Driver and Minister for Immigration and Multicultural and Indigen Ous Affairs
[2004] AATA 43
•21 January 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 43
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2003/595
GENERAL ADMINISTRATIVE DIVISION ) Re SIMON PETER DRIVER Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date21 January 2004
PlaceAdelaide
Decision The decision under review is set aside, and the matter is remitted to the respondent for reconsideration with the direction that the discretion under s 501(2) of the Migration Act 1958 not to cancel the applicant’s visa be exercised in favour of the applicant, but the applicant is to be warned that if he is convicted of a further offence, a fresh assessment will be made with a view to considering cancelling his visa. D.G. Jarvis
(Signed)
Deputy President
CATCHWORDS
Immigration – transitional (permanent) class BF visa – cancellation of visa – discretion not to cancel visa where applicant fails character test – substantial criminal record – personality disorder and gambling addiction – opportunity to undertake therapy – Ministerial Direction No. 21 - primary and other considerations – unfettered discretion of AAT – meaning of “expectations of the Australian community” - decision of respondent set aside
Migration Act 1958 s501(2)
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Jahnke v Minister for Immigration and Multicultural Affairs (2001) FCR 268
Turini v Minister for Immigration and Multicultural Affairs [2001] FCA 822
Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326
REASONS FOR DECISION
21 January 2004 D.G. Jarvis (Deputy President) Introduction
1. A delegate of the respondent, having decided on 28 October 2003 to cancel the applicant’s Transitional (Permanent) Class BF visa on the grounds that the applicant did not pass the character test under s 501 of the Migration Act 1958 (the “Act”), refused to exercise the discretion pursuant to s 501(2) of the Act not to cancel the applicant’s visa. The applicant has applied to this Tribunal for review of that decision.
2. The applicant was represented by his solicitor, Ms Jane Nunan. The respondent was represented by Ms Elizabeth Reed of the Australian Government Solicitor’s Office. The Tribunal received in evidence the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the “T documents”, exhibit A1). Other documents were also tendered and will be referred to as appropriate in these reasons. The applicant gave evidence, and also called his father, Joseph Driver and Julie Telfer, a Community Corrections Officer from the Department for Correctional Services, to give evidence. The respondent called Kenneth Peter O’Brien, a forensic psychiatrist, Richard John Balfour, a registered psychologist and Juan Schoeman, the branch manager of the applicant’s previous employer. The Tribunal called David Bartlett, the operations manager of the applicant’s former employer.
Issues for the Tribunal
3. The applicant conceded that he did not pass the character test under s 501 of the Act. The only issue for the Tribunal was whether the discretion not to cancel the applicant’s visa should be exercised in the circumstances of this case. I have decided for the reasons referred to below that the discretion should be exercised in favour of the applicant.
Background
4. The following background facts were not in dispute. The applicant was born on 15 October 1974 in Dublin, Ireland, and is 29 years of age. The applicant’s parents migrated to Australia, arriving on 30 November 1988 with the applicant, who was then 14, and his older sister Claire and his younger sister Denise. The applicant has a substantial criminal record which is set out at pages 21 to 38 of the T documents. He has a very large number of previous convictions, mostly for breaking and entering, larceny and breach of bond. On many occasions he was sentenced to varying terms of imprisonment of up to 30 months. Often these sentences were suspended, but the applicant offended again and thereby breached his bonds.
5. On 19 September 2001, the Department of Immigration and Multicultural Affairs (“DIMA”) notified the applicant that his visa may be liable for cancellation under s 501 of the Act on character grounds (T2.3). After considering comments from the applicant, the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”) notified the applicant by letter dated 2 January 2002 that he had not satisfied the Minister that he passed the character test, but that the Minister had decided not to exercise his discretion under s 501(2) of the Act to cancel the visa, and instead to warn the applicant that a fresh assessment would be made with a view to cancelling his visa if he was convicted of any further offences (T1). The applicant acknowledged receipt of the notice and that he fully understood the contents of the notice on 9 January 2002.
6. Notwithstanding the warning issued by the Department, whilst he was on parole from a sentence imposed on 22 May 2000, the applicant committed a further offence on 4 March 2002, namely non-aggravated serious criminal trespass (place of residence). He was sentenced to 19 months and two weeks imprisonment, but this was suspended with a $50 two year good behaviour bond (T5.12).
7. On 26 May 2003 DIMIA issued the applicant with a notice of intention to cancel his visa pursuant to s 501(2) of the Act (T5.11, page 142). The applicant provided DIMIA with a letter containing submissions in response to this notice (T5.10, pages 139–141).
8. A delegate of the respondent decided on 28 October 2003 that there were grounds to cancel the applicant’s visa pursuant to s 501(2) of the Act (T5.3, pages 108 to 124) and the applicant was provided with a notice of visa cancellation on 31 October 2003 (T5, page 99). The applicant has been held in detention since then.
Legislation
9. Section 501(6)(a) of the Act provides in effect that a person does not pass the character test if the person has a substantial criminal record, and under s 501(7), this is the case where (relevantly) a person has been sentenced to a term of imprisonment of 12 months or more.
10. Section 501(2) provides as follows:
“(2) 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.”
Direction No. 21 Issued by the Minister under s 499 of the Act
11. The Minister for Immigration and Multicultural and Indigenous Affairs has issued a Direction, being Ministerial Direction No. 21, pursuant to s 499 of the Act for the guidance of decision-makers in making decisions to refuse or cancel a visa under s 501. By virtue of s 499(2A) decision-makers must comply with the Direction. Under the Direction, decision-makers must have due regard to the importance placed by the Government on three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations (paragraph 2.2 of the Direction). I will refer below to these considerations.
Evidence and Findings of Fact
12. I set out my findings of fact, which are based partly on the witness statements lodged with the Tribunal, partly on oral evidence given by the witnesses who gave evidence and partly on the documentary material tendered during the hearing. Except where I specifically comment otherwise, I accept the evidence of the witnesses who appeared before the Tribunal. I mention at the outset that there were discrepancies in the evidence before me as to whether it is likely that the applicant will re-offend in the future. This is a most important issue, and I will refer to this evidence in detail below.
Applicant’s Evidence
13. The applicant gave evidence that he went to primary school in Ireland when he was about five years old. He was told that when he was six, he started lying and stealing at home, and that this extended to truancy, fighting, disobedience, vandalism and a number of larceny charges. He could not remember much about those events and could not remember why he acted in that way. He remembers that his parents took him to a number of doctors or other specialists.
14. The family arrived in Australia on 30 November 1988 when the applicant was 14. He had wanted to stay in Ireland but had no say in his parents’ decision to come to Australia. When he first came to Australia the boys at his first school, Blackfriar’s College, ridiculed him because of his Irish descent and accent. He hated it at that school, and after more than a year he was taken to another school, Croydon High School. He misbehaved there and was expelled after about six months, and then went to the Parkes High School for about a year. He thinks he went to other schools but cannot remember the details and at about the age of 16 he left school and left home.
15. He then lived on the streets for a while and got into trouble with the law and was imprisoned. The Department of Community Welfare put him into a foster home but after about six months he returned to his parents’ home.
16. He subsequently started gambling, and quickly became addicted to it. After that, he committed offences which were mostly for breaking and entering, and he stole cash or goods which he could sell to obtain money for his gambling. His only explanation for offending after the age of 18 is that he stole to obtain money for his gambling habit. He can give no explanation for offending before he started gambling.
17. The applicant has lived with his parents since he became addicted to gambling, except for a time when he was sleeping in parks, and except for a period of about three weeks when he visited Ireland with his parents some years ago.
18. He has very little contact with his older sister, and has had no contact with his younger sister for about five or six years. His older sister lives in Melbourne and his younger sister now lives in Adelaide, after having lived in Ireland for some time. The applicant had a girlfriend when he was 17 or 18, but has never had any committed relationship. He has developed a friendship with his parole officer, Julie Telfer who has acted as his parole officer for about the last ten years. He loves his parents and his dog. He has no other outside friends and is a loner.
19. The first regular employment obtained by the applicant after he left school was work at a steel company as a storeman, which he obtained in March 2003. Prior to that he had done voluntary work for Community Aid Abroad and at the Hillcrest Hospital. He had also undertaken various courses, including a horticultural course, a butchery course, two COPE courses and a stores and warehousing course. These courses were for varying durations. He was encouraged to undertake the COPE courses by Ms Telfer. He obtained a catalogue from COPE, selected the courses and enrolled and paid for the courses himself. The principal COPE course was apparently structured to improve the self-esteem of the participants. The applicant did not complete all of the courses he started, sometimes because they were interrupted by periods when he was in prison. The last course he undertook entailed canvassing for employment; he did this and obtained an interview with the steel company and was subsequently employed by it. He then commenced a two-year apprenticeship with that company..
20. The applicant liked working at the steel company. He found the people there helpful and cooperative and found that it was a very organised company. He drove a forklift truck, cut steel and served customers. He took money, credit cards and cheques. His take-home pay was about $420 per week. He paid his mother board of $100 per week and she would give him $40 and then keep the rest in a bank account in her name. If the applicant wanted any of his money he would have to ask his mother to take it out of this savings account.
21. The applicant has never rented a house. He has never managed his own money apart from small amounts. He has been prescribed medication, namely an anti-depressant drug called Zoloft, but his mother makes him take it. He does not himself feel the need to take it and if he was on his own, would not take it. He does his own ironing, but his mother does all the cooking and washing. He can do basic cooking such as cooking meat on a barbeque.
22. He thinks his offending is getting less. In his written statement he said he really does not know why he commits offences; after he commits the offences he feels awful and regrets what he has done, but at the time he just does not think about the consequences.
23. The applicant said he wants to stay in Australia. He loves his parents and their help and support is vital to him. He thinks he would be better off in Australia than in Ireland. He is concerned that there is more unemployment in Ireland than in Australia.
24. He received therapy for his gambling addiction from one Barry Tolchard at the Flinders Medical Centre for about 18 months between 1996 and 1998. This assisted him. This therapy was terminated when Mr Tolchard returned to the United Kingdom. Late in 2002 he was referred to Dr Kenneth O’Brien of James Nash House. Dr O’Brien saw him on three occasions and then referred him to Mr Balfour, a registered psychologist who specialises in treating gambling addiction. He only saw Mr Balfour on one occasion and cancelled a follow up appointment, apparently because it conflicted with his work. In 2003, until he was detained following the cancellation of his visa, he was going to Gamblers Anonymous on Saturday mornings.
25. The applicant admitted that he continued to gamble after he obtained his job with the steel company. He went to the Cavan Hotel and played poker machines there. There were discrepancies in his evidence as to the frequency of his gambling, and his evidence is unreliable on this issue. He first said that he went to the pokies a couple of times after he started work, and took money out of his account for a few weeks using his key card to access his account, but after that he gave his key card to his mother. He also said he had about four visits to the Cavan Hotel and when he had his key card he went to the hotel about once a month. He said that was much less than during the previous 10 years because he was working and was much more occupied and did not think about the pokies as much. He said the last time he went to the Cavan Hotel was in August or September last year.
26. The applicant said that if he was forced to leave Australia he would return to Ireland. He has aunts, uncles and cousins there. He has not had any contact with any of them except when he went back to Ireland for a holiday for about three weeks some years ago. One of his aunts has agreed to put him up until he got a job in Ireland. He said he would try to get work as soon as possible and then get his own place, but he did not know how easy it would be to find work. He said he does not know anything about the social security system or health system in Ireland, but thinks that if he goes back to Ireland he “will survive okay”.. Although he has never rented accommodation, he thinks he could do it as long as he was working and earning enough to cover all of the expenses.
Evidence of Applicant’s Parents
27. The Tribunal received a joint statement from the applicant’s parents, Joseph and Ann Driver (exhibit A3). Mrs Ann Driver was in Ireland and arrangements had been made for her to give evidence by telephone, but it was later found that she was in transit from Ireland to Adelaide at the time when she was to give evidence. However, the applicant’s father gave evidence and confirmed the contents of the joint witness statement.
28. It appears from the joint witness statement that the applicant was a premature baby and there were concerns during his first days about his breathing, and until he was eight months old he suffered severe colic and never established a good sleep pattern. The applicant was a very bright little boy who could read before he went to school. He was very outgoing but seemed to be more interested in talking to adults than playing with other children. Within months his teacher informed his parents that he was disruptive in class. Problems continued when he was at school. The parents’ GP gave them a referral to a psychologist, but visits to two different psychologists were ineffectual. The parents discovered that he was stealing money between the ages of six and seven. The ongoing difficulties affected the whole family, and particularly the applicant’s sisters.
29. After the family arrived in Australia and within a few days of the applicant enrolling at his first school here, he was subjected to a racist comment by a teacher and was ridiculed by students due to his accent. After a time he played truant. He experienced similar difficulties at other schools, and spent less time at school and more time on the streets and often slept in parks overnight.
30. According to his parents, the applicant made great progress with the help of Barry Tolchard and the continual support of his parole officer. His parents also confirmed that his self esteem improved after he obtained his first permanent job in March last year. In addition, taking his anti-depressant medication appeared to be helping him. They said that the past year had been a most positive year for the applicant.
31. Mr and Mrs Driver most definitely wish to remain in Australia. They are aged 60 and 55 respectively. Their home is here, they both have full-time employment in Adelaide, and their two daughters live in Australia. They regard it as vital to the applicant’s recovery that he should remain in Australia, to have their ongoing support and to continue to have access to the professional help which has benefited him so much to date. They fear that if the applicant is deported, he will commit suicide, as he has threatened suicide on two occasions, most recently in a letter to his parents dated 7 December 2003. A further concern is that if he were deported, it is doubtful that he would continue his medication and he certainly would not be able to manage money. They comment that their son is so ashamed of his past, and only confides in them and his parole officer. There is no family member able or willing to take on the role of carer. They have cared for and supported the applicant all his life. They say that he still wants their support and they are willing to continue, as they feel that their efforts will be rewarded and he will overcome his problems.
32. Mr Driver senior said in his oral evidence that in his opinion, his son’s main problem is not gambling, but he has some kind of mental problem, and gambling is an outlet for this. He has observed that he keeps calmer and is more outgoing and communicative and has a better attitude when he is taking his medication. He said that he was a much happier person after he had obtained his job and he had more self esteem and was more mature. He said that he feared for his son’s future if he had to go back to Ireland and did not think that he would “survive too long”.. He said that if he could not find employment in Ireland he would probably end up on the streets, as he would not have the same support from relatives in Ireland. He thought that it would be difficult for him to obtain work in Ireland, because he has no trade or qualifications.
Evidence of Ms Telfer
33. In her prepared witness statement, Ms Julie Telfer said that she has been employed by the Department for Correctional Services since 1976 save for absences of 18 months, and her role primarily involves the assessment and supervision of adult offenders. In the course of her duties she is required to make appropriate treatment and welfare referrals, and engage offenders in interventions aimed at preventing crime through the successful resolution of their problems and problem behaviours.
34. In her role as a Community Corrections Officer (formerly known as a Probation and Parole officer), Ms Telfer has known the applicant for over 10 years, during which time, she said, he had made considerable progress in many respects. She noted that his gambling activity had been brought increasingly under control by the in-patient program with Mr Tolchard at the Flinders Medical Centre, but behavioural and functioning problems continued. However, in her experience, he has shown “no signs of a malicious nature, a nastily devious or cunning outlook, aggression, or violence” (T5.17, page 188). In her assessment, the applicant’s offending behaviour is not necessarily due to his gambling addiction, but is due to a personality disorder involving poor insight and poor impulse control and an inability to distinguish right from wrong. She said that over time and with the support he had received and through the process of learning, his level of insight and motivation not to offend had increased. She thought that when he was working over the last year he was better than she had ever seen him previously. She said that working was a mammoth achievement for him; he was very proud and was pleased to be taking up the reins of his own life. He is afraid of success as well as failure, and gets anxious when he goes outside his comfort zone. He has become more communicative and gradually learned to interact better with her, and was now more prepared to assert himself and was more adult in his presentation and demeanour.
35. Miss Telfer considers that the applicant is very dependent on support from his parents and her. She confirmed that that support had been consistent, and he has needed the support and patience which a child would need. Without his parents’ support the applicant would be a much greater trial to society than he has already been. She that his parents have stood by their son at the expense of other family relationships and outside friendships, and have financed legal support for him and have suffered incredible pain.
36. In her assessment, the applicant’s offending behaviour has been a cry for help on his part. However, she pointed out that he has not worsened in the sense that the pattern of the offences were not serious in the scheme of things and had remained the same and had not escalated to crimes involving violence. His relationships at home and with her had improved. The fact that he had maintained his employment and was not sacked by his employer was positive. She was pleased that he was attending Gamblers Anonymous, and said that the COPE courses had assisted him a great deal in his interpersonal communications. She thought that his employment, involving as it did a structured day, was vitally important to him, just as his volunteer work had been important before that. His experience from being employed made him realise that he was capable of work and need not be frightened of it.
37. Ms Telfer further commented that the applicant was the only prisoner she had known who had not made a negative association in prison, and there had not been a deterioration in his offending in the sense that his crimes had not escalated to crimes of violence.
38. Ms Telfer said that in her experience the applicant’s situation was very unusual and no-one really knew the underlying cause of his problems which manifested themselves in offending behaviour. She considers that the applicant has a personality disorder arising out of formative and developmental experience, and said that childhood conduct disorder is recognised as a precursor to personality disorder – including that of an anti-social and borderline nature.
Evidence of Dr K P O’Brien
39. Dr O’Brien first saw the applicant in order to prepare a report for the Adelaide Magistrates Court for sentencing for the offence committed by the applicant on 4 March 2002. He prepared a report dated 21 October 2002 (T5.16, pages 179-182). In this report, Dr O’Brien noted that the applicant had been taking an anti-depressant, Zoloft, in a low dose on an intermittent basis. On examination he thought that the applicant was not showing any apparent signs or symptoms of active mental illness, there was no evidence of any psychosis (a break with reality) or thought disorder, and he did not appear to be clinically depressed or have an abnormal level of anxiety. He concluded that in psychiatric terms his problems as he was growing up, of conduct disorder of childhood and adolescence, have continued into adulthood. He considered that personality problems, coupled with poor impulse control, appeared to be his dominant features. Additionally he had a background of obsessive gambling which could be described as a form of pathological gambling.
40. Dr O’Brien subsequently saw the applicant on three occasions, 9 December 2002, 13 January 2003 and 5 February 2003. He then referred the applicant to a colleague, Mr Balfour, who has expertise in the assessment and management of pathological gambling. He proposed that Mr Balfour would be the applicant’s primary therapist, and he (Dr O’Brien) would keep a watching brief because there were some aspects of medication that might need to be monitored. In his evidence before me, Dr O’Brien confirmed the view expressed in his report of 21 October 2002 that it was worth persisting with therapy, and that this should be more focussed and concentrated within one team. He thought that all possibilities of treatment had not been exhausted and there was a degree of willingness to try to assist him. As the applicant had not attended further sessions with Mr Balfour in the period after the applicant’s employment commenced, he had been “lost to (them)”.. However, he thought that compared to many of the patients he saw, the applicant had a stable background and a supportive family, and he thought it was worthwhile persisting with him. Having regular employment and arrangements to regulate his finances would enhance the prospects of successful treatment. He also said that it appeared that no EEG had been carried out, and he thought that it would be worth further investigations to make sure that there were no organic or neurological issues which had been missed.
41. Dr O’Brien said that he was Irish himself and was very familiar with the Irish situation. He thought the country was almost unrecognisable compared with the country it was 10 or 12 years ago. The whole social fabric and economic situation of the country had changed dramatically. He thought that the applicant would find it very troubling indeed to try to adjust back to Ireland after living in Australia for nearly 16 years.
Evidence of Richard John Balfour
42. Mr Balfour gave evidence that the applicant was referred to him by Dr O’Brien for cognitive behavioural therapy. He saw the applicant on one occasion and did an intake assessment. He made a provisional diagnosis that the applicant had a pathological gambling disorder, mainly on gaming machines, and would benefit from some psychological input from himself. Subsequent appointments were cancelled for work reasons. Mr Balfour said that the means of dealing with the applicant’s gambling addiction would include dealing with any issues such as his being suicidal or depressed, explaining the rationale for therapy, referrals to financial counsellors at Break Even, allowing himself to be banned from gaming facilities, and building a rapport with him as a client.
43. Mr Balfour thought that the fact that the applicant had obtained employment was a very significant event and should be fostered as a stabilising influence. In the context of the general population, Mr Balfour considered that the applicant had quite a severe problem, but within the forensic population his prognosis could be “a bit more optimistic” (transcript 9.1.03, page 25.7). He pointed out that the applicant is mainly addicted to gaming machines and not all forms of gambling, he had no alcoholism or poly-substance abuse problems, he was not living on the streets and had some family support, and his offending had not escalated and was basically property offences. Without any treatment or support his prognosis would be very poor, and his treatment would take some time, with expected relapses of gambling along the way.
Other issues
44. One of the conditions of the applicant’s parole when he was last convicted was that he should continue to seek treatment for his gambling addiction. There was an issue at the hearing before the Tribunal as to the adequacy or otherwise of the applicant’s attempts to obtain such treatment. It appears from the evidence before me that after he commenced his job at the steel company, the applicant telephoned Mr Balfour on his direct line on about four occasions in an attempt to make an appointment with him, but the number did not answer. He also wrote three or four letters to Dr O’Brien cancelling appointments and requesting new appointments, and Dr O’Brien passed these letters on to Mr Balfour. A copy of one of those letters is included as an attachment to exhibit R1. He also wrote a number of similar letters to Mr Balfour. However, Mr Balfour did not make contact with the applicant, and no appointments were in fact made. Until his detention, the applicant was working shifts from either 6:00am to 2:00pm or 10:00am to 6:00pm. He generally rode a bicycle to and from work, a distance of about 10 kilometres each way. His employment made it more difficult for him to make or keep appointments with Mr Balfour, and the applicant was trying to keep his job.
45. The applicant’s father said that after the applicant had been detained following the cancellation of his visa, he returned some keys to the company where the applicant had been working. He said that he was assured that if the applicant could get his visa back there would be a job available for him. This evidence was contradicted by Mr Schoeman, the branch manager of the company. He produced a letter to say that the applicant’s position had been filled, no suitable positions were available at present and he did not foresee such a position becoming available in the near future (exhibit R2). Mr Schoeman said that he was the only person with authority to hire staff, although his operations manager, Mr Bartlett, would have authority to offer employment but only in conjunction with him. Mr Schoeman further said that if a position became available with his company this would be filled in accordance with the recruitment policy; the company would advertise the position and then interview applicants. Neither Ms Nunan, nor Ms Reed wished to call Mr Bartlett, the operations manager. However, as Mr Schoeman had only taken over as branch manager shortly before the cessation of the applicant’s employment, and as Mr Bartlett was available to give evidence, I decided to take the unusual course of calling him as a witness myself. Mr Bartlett said that the applicant was a keen worker, and the only concern about his work was that he performed some tasks too eagerly, and this gave rise to some occupational health, safety and welfare issues which were, however, then addressed. He further said that whilst he did not inform the applicant’s father that a position would be kept open for the applicant, he would have given him the impression, in the week or two after the employment ceased and before the position was filled, that the applicant could return to his old job. I accept the evidence of Messrs Schoeman and Bartlett in preference to that of the applicant’s father. I observe also that it is to the applicant’s credit that he managed his work to the satisfaction of his employer. This provides some basis for optimism that the applicant may be able to find and keep other suitable employment, and on the evidence before the Tribunal, this would undoubtedly assist his longer term prognosis.
Consideration of Exercise of Discretion
46. Whilst Ms Nunan for the applicant conceded that the applicant failed the character test, she submitted that the discretion under s 501(2) of the Act should be exercised in his favour, and that his visa should not be cancelled. In considering this issue, I must take into account Ministerial Direction No. 21 as a guide to making my decision. Part 2 of the Direction relates to the exercise of the discretion to decide whether or not the non-citizen should be permitted to remain in Australia. I now consider the relevant considerations in the Direction in turn.
47. The three primary considerations in Direction No. 21 are as follows:
(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 or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
First Primary Consideration - Protection of the Australian Community
48. In reference to the protection of the Australian community from the actions of criminals and lessening the risk of crime and disorder to the Australian community, the Direction identifies three factors relevant to an assessment of the level of risk to the community of the continued stay of a non-citizen.
49. Seriousness and Nature of the Conduct. The first of these three factors is the seriousness and nature of the conduct (paragraph 2.5 of the Direction). As to this, paragraph 2.6 includes a detailed list of examples of offences which are considered by the Government to be very serious. This list of examples does not include house breaking, and compared with the offences listed, the applicant’s offences are not very serious. It is also relevant to consider the sentence imposed as an indication of the seriousness of the offender’s conduct (paragraph 2.7 of the Direction). In this regard, low non-parole periods were set in a number of instances, and the sentencing remarks by the Magistrate at the time of the applicant’s last conviction indicated that the sentence imposed was not as significant as it ordinarily would have been. It is also necessary to consider the extent of the person’s criminal record, including the number and nature of offences, the time between offences and the time elapsed since the most recent offence (paragraph 2.7(a) of the Direction). In the present matter, the applicant’s criminal record is persistent and serious, but as against this his crimes are not repugnant, (being the further criterion referred to in paragraph 2.7 (b)).
50. It is further necessary to take into account any relevant mitigating factors (paragraph 2.8(a)). In the present matter, there are significant mitigating factors which include the applicant’s apparent personality disorder, the fact that his behavioural problems may have been exacerbated by his experiences at school when he first came to Australia, his gambling addiction, and his endeavours to undertake courses, his participation in Gamblers Anonymous, and his good performance at work when, by his own initiatives, he succeeded in obtaining his first job. There is no suggestion that the applicant represents a danger to children or young people who are especially at risk, and the offences in question are not related to drugs or crimes of violence (see paragraph 2.4 of the Direction).
51. Likelihood of Repetition of Conduct, and Risk of Recidivism. The second of the three factors referred to in paragraph 2.5 of the Direction is the likelihood that the conduct may be repeated (including any risk of recidivism (paragraph 2.5(b)). Counsel for the respondent submitted that the “one certainty” on the evidence was that the applicant was a pathological gambler, and that the probability is that he will engage in offending behaviour to support his habit. Counsel pointed out that on the applicant’s evidence, he continued gambling until August or September 2003, and lost about $2,000 over the period since he obtained employment in March 2003. I find on the evidence of Dr O’Brien and Mr Balfour that if the applicant does not undergo therapy for his gambling, it will continue. Indeed, on Dr O’Brien’s evidence, the applicant would need to go for 12 months or more without gambling, following the completion of therapy, before he could arrive at a positive prognosis.
52. It is also relevant for the Tribunal to determine the likelihood of the offending conduct being repeated. Relevant factors are listed in paragraph 2.10 of the Direction. The number and frequency of the applicant’s previous convictions and the fact that he committed further offences notwithstanding the warnings issued by Courts when he was sentenced and notwithstanding the warning by DIMIA that cancellation of his visa would be reconsidered if he offended again are relevant factors which count heavily against the applicant. In cross-examination, he admitted that he had continued to gamble throughout last year when the urge came upon him, and when asked whether it was likely that he would re-offend if he did not have a job, he said that history would suggest that he would re-offend if the urge to gamble came upon him. In re-examination, he said he would not re-offend if he remained in Australia, because the chances were that he would be able to get his job back. He said further that even if he could not get his job back, he would not gamble because he had “had enough of all this, in and out of custody” and if he got the urge to gamble he would be able to control the urge. Dr O’Brien said that without active and successful intervention and treatment for his pathological gambling, he would anticipate that the applicant’s offending behaviour would continue unfettered in one form or another. Ms Telfer thought that the applicant was very vulnerable at times of stress to lapse into gambling and offending, and thought that it was “not unlikely” that he would relapse into offending behaviour. Mr Balfour thought that if his gambling addiction was not addressed there would be a “great risk of recidivism” (transcript 9.1.04, at page 25.6). However, he thought that within the “forensic population” one could be a bit more optimistic about the applicant’s prognosis. This was because he was mainly addicted to gaming machines as opposed to other forms of gambling, he did not have any alcoholism or poly-substance abuse problems, he has stability in his living arrangements and family support and his offending had not escalated. He thought that there would still be a significant risk of relapses along the way, but a relapse of gambling would not necessarily lead to offending. Mr Balfour then proceeded to explain the therapy which he would utilise (see paragraph 42 above), and said that statistically the success rate of therapy for gambling addicts in Australia was 50% to 60%.
53. It is apparent from their evidence that both Dr O’Brien and Mr Balfour think that it is worthwhile pursuing therapy in an endeavour to cure the applicant’s gambling addiction, and that a number of aspects of his situation will assist the applicant in this regard. However, I find on the evidence before me that it is likely that relapses of his gambling problem will occur during the course of his therapy, and the outcome of his therapy cannot be predicted at this stage. I further find that there is a significant risk that the applicant will re-offend. However, I further find, particularly having regard to the evidence of Mr Balfour, that the applicant may not re-offend, and that it may well be possible to control his offending behaviour even if there are relapses of his gambling addiction. I also find that a more reliable assessment of the likelihood of recidivism will be possible after the completion of the concerted course of therapy which Dr O’Brien and Mr Balfour are prepared to undertake, and after an appropriate interval of time has elapsed following that course of therapy.
54. It appears from the evidence before me that the applicant previously improved following therapy from Mr Tolchard at the Flinders Medical Centre, but this therapy ceased when he returned to the United Kingdom. The loss of the applicant’s employment is most unfortunate, but the other positive aspects of his present prognosis remain, and no doubt he will be encouraged to seek other employment or resume his voluntary work in order to maintain his improving social interaction and behaviour. There are reasonable prospects for the applicant of further rehabilitation and (if his treatment is successful) his making a positive contribution to the community.
55. General Deterrence. The third of the three factors relevant to an assessment of the level of risk of the community is general deterrence, that is whether the cancellation of the visa may prevent or discourage offences by other persons (paragraph 2.5(c)). There is no evidence before me that this would be the case, and I do not think that this factor is material in the present matter.
Second Primary Consideration – Expectations of the Australian Community
56. I accept the submission of counsel for the respondent that the Australian community has a legitimate expectation that non-citizens should obey Australian laws whilst they are in Australia. On the face of it, the community would expect the Minister to cancel the visa of a person who (like the applicant) is a repeat offender and who also has a history of offending after having been released on parole. However, there would undoubtedly be a range of views in the community on the circumstances in which a visa for a non-citizen should be granted or cancelled. As Deputy President McMahon said in Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at paragraph 34, there would also be a general expectation in the community that the Act would be administered fairly and humanely. This second primary consideration also appears from its terms to require the decision-maker to formulate the expectations of the Australian community not only objectively, but also with reference to the particular person involved in the relevant determination. This further increases the potential extent of diversity of views within the Australian community, and adds to the difficulty of the decision-maker in formulating the expectations of the Australian community in a particular matter.
57. In the present matter, the applicant’s offences are at the lower end of the scale of criminality, and were themselves the consequence of his gambling addiction, and indirectly, on the probabilities, his personality disorder. His behavioural problems associated with this disorder may have been exacerbated by his treatment at the first school he went to in Australia, both by other students and a teacher at the school. The applicant has now lived in Australia for most of his life, and all of his adult life, and the extent of the support which he might receive in Ireland if he were required to return there is uncertain. In all of the circumstances of this matter, I am inclined to the view that the expectations of the Australian community would not lead to the conclusion that the visa should be cancelled.
Third Primary Consideration – Best Interests of a Child or Children
58. The applicant has no children and this consideration is not relevant in the present matter.
Other Considerations
59. I now refer to such of the other considerations included in paragraph 2.17 of Direction No. 21 as are relevant to the present matter. In doing so, I take into account the preface to paragraph 2.17, which reads as follows:
“2.17 When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant. It is the Government’s view that where relevant, it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations” (emphasis added).
This preface is then followed by a list of some 11 examples of other considerations. These are not exhaustive, because the preface says that the other considerations may “include” those matters.
60. The word “generally” in paragraph 2.17 is important in construing the structure of the Direction. I note that certain paragraphs of the predecessor of Direction No. 21, namely Direction No. 17, were held to impose an unlawful fetter on the generally worded discretion conferred on the Minister by s 501 of the Act, because they were interpreted as laying down as a general rule that, in no case, could a non-primary consideration telling against the exercise of the discretion under s 501 be given more weight than any of the three primary considerations, no matter how powerfully a particular non-primary consideration might favour allowing the non-citizen to be granted or to retain his or her visa (see Jahnke v Minister for Immigration and Multicultural Affairs [2001] FCR 268, and other authorities there discussed). (I also note that other members of the Federal Court have expressed a contrary view, namely that the primary considerations are so broadly expressed as not to exclude the consideration of virtually all relevant factors, including factors personal to the applicant : see Turini v Minister for Immigration and Multicultural Affairs [2001] FCA 822, and Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326). It appears that as a result of the decision in Jahnke and earlier decisions to the same effect, paragraph 2.17 of Direction No. 21 now includes the word “generally”, whereas previously the corresponding paragraph of Direction No. 17 omitted this word. Further, the predecessor of paragraph 2.2 of Direction No. 21, namely paragraph 2.2 of Direction No. 17, also included the following sentence:
“Decision-makers should note that no individual considerations can be more important than a primary consideration, but that a primary consideration cannot be conclusive in itself in deciding whether to exercise the discretion to refuse or to cancel a visa.”
This sentence has been omitted from paragraph 2.2 of Direction No. 21, also apparently because of the decisions in Jahnke and earlier cases to the same effect.
61. In my opinion, it follows from the amended wording now included in the current Direction and from the views expressed in Jahnke (and also in Madafferi) that whilst Direction No. 21 provides guidance as to the relative weight to be given to various considerations, the discretion conferred by s 501 is unfettered, so that in the particular circumstances of a matter any one factor may outweigh any other possibly relevant factor; in particular, one of the “other considerations” may outweigh a primary consideration if the facts of a particular matter warrant this result.
62. I further note that in Jahnke, Drummond J, in the course of expounding his reasons for his conclusion as to the unlawfulness of the relevant paragraphs of Direction No. 17, referred to the example of an organiser of major heroin importations being engaged in a much more serious level of criminal activity than an addict who deals only in small quantities of heroin at street level to feed an addiction; and where the question of whether the discretion in s 501 should be exercised against the person concerned, factors favouring non-cancellation of the person’s visa might count for little in the former case, but might well be entitled to much more consideration in the latter case. This example is helpful in analysing the issues in the present case.
63. The first of the other relevant considerations is “the extent of disruption to the non-citizen’s family, business and other ties to the Australian community” (paragraph 2.17(a)). In the present matter, I find that the applicant’s parents have provided unstinting and selfless support and assistance to the applicant ever since his difficulties started at a young age. I further find that the applicant’s personality and behavioural problems have already caused considerable strain and difficulty within the applicant’s immediate family, particularly as regards the relationship between the applicant’s sisters, his parents and himself. The parents’ clear preference is to continue to reside in Australia, even though they have apparently not ruled out the possibility of returning to Ireland to continue to support their son if his visa is cancelled. However, the applicant’s sisters both live in Australia, and I find that a decision to exercise the discretion adversely to the applicant would be severely disruptive to the applicant’s family, and in particular to his parents.
64. The next consideration is the degree of hardship which would be caused to immediate family members lawfully residing in Australia (paragraph 2.17(c)). In the present matter, there would be severe hardship to the applicant’s parents, either because their son will be separated from them and they will be unable to continue their life-long endeavours to assist him, or they will be obliged to move back to Ireland to continue their past level of support for their son. They do not wish to return to Ireland, and this would entail each of them giving up their current employment and separating their family, because their daughters are in Australia.
65. Ms Reed for the respondent drew attention to the family composition of the applicant’s family in Ireland, being the factor referred to in paragraph 2.17(d). The applicant has an extended family in Ireland consisting of aunts, uncles and cousins, and Ms Reed submitted that he would be able to stay with one of his aunts until he obtained employment in Ireland. However, the applicant has lived for most of his life in Australia and has seen little of his extended family since coming to Australia. I consider that he will not be able to rely on support from his extended family, and certainly they will not provide the high level of support which the applicant needs, and has always received from his parents. His aunts and uncles are now getting on in age and could not be expected to take responsibility for the applicant.
66. In the context of whether there was evidence of rehabilitation or any recent good conduct (paragraph 2.17(h)), Ms Reed pointed out that the Tribunal should take into account the applicant’s long and ongoing criminal history and his repeat offences whilst on parole. However, on the evidence, last year was the applicant’s best year, and he benefited greatly from being employed and from the continued assistance of his mother in managing his money. Both Mr Balfour and Dr O’Brien consider that it is worthwhile to pursue a treatment program with the applicant and that there are prospects that he will benefit from this. There is no evidence that the applicant offended after the date of his last recorded offence on 4 March 2002, although I take into account that for part of this time the applicant has been in jail or in detention. It appears that the applicant was assisted by his earlier treatment by Mr Tolchard, and in my view he should be given the chance to complete the further treatment which is now available to him with Mr Balfour and Dr O’Brien.
67. Ms Reed further pointed out that the applicant did not attend for therapy with Mr Balfour. He only saw Mr Balfour on one occasion and did not make follow-up appointments. I refer to my summary of the evidence on this issue in paragraph 44 above. I find that the applicant made a number of attempts to obtain appointments. Further, the applicant’s employment was most important to him, and I can understand him putting this ahead of obtaining appointments for therapy. In the circumstances I draw no adverse inference from the failure to attend therapy during the period of his employment last year.
68. The final relevant factor in paragraph 2.17 is the fact that the applicant had been formally advised by MIMIA that his conduct brought him within the visa cancellation provisions of s 501 (paragraph 2.17(k)). The applicant did not heed this warning. I am also concerned that the applicant appears not to understand that in the past, he has received very lenient and sympathetic penalties from the Courts notwithstanding his record of repeated offences. This consideration counts heavily against the applicant in the present matter.
69. I am required by paragraph 2.2 of Direction No. 21 to have due regard to the importance placed by the Government on the three primary considerations, but also to adopt a balancing process which takes into account all relevant considerations. The first primary consideration would militate in favour of cancelling the visa, because of the frequency of the applicant’s repeated offences and the real risk of recidivism. However, not all of the aspects of this primary consideration weigh heavily against the applicant. Further, for the reasons I have mentioned, various other relevant factors are important in the present matter, and are in the applicant’s favour. I consider on the balance that he should be given one last opportunity to take advantage of the therapy which is once again now available to him through Mr Balfour and Dr O’Brien, and also to take advantage of the assistance and support which will continue to be provided by his parents and Ms Telfer. It appears that the applicant learned from his improved situation last year and from the experience of having regular employment, and that he will be encouraged to progress further. In all of the circumstances, but not without considerable hesitation, I have decided that it is appropriate in the present matter to exercise the discretion under s 501(2) in the applicant’s favour.
70. Accordingly, I set aside the decision under review and remit the matter to the respondent for further consideration with a direction that the discretion under s 501(2) not to cancel the applicant’s visa be exercised in favour of the applicant, but the applicant is to be warned again that if he is convicted of a further offence, a fresh assessment will be made with a view to considering cancelling his visa.
I certify that the 70 preceding paragraphs are
a true copy of the reasons for the decision herein
of Deputy President D.G. JarvisSigned: .......................................................................................
N. Quirke AssociateDate/s of Hearing 9 and 13 January 2004
Date of Decision 21 January 2004
Counsel for the Applicant Ms J Nunan
Solicitor for the Applicant Jane Nunan & Associates
Counsel for the Respondent Ms E Reed
Solicitor for the Respondent Australian Government Solicitor
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