DNCW and MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2010] AATA 610
•17 August 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 610
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/2170
GENERAL ADMINISTRATIVE DIVISION ) Re DNCW Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date17 August 2010
PlaceMelbourne
Decision The Tribunal sets aside the decision under review and in substitution decides that the Applicant’s visa should not be cancelled.
.
(sgd) John Handley
Senior Member
IMMIGRATION – visa cancellation – Applicant convicted of two counts of attempted incest and one count of rape – substantial criminal record ‑ fails to pass character test –– discretion to cancel ‑ whether cancellation in the national interest – whether Applicant part of Australian community ‑ Direction 21 – balancing of primary and other considerations
Administrative Appeals Tribunal Act 1975 (Cth) s 35
Migration Act 1958 (Cth) s 499(2A), s 501, s 501(2) and s 501(6)(a), s 501(7)(c)Sexual Offenders Registration Act 2004 (Vic)
Ayan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 126 FCR 152
Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313
Nystrom v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 420
REASONS FOR DECISION
17 August 2010 Mr John Handley, Senior Member 1. The Applicant is a citizen of Malta who first entered Australia on 22 May 1981 when he was four years of age with his parents, two brothers and a sister. He was granted a transitional permanent visa in 1994. He is presently 33 years of age. Save for a period of approximately two and a half years when he and his family returned to Malta when he was aged seven, he has lived all of his life in Australia.
2. The Applicant recently completed a term of imprisonment arising out of convictions for offences of attempted incest of his step-daughter and for the rape of his wife. On 24 May 2010 a delegate of the Minister decided to cancel the visa held by the Applicant pursuant to s 501(2) of the Migration Act 1958 (the Act). Specifically, it was decided that the Applicant did not pass the character test under s 501(6)(a) of the Act because he had been sentenced to a term of imprisonment of 12 months or more and therefore had a substantial criminal record (s 501(7)(c) of the Act).
3. It is not in dispute that the Applicant has a substantial criminal record. The issue before the Tribunal is whether to exercise the discretion in s 501(2) of the Act. In deciding whether to cancel a visa on the basis that a person fails to pass the character test, the Tribunal is required to exercise a discretion by regard to the primary and other considerations set out in Direction 41 issued by the Minister pursuant to s 499 of the Act.
4. Having regard to the nature of the offences, the age of the infant and public access to decisions of the Tribunal by conventional reporting methods and by the internet, I decided that it was appropriate to make Orders pursuant to s 35 of the Administrative Appeals Tribunal Act 1975 (AAT Act). Those Orders prohibit publication of the names of the Applicant, the witnesses before the Tribunal and the names of the Applicant’s former partner, step-children and biological child. Disclosure of the identity of those persons is limited to the parties and their representatives in these proceedings, together with officers and staff of the Tribunal, employees of Auscript and officers of defined sections of the Department of Immigration and Citizenship.
BACKGROUND
5. In either 1995 or 1996 when he was 19 years of age, the Applicant commenced a relationship with M, his former partner and the mother of the infant, S, with whom he attempted incest on two occasions. Later when the Applicant learnt that M was pregnant, he moved into a house occupied by her. Their daughter, A, was born on 28 March 1998. In a Statutory Declaration completed by the Applicant and lodged in these proceedings, he recorded that his relationship with M then was pretty good. He said the birth of his daughter A, changed my life. He was working full‑time and he enjoyed his interaction with A. On occasions he was able to finish work early to collect her from kindergarten or school.
6. In 2002, the Applicant separated from M and he moved into accommodation occupied by his mother. During that time he shared responsibility for the care of his daughter and step-daughters. A few months later he and M reunited and he resumed living with her.
7. On two occasions in July 2003, the Applicant attempted incest with S, the eldest of M’s two daughters. S was then aged 12. On 10 December 2004, the Applicant was convicted in the County Court of Victoria on each of two counts of attempted incest. He was sentenced, on each count, to a period of imprisonment of two years and six months with a concurrent period of sentence of one year and nine months.
8. On 24 July 2003, the day after the second attempted incest, the Applicant and M had sexual intercourse. The Applicant said it was consensual. M subsequently complained to the police and alleged that she had been raped by the Applicant. A jury agreed with the version of events described by M and the Applicant was convicted of rape. On appeal to the Court of Appeal in Victoria against the conviction and sentence, the Court upheld the conviction and decided that there was an interconnection between the rape and the two counts of attempted incest. A total effective sentence of seven years and six months was imposed with a non-parole period of five years.
DIRECTION 41
9. The preamble to Direction 41 (paragraph 5) records that the Australian Government’s objective is to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non‑citizens. It also provides that the Government is especially mindful to protect the safety of the community's more vulnerable members including minors …
10. By way of general guidance, when deciding whether to cancel a visa, a decision-maker must consider the nature of any harm that the person concerned may cause to the Australian community and the risk of that harm occurring (paragraph 5.2). However, Direction 41 provides that when exercising the discretionary powers under s 501, a wide range of factors must be considered, including whether the person began living in Australia as a minor, the length of time the person has been ordinarily resident in Australia… (5.2(3)). Paragraph 5.2(4) also provides:
In some circumstances it may be appropriate for the Australian community to accept more risk where the person concerned has in effect become part of the Australian community owing to their having spent their formative years, or a major portion of their life, in Australia.
11. Paragraph 9 of Part B of Direction 41 mandates the primary considerations be taken into account, namely, protection of the Australian community, whether the person was a minor when they began living in Australia, the length of time the person has been ordinarily resident in Australia and any relevant international obligations. Paragraph 9 also provides that other considerations, if relevant, should also be taken into account.
PRIMARY CONSIDERATIONS
Protection of the Australian Community
12. Protection of the Australian community requires the decision-maker to consider the seriousness and nature of the relevant conduct and the risk that the conduct may be repeated.
seriousness and nature of the conduct
13. Sub-paragraph 10.1.1 records that crimes involving violence, especially crimes involving violence against vulnerable persons such as minors, are regarded especially abhorrent to the whole community. For the purposes of the discussion which follows, I am satisfied that the criminal act of attempted incest and rape are crimes of violence. In so far as the criminal act of attempted incest is concerned, I am also satisfied that S was a minor.
14. Clause 10.1.1(2) sets out specific examples of offences and conduct that are considered to be serious, namely:
(i)all offences perpetrated against a child (particularly sexually based offences) (10.1.1(2)(b));
(ii)rape and any other sexually‑based offences (10.1.1(2)(c)); and
(iii)convictions for attempting to commit an offence (10.1.1(2)(i)(i)).
15. The offences of attempted incest are recorded within the sentencing remarks of Judge White in the County Court of Victoria on 10 December 2004 as follows:
2. As to count 1, you asked the victim if you could snuggle with her in bed and you, on being in bed, removed her underwear to one side and attempted to put your penis inside her vagina. The victim told you to get off and you ejaculated on her stomach. She used her underwear to wipe this from her stomach.
3. In relation to count 2, on 23 July 2003 you again entered your victim's bedroom and got into bed with her and stayed there, despite being told to leave. You removed her lower clothing so that she was naked from the waist down and you lay on top of her and attempted to penetrate her vagina, forcing her down and forcing her legs apart. Movement in the bed caused the bedhead to bump against the bedroom wall and the victim's mother and a family friend were seated in the adjacent kitchen and on hearing this noise they went into the bedroom and saw you roll of your victim, who they observed to be naked from the waist down, she being greatly upset and distressed. (G7, p 58)
16. The Applicant agreed, when giving evidence in these proceedings, that the description of the events constituting these offences was accurately recorded by Judge White.
17. The Applicant pleaded guilty to the offences but only after a voir dire and a taped interview of S was replayed to the Court. The Applicant had initially been charged with actual incest.
18. The Court took account of the Applicant's plea of guilty and an indication of remorse by him. It was also noted that his guilty plea relieved S of the trial. However, it was noted that S had previously given evidence at a committal hearing. She lodged a Victim Impact Statement with the Court which gave details of continuing psychological upset, fear and sleep disturbance, poor concentration at school and learning difficulties.
19. The attempted incest offences, by their description alone, are revolting. The Applicant is an adult male who described himself as a father figure to S. Despite her protests, he violated her on two occasions in July 2003. On the second occasion the attempted incest occurred in the bedroom occupied by S, at a time when M was in an adjacent room with a friend. Judge White described the Applicant's conduct in the following terms (G7, p 58 at [4]):
Your conduct was appalling, with consequent psychological and emotional disturbances to both your victim and her mother, the break down of the family and these consequent court proceedings. Your motivation was your own sexual gratification, with absolutely no consideration for the young girl who had placed her trust in you. You callously breached the trust of this young girl who looked to you as a father figure. You also breached the trust of her mother, with whom you had been living, basically, for seven years and with whom you had had a young daughter.
20. Judge White, as he was obliged, recorded that the offences found against the Applicant arising out of the attempted incest convictions were registrable under the Sexual Offenders Registration Act 2004 (Vic).
21. The Applicant raped M on the day after he attempted incest with her daughter. On a number of occasions during the hearing of these proceedings, the Applicant denied that he had raped M. He entered a plea of not guilty in the trial. The jury returned a guilty verdict. He was sentenced to six years imprisonment with a non-parole period of four years and six months. The Applicant appealed against the verdict and sentence. The conviction was not disturbed. The Court of Appeal varied the duration of sentence and the Applicant was required to serve a cumulative sentence of seven years and six months with a non-parole period of five years. In fixing sentence, the Court had regard to the sentence imposed for the offences of attempted incest.
22. Despite the Applicant's continuing protest that he did not commit an act of rape, I am bound, as a matter of law, to accept his convictions and sentence and not impugn those findings (Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313 at [41-43]; and Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 at 244-245) and I so find that the Applicant did rape M. The sentencing remarks of the trial Judge were not in the G-documents and are therefore, not known.
23. M commenced civil proceedings against the Applicant seeking damages for personal injury. Judge Misso in the County Court was also satisfied that M had been raped by the Applicant. His Honour concluded, having observed M to be devastated and inconsolable whilst giving evidence, that the rape of her was the worst violation a woman can experience (Exhibit R1, at [41] and [60])). I too, do not know of any more disgraceful or depraved conduct by a man upon a woman.
24. In concluding this part, the Applicant committed three extreme acts of sexual violation and assault on two female persons, one of whom was a 12 year old minor and over whom he was regarded as a father figure. It would appear from the documents lodged that both persons continue to suffer the effects of his disgraceful conduct. One of the acts of attempted incest and the act of rape both occurred within a 24‑hour period in the same premises.
25. This first part of the first primary consideration weighs heavily against the Applicant in the exercise of the discretion. The offences committed by the Applicant fall squarely within the matters contemplated by Direction 41 under this Part.
26. I will keep in mind the depravity of the Applicant's conduct when ultimately deciding whether, in the exercise of the discretion available to me, whether his visa should be cancelled.
risk of repeated conduct
27. To assess the risk of re-offending, I must have regard to the Applicant’s previous general conduct and his total criminal history (10.1.2(1) of Direction 41).
28. The two incest offences and the rape offence occurred in July 2003. The Applicant has not subsequently offended. He did have a number of prior convictions for theft, unlawful assault, breach of an Intervention Order, burglary, cultivating a narcotic plant, unlawful possession and possession of housebreaking implements. The date of the commission of those offences is not known however the summary of the Applicant's convictions are recorded in the LEAP Report (G3, p 35—40). The Applicant was convicted for some offences in 1996, in 2002 and in 2004. Whilst none of those offences may be excused, it is unlikely that any of them would have given rise to an application under s 501 of the Act.
29. For the purposes of this part, the conduct to which I will refer concerns the three convictions for attempted incest and rape.
30. There is nothing presently indicating that the Applicant has an increased risk of re-offending. There is no recent history of convictions (10.1.2(2)(a)). However, I note the Applicant has been imprisoned from December 2004 and did not commit offences whilst incarcerated.
31. The Applicant was engaged in a number of trade and educational type courses to help him rebuild his life after release from prison. He has also completed self-help programs aimed at self awareness, personal growth and mens’ health which would indicate a willingness to learn and rehabilitate. He has been assessed by the sex offender coordinator within the Victorian Department of Justice as being within a moderate – low risk category (G13, p 160). The Applicant has not yet entered into the sex offender program but he will do so, as a condition of his parole.
32. In evidence, the Applicant said that he would enter into, and willingly participate, in the sex offenders program. He said he did not want to ever be in a position of repeating the offences which have given rise to his sentences. He thought the likelihood of repeating those offences would be highly unlikely. Nonetheless, he would participate in the program to make sure. He said he also wanted to undertake the course in an attempt to eventually restore his relationship with his daughter, A.
33. The report of Mr Healey, a psychologist (Exhibit R2) was submitted to the County Court during the plea hearing in 2004. The report caused Judge White to conclude that it would appear unlikely that you would re-offend in this manner again. Mr Healey also thought that the Applicant was particularly vulnerable at the time he committed the offences because he had previously been diagnosed with depression and a paranoid trend. The Applicant had also ceased taking medication at the time the offences were committed.
34. The Applicant said in evidence that he understood rape to be a very serious, violent crime. He also said what it means is no woman should be raped. That is, forcing self onto a woman when she says no.
35. In the Statement of Facts and Contentions, the Respondent submitted that the absence of remorse by the Applicant concerning the rape of M indicates a lack of self awareness which is necessary to ensure that he does not re-offend. Accordingly, the Respondent submitted a dim view should be cast upon him with respect to his prospects of rehabilitation. The Tribunal was referred to paragraph 86 of the Judgment of the Court of Appeal (G8, p 92), where the Court held that the trial Judge was entitled to express scepticism about the Applicant’s prospects of rehabilitation given the absence of remorse expressed by him during the trial.
36. I am satisfied that the Applicant does understand the gravity and depravity of the offences which gave rise to the convictions for attempted incest. Those incidents appear to be isolated and I expect that by successfully completing the sex offenders program, the risk of re-offending is reduced.
37. The absence of remorse expressed by the Applicant concerning the rape offence concerns me. Despite his continuing protest of innocence, he was found guilty by a jury. His conviction was upheld on appeal and a finding of rape was subsequently made on the civil standard of proof in the proceedings issued against him by M. During the hearing, the Applicant expressed an understanding of the behaviour which would constitute rape. He acknowledged that rape is a very serious violent crime. This does give me some degree of confidence that he is unlikely to commit that offence again. The Applicant is now six years older than the occasion when these offences occurred. I would expect a greater level of maturity and by his imprisonment and these proceedings, he will have no doubt of the consequences of re-offending.
38. I am satisfied that the Applicant's older brother who gave evidence in these proceedings is likely to have a sobering and mature influence (should the Applicant succeed in this application). The Applicant has completed an apprenticeship as a spray painter. In evidence, his brother indicated that he will employ the Applicant in his business as a spray painter. He acknowledged that the offences committed by the Applicant were serious and horrible but said that the Applicant does take advice from him and he is regarded by the Applicant as a dad figure. The positive influence and support of his older brother will further reduce the risk of the Applicant re‑offending.
Whether Applicant was a Minor when he arrived in Australia & Length of time Applicant has been Ordinarily Resident
39. Paragraphs 10.2 and 10.3 of Direction 41 require me to consider whether the Applicant was a minor when he began living in Australia and the duration of his residency in Australia.
40. As recorded earlier, the Applicant was four years of age when he migrated to Australia with his family in May 1981. He commenced primary education in Australia but returned to Malta after four years where he lived with his family for about two and a half years before returning to Australia in 1988. He has not returned to Malta and has lived in Australia continually for the last 22 years. He is presently 34 years of age and lived in Malta for a combined period of six and a half years.
41. His period of residency in Australia has of course given him significant ties to the Australian community (10.3). He barely speaks the Maltese language and on the evidence heard, he has no connection with Malta. He completed three years of secondary education and an apprenticeship as a spray painter in Australia. He has also been self-employed in his own tow truck business and purchased damaged motor cars which he subsequently repaired and sold at a profit.
42. The Applicant was first convicted in 1996, being eight years after he returned to Australia. Before living in Malta for two and a half years he had previously resided in Australia for four years. Accordingly, he had more than 10 years of residence in Australia prior to any criminal activity. He had been in Australia for a combined period of 19 years before the criminal activity of July 2003 which resulted in imprisonment from 2004 until recently, when he entered into immigration detention.
International Obligations ‑ The Best Interests of the Applicant’s Daughter
43. The remaining primary consideration is the best interests of the child.
44. The Applicant is the father of A. M is her mother. She is also the mother of the two step-children, one of whom was the subject of the attempted incest.
45. There was some evidence, although confusing, with respect to attempts by members of the Applicant's family to have access to the children. It would appear that all of those attempts have been unsuccessful. It was learnt that a mediation conference had been convened involving the Applicant's mother, M and the three children but M refused to attend. The Applicant’s mother also gave evidence that she attempted to visit A at school. This attempt was unsuccessful because S discouraged A from speaking with her grandmother and advised the staff that M would not permit it. On the basis that the children do not wish to see the Applicant’s family, it is unlikely that the Applicant will ever have any meaningful or indeed any relationship in the future with the two step-daughters, especially with S. In the absence of a Family Court Order it is also unlikely that the Applicant will have the opportunity to develop a meaningful relationship with A.
46. The Applicant has expressed an intention to have a relationship with A but he has effectively been precluded during the period that he has been incarcerated. When asked during the hearing whether he had applied for access to A, he said he applied for legal aid and was advised that he should complete the sex offenders program which would give him a good chance of supervised access. Whilst in gaol, the Applicant said that he was given advice by an ex-solicitor who also helped him complete paperwork (I assume either for legal aid or an application for access to A). It appears the ex-solicitor was moved to another facility and the Applicant did not complete the paperwork because he said he did not know how.
47. There is no evidence to indicate that the Applicant has made any meaningful attempt to obtain access. Should his liberty be restored and he is permitted to remain in Australia, there is nothing to prevent him from seeking access to A (subject to any restriction placed on him as a registered sex offender). It appears that the Applicant is subject to an Intervention Order previously taken out by M, but it is not known whether the Order restrains the Applicant from approaching or contacting A.
48. The Applicant’s daughter, A, was six years of age when he was imprisoned. She and the Applicant have not had any contact during the period of his incarceration. She is now 12 years of age. It is not known whether she is aware of the reasons her father was imprisoned. However, she resides with M and it is likely that A would have been informed. There is no evidence as to A’s wishes in relation to contact with her father or her feelings towards him.
49. It is of course preferable that children remain with their parents. However, in this case, the Applicant has not had any contact with his daughter for six years. It is unlikely that A will suffer adversely in the immediate future if the Applicant was removed. The Applicant may seek an order for supervised access. However, even if supervised access is ordered, it will not permit the Applicant to undertake a full parental role, at least initially. Access, no matter how limited, will allow the Applicant to remain a figure in his daughter’s life and perhaps, with time, allow her and the Applicant to re-establish a relationship. This cannot occur if his visa is cancelled.
50. Direction 41 provides that separation may serve the child’s best interests if there is evidence of abuse or neglect, or physical or emotional trauma arising from the Applicant’s conduct (10.4.1(4)). There is no evidence that A was abused, neglected or suffered physical or emotional trauma from the Applicant’s conduct. It is not difficult to believe that the trauma and distress experienced by M and S will have had some impact on A. However, in the absence of evidence, I am not satisfied that it would be in A’s best interests to remain separated from the Applicant.
51. On balance, I am not satisfied that it would be in A’s best interest for the Applicant to be removed from Australia. If he is permitted to stay, there is a possibility that at some future time, her relationship with the Applicant will be restored. If the Applicant is deported of course, she may visit him in Malta but the opportunity to have the relationship restored would effectively be denied because of his absence from Australia
52. I am satisfied that it is in the best interests of A for the Applicant to be permitted to remain in Australia because of the hope that she and her father may have a relationship into the future. I acknowledge that considerable effort and work will be needed on the part of the Applicant to establish and restore the relationship. The chance to establish a healthy relationship with her father is in the best interests of the child and should that occur, A’s interests will be better served by him being permitted to remain here.
OTHER CONSIDERATIONS
53. In deciding whether to cancel a visa, paragraph 11 of Direction 41 sets out a number of matters which must be considered (if relevant). The other considerations are to be given less weight than the primary considerations.
Family Ties
54. The Applicant's mother, brothers and sister and a number of nephews and nieces all reside in Australia. Most of them are Australian citizens. He does not know whether he has any family in Malta, although it would appear from the evidence given by his mother that there are some distant relatives. His brothers spoke in supportive terms and indicated a willingness to support him and be his mentor. One indicated a willingness to employ him.
55. The Applicant's mother would be devastated by him being returned to Malta. She is 62 years of age and suffers depression, diabetes and osteoarthritis. She referred to the support the Applicant gave her prior to his imprisonment and her expectation that it would resume if he is released into the Australian community. Whilst she indicated that she could travel to Malta to visit him, she indicated that her age and poor health would prohibit travelling on more than one occasion.
56. In addition to his immediate family in Australia, the Applicant’s father died and is buried here. In his statutory declaration, the Applicant said that he previously visited his father’s grave on Father’s Day, at Christmas and at other times throughout the year. This was corroborated by his mother during evidence.
Health
57. The Applicant suffered from emotional disturbances early in his life as reported by Mr Healey (Exhibit R2, p 7). He was diagnosed with depression after his father’s death in 1998 and had been taking prescribed anti-depressant medication subsequently. Personality testing completed by Mr Healey supported the diagnosis of depression with a paranoid trend. The Applicant has also attempted suicide (Exhibit A1 at [48-51] and Exhibit R2, p3). The Applicant was under the supervision of his general practitioner.
58. In his Statutory Declaration, the Applicant indicated the Grow Program that he completed in prison has helped him to manage his emotions and control difficult situations. While the techniques learnt in the program may assist him in Australia, I am not convinced that the techniques would assist him in Malta. In his report, Mr Healey stated:
…imprisonment would be very distressing for him in view of his emotional vulnerability and ongoing depression – indeed… such an experience might exacerbate his suicidal tendencies, currently ‘held at bay’ by prescribed medication and the supports he has within the community. (Exhibit R2, p 8)
I accept that Dr Healey’s conclusions were aimed at the affect of imprisonment on the Applicant. However, he concludes that the Applicant’s suicidal tendencies are held at bay by medication. The evidence presented during the hearing suggested that work opportunities in Malta are scarce. If the Applicant returns to Malta and is unable to find employment, he is unlikely to have access to the medication he needs to manage his depression.
59. Mr Healey also indicated that the support in the community has also allowed the Applicant to manage his condition. The evidence, particularly that of the Applicant’s mother, leads me to conclude that the Applicant will not have the benefit of such support in Malta. In the absence of medication, the support of his family and the wider community, I am satisfied that his removal to Malta is likely to have a negative impact on his emotional and psychological health.
Links to Malta
60. It would appear from the evidence of the Applicant's mother that her relationship with distant relatives in Malta is at best poor or at worst strained. She recalled the circumstances of learning of the death of her father by relatives in Malta notifying other relatives in Australia. That is, she learnt from the Australian relatives of her father's death. Whilst she acknowledged that she could contact distant relatives to seek their assistance in supporting the Applicant should he be returned to Malta, she said that it has been 15 years since she had contact with those persons. She did not know where to start to contact them, and she would not have the guts to tell relatives of what he did because the reaction would be you ring us and tell us this after many years.
61. The Applicant's mother said that she feared that her son would not cope in Malta and said that he will become crazy. He already takes tablets. (A reference to the Applicant suffering depression and having been prescribed anti-depressant medication). Accordingly, I am satisfied that the overwhelming nature of the Applicant's family connection to Australia compared to the virtual absence of any connection with family in Malta satisfies me that this consideration should be given some weight.
Hardship
62. Should the Applicant be returned to Malta I am satisfied that he would suffer considerable hardship.
63. In addition to the absence of knowledge or whereabouts of any distant relative who might support him (and that would have to be regarded as speculative), he does not know any other persons in Malta. His mother said in evidence, he would not qualify for any social security type payment because he has not ever been employed in Malta. He barely speaks the language, is poorly educated and has limited work skills.
64. Having regard to the evidence of the Applicant’s mother, I would also expect that the Applicant would not have readily available access to medical or like treatment, including prescribed medication, as is available in Australia.
CONCLUSION
65. The Applicant has lived for 27 of his 33 years in Australia. All of his immediate and extended family live in Australia. His mother and brothers who gave evidence in the proceedings indicated their willingness to support and mentor him. One of his brothers has offered him employment which would act as a degree of supervision, in addition to providing economic security.
66. The Applicant has been punished for his crimes and has been imprisoned for a lengthy period. He has been released and will be subject to conditions of parole. Should he breach the trust implicit by parole, especially because of the obligation to participate in the sex offenders program, it is likely that he would be returned to prison. In any future review of his status as a visa holder, he may not be regarded by the Minister as a person worthy of remaining in Australia.
67. Direction 41 recognises the relevance of having lived in Australia for many years when deciding whether a visa held by a person should be cancelled by reason of criminal activity (paragraph 5.2(4)). That consideration is especially relevant in this case because the Applicant arrived here at the age of four and as he indicated in evidence, he has no memory of Malta.
68. The Applicant is virtually an Australian person. He supports an Australian Rules football team. He also enjoys tennis, volleyball, badminton and soccer. He enjoys motorbike and motor car racing and his hero was Peter Brock. He is familiar with Australian culture and the English language. Should he return to Malta, he does not have people who would support him or who could assist him in locating employment or accommodation. He probably would not be able to communicate with them. Assuming that they could be located, it is unlikely that any family in Malta would support him because he would be regarded as a stranger and those persons would more than likely be offended by the circumstances which would have given rise to him being deported.
69. Direction 41 and s 501 of the Act is not intended as punishment. Having completed his sentence, he has now been deemed by relevant authorities as worthy of release on parole.
70. Direction 41 has a number of objectives, principally, to regulate in the national interests, the presence of non-citizens in order to protect Australian persons from unacceptable risks of harm and to maintain the protection and safety of vulnerable members, including minors (5.1(1)‑(3)).
71. The Applicant is a long term resident of Australia who is regarded by prison authorities in Victoria as worthy of release on parole. He now has the opportunity to restore credibility within his own family and the Australian community. He has the opportunity to engage in employment and achieve economic security and independence from the Australian welfare system.
72. Of course the offences committed by the Applicant are repulsive and that is reflected in the term of imprisonment which was imposed. The Applicant will remain forever a registered sex offender. The opportunity to seek employment other than by his brother would present significant difficulty, especially if a police check is undertaken. But at least he has the opportunity for employment which would appear unlikely in Malta, being a country with which he has no real connection, familiarity or knowledge.
73. On balance, I am satisfied that the Applicant has virtually been absorbed as a member of the Australian community. Removing him would impose hardship no less than in the context of employment, culture, language, economic security and isolation from his family.
74. The Federal Court has recognised on a number of occasions that considerable attention should be given to long term Australian residents, despite the seriousness of their crimes, when considering cancellation of a visa (Nystrom v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 420; Ayan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 126 FCR 152). The Applicant is an alien by the barest of threads (Nystrom at [1]). Cancellation of the Applicant’s visa would permanently banish him from Australia. It would amount to a form of punishment as he would be exported to a place where he has no relevant ties (Nystrom at [29]).
75. Members of the Australian community might be tempted to banish the Applicant to his place of birth having regard to the crimes that he committed (including the offences for which non-custodial penalties were imposed – refer paragraph 28 earlier). But the process of exclusion from the Australian community is regulated by s 501 of the Act and Direction 41. Much more is now known about the Applicant. I had the opportunity to hear the Applicant in evidence and read his statement. I also observed him and heard from his mother and his brothers. The Minister’s delegate did not have that advantage. But for the first primary consideration, all the remaining considerations, both primary and other, satisfy me on balance, that the discretion to cancel the Applicant’s visa should not be exercised.
76. The Tribunal sets aside the reviewable decision and in substitution decides that the Applicant’s visa should not be cancelled.
I certify that the seventy-six [76] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr John Handley, Senior Member
Signed: Olympia Sarrinikolaou
Legal Assistant
Date of Hearing 5 August 2010
Date of Decision 17 August 2010
Counsel for the Applicant Mr B GardinerSolicitor for the Applicant Mr P Jamieson, Refugee and Immigration Legal Centre
Solicitor for the Respondent Mr W Sharpe, Clayton Utz
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