Doherty and Minister for Immigration and Multicultural Affairs

[2000] AATA 700

DECISION AND REASONS FOR DECISION [2000] AATA 700

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2000/778

GENERAL  ADMINISTRATIVE  DIVISION     )          
           Re      David Doherty      
  Applicant
           And    Minister for Immigration and Multicultural Affairs
  Respondent

DECISION

Tribunal       Deputy President B.M. Forrest     

Date16 August 2000

PlaceMelbourne

Decision      The decision under review is set aside and the matter is remitted to the Minister with a direction that the visa the subject of the application for review should not be cancelled under s. 501 of the Migration Act 1958.          
  ........(Sgd. B.M. Forrest)...........
  Deputy President
DOHERTY and MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V2000/778

Deputy President B.M. Forrest

MELBOURNE on WEDNESDAY, 16 AUGUST 2000

EX TEMPORE REASONS FOR DECISION
Mr Doherty – On 15 April 1999, you were sentenced in the Supreme Court to five years imprisonment with a two year minimum term before being eligible for parole, for the manslaughter of Fay Majorie Battisson on 31 July 1995.  You pleaded guilty.  You had been earlier tried for her murder in which the jury failed to agree upon a verdict.
On 26 June 2000, a delegate of the Minister for Immigration and Multicultural Affairs cancelled your permanent residence visa pursuant to s. 501(2) of the Migration Act 1958 ("the Act").  This provision provides that the Minister may cancel a visa if the Minister reasonably suspects that a person does not pass the character test and the person does not satisfy the Minister that he or she passes the character test. 
In cancelling your visa the delegate relied on s. 501(6)(a) of the Act which provides that a person who has a substantial criminal record does not pass the character test. A "substantial criminal record" is defined in s. 501(7)(c) as a sentence to a term of imprisonment of twelve months or more. You have a "substantial criminal record" as defined in s. 501(7)(c) of the Act. Your sentence satisfies the definition of a "substantial criminal record": It follows that you do not pass the character test: s. 501(6)(a).
There remains the question of whether, despite failing the character test, the discretion in s. 501(2) should be exercised in your favour. For the purpose of considering a decision to cancel a visa under s. 501 the Minister has issued Direction No. 17 dated 16 June 1999 ("the Direction") which has the force of s. 499 of the Act. In Part 2 the Direction deals with the exercise of the discretion. The Direction lists three "primary" considerations and a number of "other" considerations to which a decision maker must have regard. In your case the relevant primary considerations are firstly the protection of the Australian community and secondly the expectations of the Australian community. No individual consideration can be more important than a primary consideration, but a primary consideration cannot be conclusive in itself in deciding whether to exercise the discretion to cancel a visa. This requires a balancing exercise having due regard to the primary considerations but also taking into account all relevant considerations.
You are a citizen of the United Kingdom, having been born in Northern Ireland on 1 February 1949.  You are a qualified fitter and turner and worked in that trade in Europe before migrating to Australia on 14 May 1973 with your wife who you had married a few weeks earlier.  You decided to migrate to Australia to avoid "the troubles" in Northern Ireland.  You have lived in Australia since.  Your marriage broke up after your wife became involved in a charismatic religious movement of which you wanted no part and in 1986 you divorced.  In 1987 she returned to Northern Ireland with the three children of the marriage, two daughters and a son.  You remained in Australia.  You have had no contact with your son for many years and your daughters for about three years.  Your children appear to have little interest in re-establishing contact with you.  Your last letter to one of your daughters two years ago was not answered.
The circumstances in which Mrs Battisson died, as appears from the transcript of the Supreme Court proceedings, were quite bizarre. You met her in 1990.  Both of you were divorced and in May 1993 you moved into her house in Frankston.  Shortly thereafter you took her on a one month holiday to Europe.  In June 1994 you became engaged to her and planned to marry in September 1995.  On 30 July 1995 you arrived home in the early evening after consuming three or four pots of beer at a hotel.  Mrs Battisson arrived home about thirty minutes later.  She did not speak to you and you did not speak to her, knowing from experience that it was better to leave her alone, if she was quiet for fear of a "blow up".  You spent the evening watching television and consuming two bottles of beer and a bottle of wine.  Sometime after midnight Mrs Battisson went outside as she always did when wishing to smoke.  However as she did not turn on the porch light, which was unusual, you went outside and observed her holding a knife in her left hand and aimed at her throat.  Believing she was suicidal you called out "Don't be bloody stupid" and lunged for the knife.  Your version of events to the jury was that in the ensuing struggle for control of the knife Mrs Battisson suddenly fell down.  You believed you saw a spray of blood from the left side of the neck.  You ran inside washed your hands and called the police and an ambulance.  The fatal wound was a two centimetre stab wound to the neck severing 90 per cent of the external carotid artery.
According to police when they arrived you were in a state of shock.  Your account was given credence by the evidence of Mrs Battisson's former husband who told the Court that when his wife was upset or angry she would on occasions hold a knife to various parts of her body including her neck.  She had talked of committing suicide about ten times a year. 
You knew nothing of her prior history in this regard.  On an earlier date, 20 July 1995, Mrs Battisson had attempted suicide when you discovered her in the garage with the engine running. 
Your account of events of the fatal night was not inconsistent with the medical evidence and you were not charged with any offence.  A coronial inquest returned an open finding.
Some thirty-one months later, on 15 March 1998, you went to the Lakes Entrance Police Station and stated you wished to confess to the murder of Mrs Battisson.  The police officer described you as being in a state of shock.  When reinterviewed your version of events was virtually identical except that you told police on this occasion that you became angry at Mrs Battisson struggling and thought, "If you wanna die, then die" and instead of stopping her you made a single downward stab with the knife.
The interview contains references in which you speak of your breakdown and depression and psychiatric treatment.  Prior to attending Lakes Entrance Police Station, you had purchased a bottle of weed killer for the purpose of taking your own life but were unable to go through with the act.  In your sworn evidence before the Supreme Court you reverted to your earlier account of an accidental death.  The jury could not agree upon your culpability.  Before a decision was made that you be retried, you agreed on legal advice, to plead guilty to manslaughter.
In sentencing you Justice Coldrey said:

"On the most favourable version of the facts, you initially attempted to prevent what you perceived as a suicide attempt by Mrs Battisson.  A struggle ensued, in the course of which you were affected by the emotions of anger frustration or exasperation (either singly or in combination) at the actions of the deceased.  In this emotional state you applied force to the deceased's hands which were holding the knife with the sole intention of assaulting her with it.  That force, in combination with the force exerted by the deceased who had been pulling the knife towards her own neck, caused the knife to enter the deceased's neck with fatal consequences.  Your attitude and judgment were, to some extent, affected by the two bottles of beer and the bottle of wine you had consumed that evening.  It is on this basis that I must sentence you.
…Your case is a very troubling one and, although I cannot look behind your plea and the factual matters inherent in it, I do take into account the very unusual circumstances giving rise to this offence, the fact that the knife which caused the fatal wound was not produced by you, and the spontaneous and wholly unpremeditated nature of the offence."

Clearly the loss of human life by manslaughter is a very serious crime and I take this into account including the impact Mrs Battisson's death has had on her daughter and wider family.  The sentencing judge described the case "a very troubling one" and I also take into account the circumstances as outlined in short above, in which the offence was committed.
In assessing the level of risk to the community by your continued stay in Australia, I am also required by the Direction to consider the likelihood that your conduct may be repeated.  Given the seriousness of the offence only a very low risk of recidivism is acceptable to the community.  You have no other convictions.  Your behaviour in prison was good and you served your time in prison usefully by completing courses in industrial cleaning, anger management and drug and alcohol rehabilitation.
Dr Lester Walton, psychiatrist, who examined you in October 1998 was of the view, in a report dated 5 November 1998, that the clinically significant depressive disorder you developed in the aftermath of the death of Mrs Battisson is consistent with remorse.  Dr Walton thought your mental disturbance arose against a background of alcohol abuse.  In this regard your rehabilitation has presumably been assisted by not having the opportunity to abuse alcohol while in custody.  You had no difficulty in adjusting to prison life.  Justice Coldrey accepted you were extremely remorseful and the evidence before me does not suggest anything to the contrary.
Dr Keith Adey, psychiatrist, to whom you were referred by your general practitioner and who treated you with medication prior to you attending the Lakes Entrance Police Station, was of the view, in a report to the referring doctor in January 1998 that you had grieved for the loss of your fiancee and were over the depressive illness.
You are positive about your prospects of re-employment and I think your confidence in that regard is not misplaced.  You have a good employment record throughout your years in Australia predominantly as a process operator.  Having listened to your evidence I am satisfied that the risk of your reoffending is very low. 
In the circumstances of your offending, the general deterrence factor does not assume any weight and although you have been convicted of a very serious crime I do not think that the Australian community, represented by the informed bystander, if appraised of the circumstances of the offence would necessarily consider it appropriate that you be removed, especially when you are not in my opinion an unacceptable risk of reoffending.
The other considerations to which I shall refer are essentially hardship considerations.  The direction requires that I give these matters less weight than the primary considerations.
Your family ties are in Ireland.  Your parents lived in Australia for thirteen years until three years ago when they returned to Ireland.  Your mother suffers from Alzheimer's disease and your father is her carer.  You are an only child and have close ties with your parents who assisted with legal expenses at your trial.  Any support they may now give is limited to emotional support.
You are estranged from your children who are now all adult.  You do not have business ties in Australia but, having lived and worked in Australia for twenty-two years at the time of the offence, you are well established here.  Your friends are here and you have accommodation available to you with a long time friend.  Apart from your parents you have effectively cut your ties with Ireland, having made a considered decision to migrate to Australia a long time ago.  You had intended marrying Mrs Battisson and continuing to live in Australia.  Her death has not diminished your wish to remain as part of the Australian community.
In my opinion the weight of the competing considerations falls on the side of the discretion being exercised in favour of you being permitted to remain in Australia.  The seriousness of the offence is outweighed by the countervailing considerations namely, the minimal risk of recidivism, the expectations of the community given the surrounding circumstances of the offence and to a lesser extent factors personal to you, all of which indicate to me that your continued presence is not a threat to the Australian community and your prospects of continuing to make a contribution to the Australian community are good.
For these reasons the decision under review is set aside and the matter is remitted to the respondent with a direction that the visa the subject of the application for review should not be cancelled under s. 501 of the Act.