Drollet and Minister for Immigration and Citizenship
[2010] AATA 854
•2 November 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 854
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/3565
General Administrative DIVISION ) Re Tapita Drollet Applicant
And
Minister for Immigration and Citizenship
Respondent
DECISION
Tribunal Senior Member Jill Toohey Date2 November 2010
PlaceSydney
Decision The decision under review is set aside and instead the Tribunal decides that the applicant’s visa should not be cancelled.
....................[sgd]..........................
Senior Member
CATCHWORDS
IMMIGRATION – visa cancellation – character test – substantial criminal record – whether Tribunal should exercise discretion not to cancel applicant's visa – Ministerial Direction No 41 applied – primary considerations – other considerations – applicant’s family background – factors mitigating seriousness of applicant’s criminal conduct – mental health – applicant in Australia from 18 months old – no ties to New Zealand – balance of considerations against cancellation – decision under review set aside
Migration Act 1958 (Cth) ss 499, 500, 501
REASONS FOR DECISION
2 November 2010 Senior Member Toohey
Introduction
1. Tapita Drollet arrived in Australia from New Zealand with her parents in 1985 when she was 18 months old. Apart from returning to New Zealand for five months in 1997, and for two months in 1999, she has lived here since. She holds a Special Category Visa by virtue of which, as a New Zealand citizen, she is allowed to remain in Australia, subject to the provisions of the Migration Act 1958 (the Act).
2. Ms Drollet was first charged with a criminal offence when she was 15 and, since she turned 17, she has been convicted of a number of criminal offences. She has breached her parole on a number of occasions. She has been imprisoned on ten occasions and has spent five of the past eight years in gaol.
3. On 17 August 2010, the Minister for Immigration and Citizenship (the Minister) cancelled Ms Drollet’s visa on the ground that, by reason of her substantial criminal record, she does not satisfy the character test in s 501 of the Act. She seeks review of that decision.
Legislation
4. By s 501 (2) of the Act, the Minister may cancel a person’s visa if the Minister reasonably suspects that she or he does not pass the character test; and the person does not satisfy the Minister that she or he passes the character test.
5. A person is taken not to pass the character test if she or he has a substantial criminal record. A person has a substantial criminal record if she or he has been sentenced to a term of 12 months imprisonment or more, or has been sentenced to two or more terms of imprisonment totalling two years or more: ss 501(6) (a) and (7).
6. In August 2009, Ms Drollet was sentenced in the District Court of New South Wales to a total of six years imprisonment for robbery, common assault and demanding property with menaces with intent to steal. It is common ground that she has a substantial criminal record and does not pass the character test.
The issue
7. I have to determine whether the discretion not to cancel Ms Drollet’s visa should be exercised in her favour.
Ministerial Direction 41
8. The discretion in s 501(2) must be exercised in accordance with Direction No. 41 - Visa refusal and cancellation (Direction 41). The Direction is made by the Minister pursuant to s 499 of the Act and is binding on the Tribunal: ss 499 (1) and (2a).
9. Direction 41 requires that due consideration be given to the objective of the Act to regulate, in the national interest, the coming into and presence in Australia of non-citizens and, in this regard, to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious misconduct by non-citizens: cls 5.1 (2) and 10.1.
10. To the extent they are relevant to the particular case, a decision-maker must take into account four primary considerations:
(a)the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
(b)whether the person was a minor when they began living in Australia;
(c)the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct;
(d)any relevant international law obligations, including but not limited to, the best interests of the child, as described in the Convention on the Rights of the Child.
11. Factors relevant to assessing the level of risk of harm to the Australian community of a person’s continued stay include the seriousness and nature of the relevant conduct, and the risk that it may be repeated: cl 10.1(2).
12. Direction 41, which came into effect on 15 June 2009, replaced Direction 21. The earlier direction contained three primary considerations: protection of the Australian community, of which an important factor was general deterrence; expectations of the Australian community; and, best interests of the child or children.
13. General deterrence is not a factor in Direction 41 relevant to the seriousness and nature of conduct, and the expectations of the Australian community is no longer a primary consideration. These changes mark a shift in Direction 41 away from deterrence and punishment and towards the seriousness of the conduct itself and the risk that it will be repeated.
14. In addition, Direction 41 includes three primary considerations not in Direction 21: whether a person was a minor when she or he began living in Australia; the length of time she or he was ordinarily resident before engaging in criminal conduct; and Australia’s international obligations.
15. Other considerations are set out in cl 11. They must be taken into account where relevant and, generally, should be given less weight than the primary considerations: cl 11(2). They include family ties, and the nature and extent of any relationships; any links to the country to which the person would be removed; hardship likely to be experienced by the person or their immediate family members lawfully resident in Australia; and whether the person has been formally advised in the past that they risk deportation if their conduct continues.
Background
16. Ms Drollet’s family moved to New Zealand from the Cook Islands. They came to Australia when she was eighteen months old. She has an older half-brother, an older brother and two younger sisters. She describes her father as a chronic gambler and her mother as an alcoholic who drank every day and sometimes disappeared for days at a time. She witnessed violent arguments between her parents, and her mother was physically and emotionally violent towards her.
17. The family moved house when Ms Drollet finished year 4 at primary school. She found it hard to fit in to her new school and, while in her first year, she was sexually abused by a relative of her mother.
18. In 1997, Ms Drollet’s parents sent her to live with an uncle in New Zealand. She stayed six months but says she hated it and felt like she was in prison because her uncle was so strict. She did not want to return to her parents but thought her mother might have missed her and would treat her better. That turned out not to be, and she left home the same day she arrived and started living on the street. She was 13 at the time. She would return home from time to time but leave again after her mother became violent.
19. The violence stopped when Ms Drollet was about 16, by which time she had been living on the street for over two years and had been exposed to drugs. She started using alcohol and cannabis when she was 13 and, by 15, was a heavy cannabis user. She started smoking heroin when she was 15 and was using every day by 16; she started injecting when she was 17.
20. Ms Drollet did not tell anyone that she has been sexually assaulted until she was 21 when she told her mother. Rather than supporting her, her mother called the police because there were warrants against her at the time, and she was returned to gaol.
Primary considerations
The protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence
21. Direction 41 provides guidance to assessing the seriousness of conduct and the risk that it maybe repeated.
22. Examples of offences and conduct considered serious are set out in cl 10.1.1(2). Crimes of violence or the threat of violence are considered of special concern to the welfare and safety of the Australian community: cl 10.1.1(1). The sentence imposed for an offence is considered indicative of the seriousness of a person’s conduct against the community. Due regard must be had to the number and nature of offences, the period between offences, and the time elapsed since the most recent offence. Other relevant factors include evidence from independent and authoritative sources, such as judicial comments and professional psychological reports, and any mitigating factors advanced by the person: cl 10.1.1(3) and (4).
23. When assessing the risk that conduct may be repeated, a person’s general conduct and total criminal history are relevant. Particularly relevant are a recent history of convictions, evidence of rehabilitation and the prospect of further rehabilitation, and evidence of breach of judicial orders: cl 10.1.2.
Seriousness and nature of the conduct
24. The full details of Ms Drollet’s criminal history are not in evidence. The Minister relies on s 503A of the Act which precludes disclosure of information relevant to the exercise of the power in s 501 in specified circumstances.
25. Ms Drollet does not dispute she has an extensive criminal record but she cannot recall all details clearly and so has pieced together her history as best she can. Records of the NSW Department of Corrective Services show offences for which she has been imprisoned, and remarks of sentencing judges throw light on her most serious offences as well as setting out much of her background and criminal history.
26. A difficulty with the lack of information about Ms Drollet’s criminal history is that it is hard to assess the seriousness of some offences, such as assault, which can encompass a range of conduct from relatively minor to much more serious conduct. To some extent, the seriousness of her offences can be gauged by the sentences imposed. Moreover, it is clear that she has a pattern of offending from a young age, much of it related to her drug habit, and she has breached probation and parole conditions on numerous occasions.
27. Ms Drollet says she started stealing when she was young because the family never had any money. The first “major” stealing offence she recalls was taking a jumper from a shop because she wanted something warm and she wanted to fit in at school. She says she started getting into more trouble when she started using drugs.
28. In May 2002, Ms Drollet was sentenced to 14 days imprisonment for common assault. In November 2002, she was sentenced to 4 months imprisonment for shoplifting and having stolen goods in custody. In March 2003, she was sentenced to 3 months for shoplifting. While in gaol, she was charged with introducing a syringe into prison and was sentenced to a further month. In February 2004, she was sentenced to 9 months imprisonment on charges of larceny, possession of suspected stolen goods and burglary.
29. In December 2004, Ms Drollet and her then girlfriend who was also using drugs, robbed an Asian grocery shop and stole $800. Two days later, they robbed another shop and stole money and cigarettes. One week later, they tried to rob the first shop again but left without taking anything. Ms Drollet and her girlfriend, pleaded guilty to two counts of robbery with an offensive weapon and one count of attempted robbery.
30. Sentencing Ms Drollet to 3 years and 3 months with a non-parole of 1 year and 9 months, District Court Judge Ellis said she and her girlfriend entered a small grocery business armed with a large kitchen knife and “a chopper type knife with a large, square blade”; they accosted the owner and demanded money and made off with $800. On the second occasion, they went to another shop armed with knives; they accosted the console operator and demanded money; they left with money and cigarettes. They went back to the first shop a week later armed with knives; they demanded money but the owner said he had nothing left because they had previously robbed him and they left without taking anything.
31. Judge Ellis noted the offences were serious and that an appropriately deterrent sentence had to be imposed. He noted that, on each occasion, the victim was vulnerable because of their employment, which was an aggravating factor, but he noted that no actual injury was inflicted, although use of a weapon was threatened. He considered it an aggravating factor that the offences were in company, but he noted that both offenders had demonstrated remorse and pleaded guilty. He noted Ms Drollet’s history included prior aggravated robberies albeit when she was a child. He thought both offenders had reasonable prospects of rehabilitation.
32. Judge Ellis noted Ms Drollet’s family background, including the sexual assault, and that she had been affected by her father’s death and her girlfriend’s mental breakdown, the cumulative effect of which he considered to be special circumstances.
33. In November 2006, Ms Drollet was sentenced to 6 months imprisonment for shoplifting. In January 2008, she was sentenced to 9 months imprisonment for shoplifting with a non-parole period of 3 months. She was released in May 2008.
34. In April 2008, Ms Drollet and her younger brother, who was withdrawing from drugs at the time and wanted money, committed offences of robbery, common assault and demand money with menaces on a train from Lakemba to Belmore.
35. In August 2009, Ms Drollet pleaded guilty to these charges and was sentenced to an effective term of 3 years and 6 months in connection with the train incident. Her earliest release date was 5 September 2010. On 6 September 2010, she was transferred to Villawood detention centre pending the outcome of these proceedings.
36. The sentencing remarks of Acting Judge Graham in 2009 show that Ms Drollet and her brother got onto a train where she sat beside a 13-year old girl and demanded to look in her bag. When the girl tried to move away, Ms Drollet grabbed her leg. The girl was able to get away and join her friends. Ms Drollet then approached the group and, when a 13-year old boy would not hand over his possessions, she punched him in the face and grabbed his iPod earphones. When he struggled, she punched him again in the face. Her brother then joined in. When they got off the train, the young man followed them and asked for his iPod back but Ms Drollet kicked him in the leg and walked off.
37. Acting Judge Graham noted Ms Drollet’s family history. He thought her culpability was diminished by evidence of what appeared to be paranoid schizophrenia. He noted that part of the problem on the day of the offences seemed to be that her mother had taken away her anti-psychotic medication and she had been prescribed Xanax and Serapax which, according to a psychologist, probably affected her judgment and level of awareness and which, combined with a binge on heroin, contributed to her offending behaviour. However, he noted she had a criminal history going back to 1998 and she had “a propensity to rob people with little regard for their property or physical wellbeing”. Nevertheless, he thought she had a high level of intelligence and the potential to improve her employment prospects.
38. While in custody, Ms Drollet has been charged with a range of disciplinary offences. They include failing to maintain cleanliness, smoking when not permitted, and entering cells when not permitted. For the most part, they appear to be relatively minor. However, she also incurred penalties for damaging and destroying property, and assaulting a law officer, obviously more serious offences. As well, in January 2009, a urine test returned positive for methamphetamine, and in August 2009, she tested positive for clonazepam and mirtazapine, prescription drugs which she obtained from other inmates.
39. Ms Drollet’s record shows repeated breaches of probation and parole conditions, leading to her return to custody, but details of these occasions are at best sketchy. One of the difficulties with her record is ascertaining how seriously most of her offences were regarded by the courts because her custodial sentences seem often to be a combination of return to gaol for breaching parole and sentences for new offences.
40. For Ms Drollet it is conceded that she has committed serious offences but it is submitted that most were to support her drug habit and that there are mitigating factors which reduce the seriousness of her criminal history.
Risk that the conduct may be repeated
41. Jennifer Howell, a consulting psychologist, interviewed Ms Drollet in October 2010 in connection with this application. Ms Howell has provided a written report and gave oral evidence.
42. Ms Howell notes that records show that Ms Drollet was diagnosed with Post-Traumatic Stress Disorder in 2003 after she witnessed the fatal stabbing of a fellow inmate to whom she was close. In 2004, she was diagnosed with schizophrenia by the Community Mental Health Team at Canterbury hospital and prescribed Largactil which was apparently not helpful, and she was placed on suicide watch. In 2005, while in custody, she was prescribed Zyprexa, and then Zoloft, for depression. In 2006, she was diagnosed with schizophrenia and prescribed the anti-psychotic drug, Seroquel, to calm her mood and reduce her symptoms. She has attempted suicide once but now reports feeling stronger and more in control of her mental health.
43. Ms Drollet reported to Ms Howell that all of her criminal history related to her drug and alcohol dependency. She said her most recent offences occurred after her mother had confiscated her Seroquel. She saw a doctor who prescribed Xanaz and Seropax, benzodiazepines used to treat anxiety, which made her sleepy. At the same time, she was using heroin and methadone. Ms Drollet told Ms Howell she was shocked when she saw her behaviour that day replayed on CCTV and said she would not have behaved that way but for the drugs.
44. Ms Howell told the Tribunal that she was surprised that Xanaz and Serapax, both of which are highly addictive, were prescribed by a doctor who did not know Ms Drollet well. She conceded she did not know what doses were prescribed, or what amounts Ms Drollet took, and she could not say how much the drugs affected her behaviour that day. However, she thought enough was known of their effects to think it possible.
45. Ms Howell gave evidence that Ms Drollet indicated her intention to have further treatment for her addiction, although she did not know what that would be. She said she supports the idea of Ms Drollet undertaking a residential treatment program and noted that she had been drug-free for over 12 months now, and had not used heroin for two years, factors she thought would increase her prospects for rehabilitation.
46. Ms Howell considers that factors weighing in favour of Ms Drollet’s rehabilitation are that she is capable; she has family support and feels she can rely on her older brother; and she has indicated some willingness, all of which make her prospects better than many others’.
47. An Immigration Report prepared by the NSW Probation and Parole Service on 29 March 2010 speaks quite well of Ms Drollet. It notes that, due to the number of disciplinary changes while in custody, she had been placed on a behaviour management plan; she had moved through the three phases of the plan satisfactorily and “returned to normal discipline again in October 2009”. She is reported to have completed “a significant number“ of education and rehabilitation programs while in prison, including alcohol and drug awareness (April 2009); Anger and Depression (May 2009); Out of the Dark, a Domestic Violence Abuse program (February 2010); a Drug and Alcohol Addiction program (January 2010).
48. In March 2010, Ms Drollet completed a “Satellite Program” which covered topics including risk factors for re-offending and developing a post-incarceration plan for which she was awarded a certificate for best all-round performance. The Probation and Parole Service report notes that she had been attending sessions with a psychologist and an Alcoholics Anonymous support group. She had shown “a high level of motivation and was a committed and valued member of the groups”. In March 2010, she was presented with the “Most Improved Attitude” award. She had been attending educational classes in art, organising a meting and leadership, and was shown to be an excellent student and was presented with achievement awards, copies of which are before the Tribunal.
49. The Immigration Report notes that Ms Drollet had received positive reports about her work as a general hand at the correctional centre and she was in regular phone contact with her mother and siblings, and had regular visits from the Prison Fellowship.
50. Ms Drollet’s older half-brother, Francois Drollet, attended the hearing with his wife and daughter. He was brought up by grandparents and an uncle in New Zealand until he was about 13 or 14, then came to Australia to live with his father and Ms Drollet’s mother and their children. He left when he was about 18 because he could not stand the violence and his father’s gambling. He married when he was 19 and has three children. He and his wife went back to New Zealand in 1997 and returned to Australia in 2007. He has social work qualifications and is a Senior Caseworker at an out of home care program for children in care. He has worked with children in care, abused children and people with mental illnesses.
51. Mr Drollet is willing to support Ms Drollet. He proposes she live with him and his family. He says they have a network of family living close by and she will be supported by community networks and employment agencies. He and his family are involved in their church and she will have that source of support as well. He appears to be quite realistic about the potential difficulties, including the potential for Ms Drollet to relapse, but says he is willing to be in it for the long haul.
52. According to letters from Ms Drollet’s younger sisters, she has changed and shown “massive improvement”. Neither of Ms Drollet’s sisters gave evidence and I cannot give these letters any weight. Nor can I give weight to letters from Ms Dearne Cipolla, chaplain from the Australian Christian Churches Prison Fellowship, who has been visiting Ms Drollet in prison for around 18 months, or Reverend Christine Gyllies, chaplain, who has also seen her in prison.
53. Against the matters weighing in favour of Ms Drollet’s prospects for rehabilitation, she has not presented any concrete plan as to what she will do if released. Ms Howell said it is relatively easy to contact a service and arrange to be taken in, but it appears it could take some time, even if not long, and it is not clear what Ms Drollet will do in the meantime to promote her recovery.
54. Ms Drollet has previously indicated her intention to stop using drugs but has not done so. She was referred to a detox program when she was about 18 after appearing in the Youth Drug Court. She says the program worked for a while; she was in a refuge and liked the supportive people she lived with. She stayed off drugs for a time but was placed in an area where she was able to stay in contact with her friends and soon she was using again. Judge Ellis noted in June 2006 that she wanted to join Hillsong Church and that she had undertaken various courses in prison.
55. Ms Drollet’s history of breaching orders and returning to drugs suggest that her risk of relapse is quite high. Despite this, I accept that she is more motivated this time and that the support of her brother and his family make her chances of rehabilitation different, and better, than any previous time.
56. Ms Drollet has committed serious offences. I accept that there are mitigating circumstances in her case. However, her prospects for rehabilitation must be guarded. On balance, I find this factor overall weighs more in favour of cancellation than against.
Whether the person was a minor when they began living in Australia
57. By way of general guidance, Direction 41 provides that in some circumstances, it maybe 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: cl 5.
58. Clause 10.2 provides, in similar terms, that, if a person was a minor when they began living in Australia and spent their formative years here, thereby increasing the likelihood of establishing greater ties and linkages with the Australian community, this should be given favourable consideration.
59. Ms Drollet has effectively lived here all her life. She has no recollection of life in New Zealand before coming to Australia. All of her family, emotional, educational and social ties are to Australia. This factor weighs strongly in her favour.
The length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct
60. Direction 41 recognises that the longer a person has been in Australia, the more likely they are to have significant ties to the Australian community and, reflecting this, provides that more favourable consideration is to be given the longer a person has ordinarily been resident before engaging in criminal activity or activity that bears negatively on their character. It cites an example of ten years residence prior to engaging in criminal activity as an important consideration: cl 10.3.
61. Ms Drollet entered Australia in 1985. She was about 15 when she committed her first offence, about which little is known. Her earliest identified offence was the common assault in May 2002,
62. It is submitted for Ms Drollet that this factor weighs in her favour because the first offence about which anything is known was 17 years after she arrived in Australia. However, it is hard to say she should have the benefit of a period of time for much of which she was very young, and especially when she was still relatively young when she committed her first offence.
63. In my view, nothing about this factor can be said to weigh in her favour.
Any relevant international law obligations, including but not limited to, the best interests of the child, as described in the Convention on the Rights of the Child.
64. Ms Drollet has no children. Her two younger sisters, both of whom have submitted letters supporting her application, are still children and would suffer some hardship if she were returned to New Zealand. However, to the extent that their claims are relevant, they are more appropriately dealt with under family ties and hardship.
65. There are no other international law obligations relevant to her case. This factor weighs neither for nor against cancellation of Ms Drollet’s visa.
Other considerations
Family ties, the nature and extent of any relationships; Any links to the country to which the person would be removed
66. All of Ms Drollet’s family ties are in Australia. Her mother did not appear at the hearing and it does not appear likely that she will provide any support or assistance but all remaining members of her immediate family are here, as are many members of her extended family. The support of her older brother is an important part of her prospects for rehabilitation. Other than the uncle with whom she lived for several months in 1997, she has no real connection to New Zealand. I find this factor weighs strongly against cancellation.
Health
67. The evidence about Ms Drollet’s mental health is limited but she is currently under the care of a psychiatrist and a psychologist at Villawood and on anti-psychotic medication. It is not clear how removal from Australia would affect her mental health but it seems reasonable to conclude that, especially in the absence of supportive family and friends, it may well be detrimental.
Hardship
68. Ms Drollet says she wants to be here for her younger sisters and for her mother; she would be isolated if she returned to New Zealand where there is nothing she would be able to do. I accept that she has very limited skills or experience that would likely lead to employment and would face real hardship in New Zealand. This factor weighs against cancellation.
Education
69. It is submitted for Ms Drollet that she has taken steps to improve her education through the course she had undertaken in prison but what she has done has been limited, especially given the time she has had in prison, and I do not think this factors weighs particularly in her favour.
Whether the person has been formally advised in the past about the possibility of a s 501 decision
70. On 25 January 2007, a delegate of the Minister sent Ms Drollet a notice warning her. She says that, up until this time, she had no idea that she could be liable to removal from Australia. She gave evidence that a corrective services officer went through the letter with her. Although it is not clear how much she really took in at the time, she does not dispute that the letter was read and explained to her.
71. Ms Drollet’s most recent offences were committed after she received the Minister’s warning. This factor weighs in favour of cancellation.
Balance of considerations
72. Weighing all of the matters in evidence, I am satisfied that the discretion not to cancel Ms Drollet’s visa should be exercised in her favour. The seriousness of her criminal conduct cannot be minimised but there are mitigating factors which weigh in her favour. She has taken, at best, only tentative steps towards rehabilitation and there is ground for only guarded optimism about her prospects of successful rehabilitation. The risk that she will relapse is real and, if she does, there is a real chance that she could re-offend. However, her brother offers his support and she appears willing to take it.
73. While consideration of the protection of the Australia community tends to weigh in favour of cancellation, it is balanced equally by the fact that Ms Drollet has spent almost her whole life here and has, effectively, no ties to New Zealand. When the other factors are taken into account, I am satisfied they favour exercising the discretion in Ms Drollet’s favour.
I certify that the 73 preceding paragraphs are a
true copy of the reasons for the decision
herein of Senior Member TooheySigned: ......................[sgd]......................................................
Diana Weston AssociateDate of Hearing 26 October 2010
Date of Decision 2 November 2010
Solicitor for the Applicant Melissa O’Donnell
Counsel for the Applicant Nicholas Poynder
Solicitor for the Respondent: Greg Johnson
4
0
1