
[49] Direction, Preamble
[50] (1999) 56 ALD 321; see [60] above
For the reasons I have given, I affirm the decision of the respondent dated 11 April 2005.
I certify that the ninety-four preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: ...............................................................
Nathaniel Wills Associate
Date of Hearing 29 June 2005
Date of Decision 20 July 2005
Counsel for the Applicant Mr G. HughanSolicitor for the Respondent Ms C. Petre
Clayton Utz
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