DSR and Minister for Immigration and Citizenship
[2013] AATA 341
[2013] AATA 341
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/1068
Re
DSR
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
Decision
Tribunal Mr P W Taylor SC, Senior Member
Date 27 May 2013 Place Sydney The decision under review is set aside and substituted with a decision the Applicant’s visa not be cancelled.
.............[sgd]...........................................................
Mr P W Taylor SC, Senior Member
Catchwords
MIGRATION – Class BF transitional (permanent) visa – cancellation – Direction no. 55 – character test – discretion to cancel visa – primary and other considerations – risk of re-offending – whether the risk of future harm is unacceptable – ties to Australia – interests of minor children – decision set aside
Legislation
Australian Citizenship Act 1948 (Cth)
Migration Act 1958 (Cth) s 501
Migration Reform (Transitional Provisions) Regulations 1994 (Cth)
Cases
Ayan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 126 FCR 152
Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313; [2000] FCA 1385
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566
Nystrom v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 420
Re Pemberton and Minister for Immigration and Citizenship (2009) 111 ALD 483; [2009] AATA 692
Pochi v Macphee (1982) 151 CLR 101
Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363
Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28
Re Toia and Minister for Immigration and Citizenship [2007] AATA 2078
Re Ung and Minister for Immigration and Multicultural Affairs (AAT 13387, 21 October 1998)Re Visa Cancellation Applicant and Minister for Immigration and Citizenship [2011] AATA 690
Secondary Materials
Ministerial Direction no. 55
REASONS FOR DECISION
Mr P W Taylor SC, Senior Member
27 May 2013
DSR has been in custody since September 2004, except for a 3 month period in mid 2005 when he was on bail. On 3 November 2005 he was convicted and sentenced for three offences involving the illegal use of a motor vehicle in September 2004. His effective sentence for those offences was imprisonment for 21 months, with a non parole period until 2 March 2006.
In August 2006 DSR was convicted of four further offences. They involved the theft of a truck and bobcat, their use in a “ram raid” on the Homemakers Supa Centre at Tuggerah on 6 August 2004, and the theft of an automatic telling machine from the Centre. The total sentence period for these August 2004 “ram raid” offences was 8 years, with a 6 year non parole period. The sentences were fixed to commence on 2 March 2006, at the end of the previously determined non parole period for the November 2005 convictions. Consequently, unless he is granted parole, DSR will remain in custody until 1 March 2015.
DSR has convictions for many other offences, and has previously served significant custodial sentences. A summary of the main sentences DSR has served since he turned 18 (in 1989), and the offences to which they relate, is set out in the First Schedule to these reasons.
DSR’s father was born in Newcastle, New South Wales in 1945 and is an Australian citizen. His mother is a citizen of the United Kingdom. She emigrated to Australia with her parents, and her eldest son, in about 1968. DSR’s parents married in 1969. In late 1970 they returned to the UK, with their first child and the rest of DSR’s mother’s family. DSR’s father had a job offer in the UK, his mother’s parents had apparently decided to return home. In early 1971 DSR’s mother fell pregnant, and he was born in September 1971. The pregnancy was complicated, and after DSR’s birth he required surgery to alleviate an hydrocephalic condition. After that surgery, and a necessary period of recovery, DSR’s parents returned to Australia in July 1972, with their two young sons.
Since 1972 DSR has spent his whole life in Australia. His only absences were short holidays when he was 12 or 13 years of age. In 1983 he made a one week visit to New Zealand and Noumea, for a school soccer trip. He also had a holiday in the United Kingdom, with his mother and brother, between July and August 1984. However the evidence of that trip came from passport records and from DSR’s father. DSR himself did not remember any such trip.
The “good character” of visa holders
DSR is a citizen of the United Kingdom. Because he is the son of an Australian citizen DSR would automatically have become an Australian citizen, without any regard to his character, if his birth had been registered at an Australian consulate before he turned 18 in 1990: see Australian Citizenship Act 1948 s 11 (until 1984) and s 10B (after 1984). But because DSR was born overseas, and there is no evidence of the registration of his birth at an Australian consulate, he is not an Australian citizen. Consequently, his entitlement to reside in Australian depends on holding a valid visa under the Migration Act 1958. At least since the introduction of regulation 4 of the Migration Reform (Transitional Provisions) Regulations 1994, and until the 27 February 2013 cancellation decision that is the subject of his review application to the Tribunal, DSR held a “transitional (permanent)” visa that entitled him to reside indefinitely in Australia.
The First Schedule to these reasons reveals that on about eight occasions since April 1992 DSR has been convicted of offences for which he received sentences of at least 12 months’ imprisonment. Because of them, and particularly the sentences imposed for his August 2006 convictions relating to the “ram raid” at Tuggerah, DSR has a “substantial criminal record”. That record precludes him from passing the character test in s 501(6) of the Migration Act 1958. Because DSR does not pass the character test the Minister has the power, under s 501(2) of the Migration Act 1958, to cancel DSR’s visa. On 27 February 2013, the Minister’s delegate made a decision cancelling DSR’s visa.
Ministerial Direction no. 55
Visa cancellation decisions made by a Ministerial delegate, and decisions made by the Tribunal on applications to review visa cancellation decisions, must comply with any Ministerial Direction made under s 499 of the Migration Act 1958. On 25 July 2012 the Minister gave the currently applicable direction - Direction no. 55.
The ultimate decision to be made in the exercise of the visa cancellation power is an impressionistic judgment as to whether the risk of future harm being caused by a non-citizen’s conduct in Australia is “unacceptable”: Direction no. 55 paragraph 6.2(1). That judgment is described in Direction no. 55 as requiring a “balancing exercise” involving consideration of the likelihood of future offending conduct, the potential harm that may be involved if the conduct occurs, and the extent to which, if at all, any risk of future harm “should be tolerated by the Australian community”: see Direction no. 55 paragraph 7(1)(b).
At a more prescriptive level, Direction no. 55 sets out the objective of the Migration Act 1958 (“to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens”). The Direction then declares various principles that are said to reflect community values and standards, and to be “of critical importance” in furthering the objective of the Migration Act. These principles must inform a decision maker’s determination whether the risk of future harm by a non-citizen is “unacceptable”: Direction no. 55 paragraph 7(1)(b). These critical principles involve propositions that:
(a)Australian residence by non-citizens is a privilege Australia has a sovereign right to determine to grant or withhold, and where the privilege is extended it carries with it an expectation of a resident’s behaviour being both lawful and respectful of Australian institutions;
(b)non-citizens who have committed serious crimes, especially those of a violent or sexual nature, should generally expect to be denied the privilege of Australian residence;
(c)“in some circumstances” a non-citizen’s previous criminal conduct may be so serious that any risk of similar future conduct is unacceptable and, “in these circumstances”, could be expected to result in denial of the privilege of residence, despite other strong countervailing considerations;
(d)Australia has a “low tolerance” for serious criminal conduct by visa applicants, limited stay visa holders, and by non-citizens who have only been in the Australian community for a short period;
(e)Australia “may afford a higher level of tolerance” in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age;
(f)any decision to withhold the privilege of residence should take into account the length of time that the person has made a positive contribution to the Australian community, and the effect that withholding the residence privilege may have on minor children and other members of the person’s immediate family.
In a further prescriptive instruction Direction no. 55 requires decision makers to “take into account” four primary considerations in decisions to cancel a person’s visa. Those matters are generally to be given greater weight than the other considerations permissibly relevant to the exercise of the visa cancellation power: see Direction no. 55 paragraph 8(4). Those primary considerations are:
(a)whether Australia has non-refoulement obligations in relation to the person;
(b)the protection of the Australian community from criminal or other serious conduct;
(c)the strength, duration and nature of the person’s ties to Australia;
(d)the best interests of minor children in Australia.
There is no suggestion that DSR’s return to the United Kingdom, as a result of the cancellation of his visa, would involve circumstances enlivening any Australian non-refoulement obligations. Consequently, the other three primary considerations are the principal matters that must be addressed in relation to his application to review the 27 February 2013 visa cancellation decision.
Extent of DSR’s offending conduct
The protective considerations involved in the exercise of the visa cancellation power require regard to the nature and extent of the non-citizen’s offending conduct, including the frequency of that conduct and whether or not it involves repeated offending. A starting point in that consideration will almost inevitably involve, because a person who fails to pass the character test will typically have been sentenced to at least 12 months’ incarceration, offences that merit description as serious. But that is a simple description which embraces a wide potential range of offences with different comparative degrees of seriousness, at least in terms of both the degree of harm potentially associated with them, and their particular materiality to the exercise of the visa cancellation power. This generality, and the need for discriminating evaluation of the nature of the non-citizen’s offending conduct, is recognised in Direction no. 55 paragraph 9.1.1(1), which emphasises the materiality of sexual and violent offences, offences against officials or vulnerable people, and immigration offences.
In addition to the nature of the non-citizen’s offending conduct, regard must be had to its extent. Frequent or repeated offences, and offences involving increased criminality or harm, are potentially very material to an informed assessment of the significance of the risk associated with a non-citizen’s future Australian residence.
The information in the First and Second Schedules to these reasons summarises the most significant instances of DSR’s convictions as an adult. It reveals that throughout his adult life DSR has, with lamentable regularity, committed many offences. They have ranged in character from breaking and entering to at least three instances of armed robbery and, of course, the “ram raid” offences in August 2004. On three occasions, during the comparatively infrequent periods when he was not in jail, he committed offences whilst he was on parole.
One of those occasions involved two 1998 armed robbery offences that occurred in February and May 1998, and 11 other offences, ranging from assaulting a prison officer to stealing vehicles and armed robbery of the Commonwealth Bank, that occurred between November 1997 and June 1998. In October 1999 the sentencing judge described the circumstances of the two armed robbery offences of which DSR was formally convicted. They involved the 17 February 1998 robbery of $19,000 from a Westpac Bank branch whilst armed with a replica pistol, and the 20 May 1998 $18,000 robbery of the Illawarra Mutual Building Society, whilst apparently armed with a real pistol.
The sentencing judge in 1999 understandably characterised DSR’s convictions for those matters as involving offences “of the most serious kind”. That view was reflected in the six year custodial sentence the judge imposed for the conviction. In so doing, the judge remarked upon DSR’s significant history of juvenile offending (involving a range of offences between 1987 and 1989 from breaking and entering to being armed with intent to commit a felony), and concluded that, extensive as it was, it did not involve offences “of anything like the gravity of the [armed robbery] offences”.
Notwithstanding the discouraging evidence that, at the age of 27 or 28, DSR had progressed from being a “persistent juvenile offender” to an adult offender who had committed even more serious offences, the 1999 sentencing judge noted that DSR did not have a violent nature. The judge accepted that the armed robbery offences “as bad as they were” had been carried out with a minimum level of violence - in the sense that the victims involved were frightened, rather than physically harmed. The judge also noted, based on information contained in a 12 October 1999 Pre-Sentence Report that DSR’s offending behaviour was associated with long standing heroin use, which had escalated after his release from jail in December 1997. The judge, and the Pre-Sentence Report, noted that DSR appeared to have little motivation to address the problem presented by his history of illicit drug use. Somewhat alarmingly, the Pre-Sentence Report concluded with a reference to DSR’s own statement of his concern at the possibility of continuing offending behaviour.
That subjective concern DSR is reported to have expressed in 1999 reflects the same conclusion that any objective analyst would then have been likely to arrive at after reviewing DSR’s history and circumstances. But there is evidence that, during the subsequent period of his incarceration between 1999 and November 2003, DSR took some constructive action towards rehabilitation. Indeed, in responding to an August 2003 Probation and Parole Service Pre Release Report, DSR declared that he had changed, grown up and matured, that he wanted to accept “the responsibilities that I have denied in the past”, and that he desperately wanted to be with his family and to be the person he was meant to be. A subsequent parole report of October 2003 accepted that there had been some positive change in his attitude and prospects of rehabilitation. DSR was in fact granted parole, in early November 2003. Following his release on parole in November 2003 DSR dutifully complied with his reporting obligations, and was employed, despite reporting difficulty in being able to find any other full time job, in the security business his father conducted.
It is against this background that the August 2004 and September 2004 offences have a particular significance. As I have briefly described in paragraph 2 above, the August 2004 “ram raid” involved the theft of a truck and a caterpillar bobcat, their use in breaking into a shopping centre complex at Tuggerah, and the theft of an ATM machine. The ATM contained approximately $44,000, none of which was ever recovered. The estimated total cost of the damage done to the stolen vehicles, and the shopping centre complex itself, was in the vicinity of $100,000.
The 2006 trial evidence included security camera footage that showed two offenders unloading the bobcat from the truck. They put on hard hats and then one of them drove the bobcat through the glass doors of the Centre. It was then used to remove the ATM. Subsequently, DNA evidence linked DSR to a hard hat found in the stolen truck and to material on one of the bobcat levers. But he denied any involvement in the “ram raid”. The defence he had relied on at his 2006 trial was that he had lent the hard hat to someone else, that the DNA sample on the bobcat lever had possibly been transferred from the hard hat, and that he had no involvement in, and was not responsible for the offences. In his evidence at the 2006 trial DSR claimed he had been at a birthday party for one of his step-daughters. This “alibi” was supported by family members and was also corroborated by time stamped photographs taken at the birthday party. In a September 2006 pre-sentence interview after his conviction and in at least one parole interview (in December 2012) DSR maintained his innocence of the “ram raid” charges. He took the same position in the course of his evidence in the present proceedings. Part of this paragraph has been omitted from the publicly available version of the Reasons.
Where a person has been found guilty, after a contested criminal trial, they at least face a “heavy onus” in establishing a view of the facts that is inconsistent with the findings necessarily involved in the conviction: Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313; [2000] FCA 1385 at [41] - [45]. Part of this paragraph has been omitted from the publicly available version of the Reasons.
If DSR really had not had any culpable involvement in the “ram raid” it is an extraordinary proposition, and one I do not accept as credible, that he would have accepted the risk of conviction, and then endured the consequential substantial custodial sentence for the 2004 “ram raid”, without seeking to disclose the identity of the real offenders. That course of conduct saw DSR arrested in August 2005 and removed from the family life to which, in his 2003 letter responding to a recommendation against being granted parole, he had professed a strong motivation to return. In August 2006, after more than a year in custody, by continuing to withhold the identity of the real offenders, DSR accepted the risk of a prolonged custodial sentence.
Paragraph 24 has been omitted from the publicly available version of the Reasons.
Paragraph 25 has been omitted from the publicly available version of the Reasons.
DSR’s evidence reveals his claim that, on two occasions he accepted either the certainty or the risk of substantial custodial sentences, for offences in relation to which he had no culpable involvement, rather than identify the person really responsible for them. I regard those claims as lacking credibility and I do not accept them. I particularly do not accept DSR’s claim in relation to the August 2006 “ram raid” convictions. In rejecting that claim I note the sentencing judge’s remarks in May 2007 that he was not surprised by, and agreed with, the jury’s guilty verdict. Part of this paragraph has been omitted from the publicly available version of the Reasons.
In those circumstances, DSR’s involvement in the August 2004 “ram raid”, and the September 2004 reckless driving of the stolen truck, particularly the former, evidence a continuing incapacity and unwillingness to conduct himself lawfully whilst at liberty. As the sentencing judge remarked, the circumstances of the August 2004 “ram raid” offences necessarily involved a significant degree of deliberation and planning. DSR’s commission of those offences is rather inconsistent with the notion that he had successfully rehabilitated himself prior to his release in 2003 and could then be relied upon to behave lawfully. As the 2007 sentencing judge remarked, DSR’s total criminal record demonstrated that the 2004 offences were “not an aberration, but represent a continuing attitude disobedience to the law and an escalation in the degree of seriousness” of DSR’s offending behaviour. That record, the sentencing judge thought, deprived DSR of any justifiable claim to leniency, and reflected poorly on his prospects of rehabilitation.
DSR’s efforts at education and rehabilitation in jail
During his various periods of imprisonment DSR made some effort to undertake rehabilitative and educational programs. A table identifying his participation in various courses, and certificates of attainment, across a span of years from 1998 to 2013 was provided at the hearing. The list is reasonably impressive. A broad summary, identifying the year of activity and (in parenthesis) the number of course certificates he obtained, is as follows: 1998 (1), 1999 (2), 2000 (7), 2001 (3), 2002 (12), 2005 (2), 2006 (2), 2007 (1), 2008 (1) and 2013 (1). In addition he completed a 12 week therapeutic residential course styled “Lifestyles unit program”, although the date of that course was not the subject of evidence. As the summary suggests, the most active period of DSR’s educational and rehabilitative activities occurred whilst he was incarcerated at the Grafton and Glenn Innes Correctional Centres between March 2000 and December 2002 - before his release on parole in November 2003. Consistent with that apparent level of constructive energy, his prison records reveal no instances of breaches of prison discipline in that period after November 2000 and a progressive improvement in his prison classification.
That favourable history of DSR’s conduct immediately preceding his release in 2003 is also reflected in the August 2003 Probation and Parole Service Pre Release Report. That report noted that he had maintained good conduct during his current sentence, in contrast to his previous period of incarceration. Nevertheless, it was a matter of concern that DSR denied that his prior drug use was a contributing factor in his previous offending. As the report noted, it was difficult to reconcile that denial with the reality of the nature of his previous offences and his previous poor response to community supervision.
In the months following his release on parole in 2003, and unlike the default which occurred almost immediately after his previous release on parole in 1997, DSR complied with his parole reporting obligations. In addition, although he conceded in the course of his evidence in the present proceedings that his 2003 disavowals of having a heroin problem were untrue, he claimed that he had not used heroin for some time before his release in 2003 and did not use it during the period when he was on parole. He said that whilst he was on parole he was a participant in the methadone program and was supplied with oral methadone at the Wyong Hospital. It is at least consistent with these claims that DSR’s prison record reveals no instances of adverse drug tests between April 1999 and September 2008. Thereafter, there was another occasion in January 2010 in which DSR failed a urine test. There were several subsequent occasions in which he did so during 2011 and the early part of 2012.
DSR acknowledged the recurrence of his heroin use in jail during 2011. He attributed that to his distress at the drug overdose death of a young prisoner he had befriended, and in relation to whom he claimed to have been performing a role as mentor. In order to cope with the distress the young man’s death caused, DSR had returned to the illicit use of both heroin and an anti-anxiety medication. DSR claimed that he had not used heroin since early 2012, and had returned to participation in the methadone program available to him in jail.
This history of strong association between DSR’s previous offending conduct, and his concededly long-standing heroin use, points ambiguously to the risk of his re-offending. His apparently commendable record between 2000 and 2003 suggest a measure of insight and control, albeit within the regulated environment of prison discipline. On the other hand, if DSR’s denial of heroin use in the period he was released on parole in late 2003 and early 2004 is correct, then the August and September 2004 offences were, and atypically, unrelated to his illicit drug use. And, in any event, DSR’s more recent resort to illicit drug use in prison deprives one of real confidence about his future conduct.
I am inclined to the view that DSR’s illicit drug use has been a major contributing factor to his past criminality, and that it was more likely than not to have been a factor that contributed to his participation in the August and September 2004 offences. Consistent with that view, Dr Ashkar (to whom I refer below) reported taking a history from DSR in which he identified heroin use as “most certainly” a factor in the August and September 2004 offences. DSR did not dispute that he may well have given such a history to Dr Ashkar, but he nevertheless claimed that it was inaccurate, and had resulted from some confusion, on his own part, in the course of providing information to Dr Ashkar. I am not satisfied that I should accept DSR’s suggestion about the factual error in this aspect of Dr Ashkar’s history. If DSR was, as he claimed, neither implicated in the August and September 2004 offences, nor abusing heroin at the time, it is difficult to accept that he could have mistakenly conveyed contrary information to Dr Ashkar.
In the result, DSR’s jail history demonstrates, particularly in the period before his release in 2003, some reason to believe in both his motivation and his capacity to participate lawfully in community life. It also demonstrates, however, his vulnerability in being at risk of returning to illicit drug use, and associated criminality, when confronted with stressful periods, and particularly the stress of making his way in the community outside the prison environment.
Expert assessment of DSR’s risk of re-offending
Although DSR’s non parole period expired on 1 March 2013, he has not been granted parole. In Pre-Release reports in December 2012 and February 2013, the NSW Probation and Parole Service partly commended DSR for his educational and employment activities in jail, but also remarked that he displayed a lack of ability to think about coping outside jail, reluctance to address grief issues, and lack of self esteem. The December 2012 Report referred to the results of a “standardised risk/needs instrument” and considered that DSR was suitable for “a medium to high level of intervention … commensurate with the assessed risk and criminogenic needs”. The Report concluded that he would require “a medium level of surveillance and monitoring”. Because DSR’s risk factors for re-offending included both his long period of custody and his poor employment history, the reports recommended that DSR was not suitable to be released until he had experienced a gradual reintegration into community life, by participating in work release rehabilitative programs.
Dr Ashkar is a consultant forensic psychologist who gave evidence in support of DSR’s review application. Dr Ashkar reviewed relevant parts of DSR’s history including the 2007 sentencing remarks, previous psychological assessments that had been undertaken by others, and information detailing DSR’s past offences and sentences. He also interviewed DSR and some members of his family. They included his father, his wife and one of his step-daughters.
Dr Ashkar’s ultimate opinion was that DSR’s risk of re-offending, both generally and in relation to violent offences could be reasonably described as “moderate”. More specifically he characterised the risk as “non-trivial and substantial”. The starting point in Dr Ashkar’s assessment was DSR’s criminal record and Dr Ashkar’s background knowledge that persons with similar offending profiles would be characterised as having at least a “moderate” risk of re-offending if they were formally assessed using analytical tools such as the Level of Service Inventory - Revised (“LSI-R”). Dr Ashkar explained that the LSI-R assessment tool was used to compare the relevant profile of a particular individual with the historical incidence of re-offending reported by a cohort of individuals assessed as being appropriately similar. Against that background knowledge of both DSR’s record and the nature of the LSI-R assessment tool Dr Ashkar thought it was unnecessary for him to attempt to administer any similar formal assessment.
Dr Ashkar went on to explain that his opinion, that DSR’s current risk of re-offending was “non-trivial and substantial”, was a judgmental assessment that took into account DSR’s particular circumstances. It was plain from Dr Ashkar’s explanation that he considered DSR’s risk of re-offending was somewhat less than what might have been indicated by use of the LSI-R assessment tool alone. One factor that inclined Dr Ashkar towards that conclusion was DSR’s current age. Dr Ashkar reported that many studies demonstrated significantly declining rates of re-offending once individuals passed 40 years of age. Another relevant consideration was the availability of protective factors such as a supportive family environment, and the individual’s own commitment towards rehabilitation. A third consideration was Dr Ashkar’s view that, despite DSR’s past history of substance abuse, in more recent years that drug use had been more controlled. In reaching that opinion Dr Ashkar acted on the basis that the August 2004 “ram raid” offences were certainly directly related to difficulties DSR had with his heroin use at that time. However, he accepted DSR’s account of his subsequent drug use during his incarceration since 2005. That account included at least some reduced resort to the range of drugs that DSR had reported using previously. However, Dr Ashkar appropriately conceded the obvious point that it was difficult to make any firm assessment about the significance of these matters because DSR had been incarcerated in a very controlled environment.
With the benefit of this explanation from Dr Ashkar, it is very clear that his opinion that DSR’s risk of re-offending is “non-trivial and substantial” is his ultimate opinion. It is an opinion that gives weight to the various potentially ameliorating considerations he identified. These include DSR’s own professed determination to rehabilitate himself, and his apparent family support. Nevertheless, Dr Ashkar’s opinion is similar to the views that have been consistently expressed in various probation and parole service reports, including the most recent reports of December 2012 and February 2013. Apprehensions about DSR’s poor prospects of entirely avoiding future re-offending were expressed by the sentencing judge as far back as 1999, in relation to the range of offences, including armed robbery, for which he was then convicted.
The proper conclusion to draw from the totality of this material is that DSR presents a real and significant risk of re-offending. That is a primary consideration to take into account. It is a consideration that weighs heavily in favour of the cancellation of DSR’s visa, principally because of the range and seriousness of the offences evident in his criminal record.
Other assessments of DSR’s risk of re-offending
DSR’s father and wife both expressed their strongly held views that he was unlikely to reoffend. DSR’s father’s assessment was that DSR had really been alarmed and distressed at the prospect that he could be removed from Australia. DSR’s wife thought she could detect in her husband a realisation that he had been wasting his life and that he had to commit himself to her, to their relationship and to his family. DSR’s wife at one point also suggested that the 2011 drug overdose death of DSR’s young inmate friend had caused a profound change in his outlook. I am unpersuaded that this event, despite the sadness which it may have caused, provides a reasonable or accurate basis from which to postulate favourably about the unlikelihood of DSR re-offending. He has long experience of illicit heroin use. The death of this young man is not the first occasion on which people close to DSR have died because of a relevant connection with the illicit use of heroin. I am unable to identify in the evidence any reason, other than mere assertion, as to why this event can realistically be relied on as being in any sense probative of a significantly reduced likelihood of DSR re-offending.
The hopefully confident assessment of DSR’s prospects that his father and wife have made, may prove in time to be justified. However, it is not an assessment to which I should defer, in preference to the other material to which I have already referred. DSR’s incarceration since 2005, given its length, and the associated hardships it has inflicted upon both him and his immediate family members, has no doubt been a salutary admonition to him. But it is of essentially the same kind as his previous custodial sentences. I am unable to accept the view that there is no significant risk of DSR re-offending in the future.
Conclusion on the risk of re-offending
Viewed objectively, DSR’s long history of repeated offending makes it difficult to resist the conclusion that there is a real and significant risk he will reoffend during any future period of liberty in the Australian community. The reasons to regard that risk as real, and significant, include his limited educational qualifications, his limited work experience (other than the opportunities that have been available to him whilst in custody), his long history of illicit drug use and the very long total period during which he has been incarcerated over the last 23 years since October 1989.
DSR’s personal background
DSR left school soon after he turned 14, probably some time around September 1985 and somewhere between years 7 and 9. His time at school had been characterised by truancy, the use of illicit drugs and disruptive behaviour. He started smoking cannabis at the age of 12 or 13. In his mid teens he started using amphetamines, in his late teens he started using LSD. By about 1990, when he was 19 years of age, he had become “hooked” (to use his own words) on heroin.
After he left school DSR had various periods of employment – as an apprentice spray painter, in a crash repair business, and as a painter. But he has not had any real consistent employment in more than a decade.
In about 1990, following some ankle surgery, DSR participated in a methadone program. Throughout the period from about 1990 to 1998 he continued to use intravenous heroin, both during periods when he was at liberty and whilst he was in custody. Following his return to custody, in about June 1998, DSR was again a participant in a methadone program. He remained on that program until his release on parole in November 2003. He says that during that five year period he was substantially “clean” and only used intravenous heroin on a couple of occasions.
After his release on parole in late 2003, DSR continued to participate in a methadone program. That went on even after he was arrested in September 2004, and continued when he began his current period of incarceration in August 2005. In fact, DSR claims to have refrained from any drug use, other than as a participant in a methadone program, until 2011.
In 2011, whilst still serving his current sentence period, DSR again indulged in intravenous heroin use. He claims this was triggered by his distress over the death in jail of one of his friends. He also claims that he stopped illicit use of heroin in early 2012, and that he has been back on the methadone program since then.
DSR’s Immediate family ties in Australia
DSR is the second of four natural siblings. He also had an elder half brother, who was his mother’s eldest child. But that brother had little contact with DSR and lived most of his life in the United Kingdom. In the early 1990s he came to Australia and lived with the family for a time. But by some time towards the end of 1991 DSR had left his parents’ home and was living with his future wife. Within a short period the half brother had returned to the UK. He died there in 1996, at the age of 33. This comparatively limited period of possible direct contact between the two men suggests that the degree of connection between them was, most probably, comparatively slight.
DSR identified as his youngest brother, a young boy his parents adopted (or fostered) in about 1982. He died a few years later (at the age of 15) as the result of injuries he suffered when he was thrown from a vehicle that crashed whilst being pursued by police.
DSR’s parents are both in their 60s. They have been married for over 40 years. They spent most of their married life living in suburban Sydney, but since about 2008 they have lived on the Central Coast. They live near their daughter and daughter in law. They are self caring for most of the ordinary activities of daily life, but DSR’s mother has diabetes and severely deteriorating eyesight. DSR’s father has a serious cardiac condition, for which he has undergone surgery on several occasions. He requires some assistance, at least to bathe, and also to do tasks such as putting out the garbage bins and go shopping. Assistance of those various kinds is normally provided by one or other of his wife, his daughter or a close friend.
DSR does not provide his parents with any financial support. But he professes to have a good relationship with them. His father gave evidence confirming that there is a strong bond between them. Both DSR’s parents were frequent jail visitors in the period of his previous incarceration up until November 2003. In more recent years their visits have been rare. This is particularly the case for DSR’s father, whose deteriorating health has made travelling too difficult to manage. But DSR’s father said that his son has been a regular letter writer and telephone caller. DSR’s father is clearly committed to supporting his son, including by offering him employment, either in a car spare parts and restoration business he conducts, or with the assistance of a friend who operates a lawn mowing business. DSR’s father said it would kill him and his wife if DSR had to leave Australia and go to the United Kingdom. He expressed a great deal of confidence that DSR would succeed in establishing himself in the community after his release from jail. That confidence was based on his assessment of a greater sense of maturity in DSR, a full appreciation of the risk of visa cancellation, and realisation of his parents’ deteriorating health. And in that regard, DSR himself expressed a desire, when he is released from custody to attempt to make up for contact with his parents that had been lost by his prolonged periods in custody. He said he wanted to do that and to provide his parents with such care as they required.
DSR’s mother flew out of Australia in February 2013, just before the visa cancellation decision, and is not booked to return until August 2013. She is in the United Kingdom caring for a sick relative. She did not give evidence in the present proceedings, but she provided a letter in support of DSR’s review application. In that letter she described him as very family minded and as “a very important part of our family”. She illustrated that opinion by describing the supportive encouragement he had provided to some of his nieces and nephews.
DSR’s surviving elder brother is about 43 years of age, and lives on the Central Coast of NSW. They have not lived together for over 20 years, and have little social contact. They do not really communicate. Their few contacts over many years have been limited to occasional encounters at their parents’ home, and in more recent years some very occasional jail visits. Their relationship is civil, but not warm.
DSR’s younger brother is about 40 years of age. He recently went into custody and, like DSR himself, has served many jail sentences. However, DSR said that his brother had not been in jail for several years before his recent current incarceration. DSR says he has a lot to do with his brother, and gave some limited evidence of their interaction in 2004, when DSR was last at liberty on parole. I note that there are only rare records of DSR’s younger brother having visited him in jail in the period since August 2005. DSR claimed to be on good terms with his brother’s wife. He said she had occasionally brought some of her children to visit him in jail. This evidence was limited and, in my assessment, of little weight in supporting DSR’s application. Whilst the fact of the relationship between DSR and his younger brother was probative of the existence of a relevant family tie, the potential significance of that relationship was someone undermined by knowledge of the brother’s substantial history of criminal offending. Indeed, the prospect of DSR’s younger brother being a potentially adverse influence was acknowledged in certain evidence that DSR’s sister gave. That evidence suggested DSR’s younger brother does not share his professed motivation to rehabilitate and play a constructive role in the community.
DSR’s sister is about 38 years of age. She has two teenage children, one of whom lives with his father in Darwin. Her other child is a 17 year old daughter, who lives with her. DSR’s sister gave tearfully emotional, but impressive, evidence in the present proceedings in support of her brother’s review application. DSR’s sister lives near their parents on the Central Coast. She described the burden she had borne, as a result of the periodic incarceration of two of her brothers, and the absence of involvement with her eldest brother. That burden had included the support she provided to their parents over a period of many years. This involved driving them to visit DSR in prison and, particularly in the more recent years, with other more general domestic assistance.
DSR’s sister also described her difficulties in coping with her own problems. These included serious behavioural issues as a younger person, a failed relationship, an attempted suicide some years ago, and bringing up her daughter as a single mother. She described her own emotional needs, and the extent to which DSR had fulfilled them from time to time. She emphasised the support he had provided during her pregnancy, when she had been abandoned by her partner, and the subsequent birth of her daughter. She deeply lamented, and in some respects resented, DSR’s lost years of incarceration. DSR’s sister described him as a good person who could, in her belief, make his way lawfully in the community. She expressed a real sense of alarm and despondency, the apparent depth of which is difficult to convey, at the prospect of his being required to leave Australia.
The anguish that DSR’s sister expressed, in what I perceived as a compelling way, could have provided a reason to apprehend difficulty and distance in their relationship. But she claimed the contrary was the case. She expressed a deep appreciation of him. She cited the positive influence he had on her daughter. She expressed a strong desire to have him as a close and continuing part of her life.
I accept that DSR has strong ties to his parents and sister. I accept also that he is genuinely motivated to take his place as a responsible member of the family and to assist his parents and sister to the best of his abilities, and in attempted atonement for his past and considerable shortcomings.
DSR’s connections with his wife’s family in Australia
DSR first met his future wife in about 1989, when he was in custody for other offences. After his release from prison in about July 1990 he sought her out. Sometime later, probably in the latter part of 1991, he moved out of his parents’ home and they began their domestic relationship - fragmented though it has been. Initially they lived together on the Central Coast, but later, some time after they married in March 1996, they moved to Sydney. This move was so that DSR could be closer to his parents. Some time later, perhaps after DSR’s parents relocated, DSR returned to live on the Central Coast.
The details of DSR’s periods of liberty and incarceration since July 1990 are set out in the Second Schedule to these reasons. Those details readily reveal the comparatively few periods during which DSR and his wife have cohabited. Since their marriage in 1996 they have not lived together for more than a few months at a time. Even before 1996 the longest period in which they appear to have cohabited was something less than two years between 1993 and 1995.
This fragmented matrimonial background, punctuated by incidents of serious criminality, and involving a long history of heroin abuse, provides ample reason to be profoundly sceptical of the justification for attaching any real significance to the relationship in the exercise of the visa cancellation power. Indeed, I put the substance of that proposition to DSR’s wife in the course of her evidence. She frankly conceded that, because of her husband’s prolonged period of absence their relationship could appear to an outsider to be nothing more than a “Clayton’s marriage”. Nevertheless, she tearfully described DSR as her “soul mate”, a man who had earned the affection and respect of her daughters and who she yearned to have the capacity to see in himself the qualities which she and the other members of her family saw in him. DSR’s wife tearfully said that she did not know what she would do if DSR’s visa cancellation decision was affirmed. She apologised for breaking down, and explained it was a topic too fraught with emotion for her to bring herself to consider.
This kind of cathartic spousal affirmation is, in some respects an unsurprising, and readily understandable, reaction to the crisis of a visa cancellation decision. But DSR’s wife’s emotion charged evidence in support of her husband’s review application carried considerable weight. DSR’s wife is an intelligent and capable woman. She has a long history (more than two decades) of employment as a youth worker, child support worker and family support counsellor. I would infer that she is used to seeing families in crisis, understands the risks to stability in family relationships, and highly values family cohesion. That inference appears to be borne out by her own accomplishment in raising her five daughters, two of whom gave evidence in the proceedings and equally impressed me as well educated, accomplished, intelligent and articulate young women. Against this background, the fact that DSR’s wife endorses her husband as a positive and beneficial influence in her family, and wholeheartedly desires him to be a permanent physical presence in that family environment, is an eloquent and persuasive piece of evidence demonstrating the strength and beneficial value of his ties to at least this small segment of the Australian community.
Moreover, there is some objective evidence tending to substantiate the proposition that DSR’s wife’s endorsement of her husband, and the similar endorsement by the two of her daughters who gave evidence in the proceedings, is much more than a merely cathartic reaction to a crisis. The records of prison visits to DSR throughout the period from late 2004 up until the present time consistently show very regular visits by DSR’s wife and four of her daughters. Those visits have been to correctional centres at Parklea, the Metropolitan Remand and Reception Centre, Cessnock, Wellington, Junee and Silverwater. The fact that these visits have been sustained, albeit with some variations in frequency, over a nine year period bespeaks strong family ties, and ties maintained despite considerable difficulty.
DSR’s wife’s 33 year old daughter gave evidence in the proceedings. She described DSR as being the father figure in her life and those of her sisters. He was the person he said she would go to about troubling things that she did not want to discuss with her mother. She said DSR made her and her sisters feel comfortable. He was constructive and always encouraged the girls to think through the available options in any difficult situation.
DSR’s wife’s 27 year old daughter also gave evidence. She recalls DSR taking her to her first day at kindergarten, when she was about five years old. She, too, described him as a father figure. She described him as very loving and committed to the family.
DSR’s wife also spoke of the affectionate regard that her elderly father had for DSR. Her father is an elderly Aboriginal man of few words, and not in good health. He did not give evidence in the proceedings, but he did provide a letter in which he vouched for DSR’s respect and affection with his family. He said he loved DSR as his own son. He said he would be deeply upset if DSR was unable to stay in Australia.
Minor Children
DSR has no children of his own. He has some nieces and nephews, but there is no evidence of his relationship with any of them, other than his sister’s daughter.
DSR’s niece is 17 years old and a year 11 student. She gave evidence in the proceedings. She said her father lived in Darwin with her half brother. She described having grown up with no father as part of the household. She said that DSR had always been there for her, fulfilling that father figure role. He maintained contact with her, despite his incarceration, through letters and phone calls, and occasional jail visits. She tearfully described him as her uncle and someone who had been a good influence in her life. She said she had dropped out of school some time ago and it was DSR who had influenced her to go back to school and complete her education. She was obviously fond of, and loyal to, DSR.
All of DSR’s step-daughters are adult, and between about 27 and 37 years of age. Four of them have children of their own. The seven grandchildren are between 1 and 15 years of age. The two youngest children were born within the last three years, whilst DSR has been in jail. The two next eldest grandchildren were less than two years of age when DSR was last free in the community. The three eldest grandchildren were between 4 and 7 years of age when DSR was last taken into custody in August 2005.
One of the grandchildren is a 15 year old young man who provided a supportive letter in the present proceedings. The young man’s age, when compared to the periods of DSR’s freedom and incarceration recorded in the Second Schedule to these Reasons, signifies that he could only have had any presently relevant direct interaction with DSR (other than on jail visits) for short periods in about 2003 (when he was five) and 2005 (when he was seven years old). The jail visit records indicate that he has seen DSR in jail on a few occasions over the period between 2005 and 2013. Notwithstanding this irregular and limited contact the young grandson describes DSR as “the biggest and most positive impact” on his life. He claimed to idolise him. The young man has apparently had some difficulties with his own father, with whom he neither lives nor has a good relationship. He describes DSR as “pop”. He described some “deal” he said he had negotiated with DSR where they would both do their best to stay out of trouble and, when DSR was able, to spend time together. However, he noted that as part of this “deal” DSR had warned him that “I have to [bear] with his mistakes”.
It is apparent from this material, limited though it is, that DSR has the capacity to inspire affection and respect in at least some of the younger members on both sides of his family. Whilst those are not matters to be ignored, or even lightly dismissed, they are on the periphery of relevant considerations. DSR does not fulfil any parental role in relation to any minor children, nor is it likely that he will be required to fulfil such a role. His positive impact has been that of an encouraging uncle/grandfather. He will have a similar capacity to continue to fulfil that role even if he is required to leave Australia. Such a departure may well be a cause of disappointment, but beyond that kind of disappointment there is insufficient evidence to conclude that either the best interests of his young grandson, or his niece, would be materially furthered by his continued residence in Australia. I conclude therefore that the best interests of minor children in Australia do not merit significant weight in the exercise of the power to cancel DSR’s visa.
The impact of visa cancellation
The primary considerations which Direction no. 55 mandate must be taken into account are not the matters of exclusive relevance to the exercise of the visa cancellation power. Paragraph 8 of Direction no. 55 requires regard to both the primary and “other considerations” that are relevant to the particular case. It is implicit in the concept of “primary” considerations that they should “generally be given greater weight than the other considerations”: Direction no. 55 paragraph 8(4). But the generality of that proposition obviously accommodates the possibility of situations where “other considerations” may properly be regarded as determinative factors in the exercise of the visa cancellation power.
In the circumstances of the present review application only two of the “other considerations” merit significant attention. These are, the effect of cancellation on the other members of DSR’s family, and the difficulties that DSR would be likely to face in attempting to establish himself in the United Kingdom: Direction no. 55 paragraph 10(1)(a) and (d).
As a lifelong Australian resident forced to go to the United Kingdom to establish himself as a law-abiding citizen at the age of 44, DSR would inevitably face considerable difficulty. Although it would appear likely that his mother has retained some family connections in the United Kingdom, their nature and extent was not the subject of any evidence. DSR would be a complete newcomer and, so far as the evidence reveals, alone. He would have no familiarity with the ordinary operation of government and welfare services, or even the mundane activities of daily life in a new community. However, the United Kingdom is a culturally similar environment to the predominantly Anglo-Saxon community of DSR’s formative adolescence. As a literate and intelligent person in a culturally similar English-speaking society the hardships he would encounter, whilst real, would not be so significant as to outweigh the primary considerations, if the proper assessment of them required the conclusion that DSR’s visa should be cancelled.
On the other hand, it is readily apparent from the earlier discussion of DSR’s family ties that the cancellation of DSR’s visa would have a very significant adverse effect on immediate members of his family, particularly his parents, his wife and younger sister. That adverse effect may be limited to the intangible hardship of disappointment in not having him in close proximity. (So far as evidence reveals DSR has never been in a position to make any constructive financial contribution to the other family members. His ability to do so in the future is problematic.) However the evidence of DSR’s father, wife and sister, persuades me that their disappointment at his removal from Australia, if it was to occur, would be profound. I am inclined to think the same conclusion is appropriate in the case of at least two of DSR’s step-daughters.
In those circumstances, I consider that the hardship involved in DSR’s removal from Australia is a significant consideration which weighs in favour of setting aside the visa cancellation decision. However, I would not regard that element of hardship as determinative if the proper characterisation of DSR’s risk of re-offending was otherwise “unacceptable”.
Assessing the “acceptability” of DSR’s risk of re-offending
I have already expressed the conclusion that DSR has a significant risk of re-offending. The critical question is whether that significant risk should be regarded as “unacceptable” in the totality of the particular circumstances that apply to DSR.
A specific element of anxiety in evaluating the potential acceptability of DSR’s risk of re-offending is the weight that can, and should properly, be given to the circumstance that he has, in practical reality, spent the whole of his life in Australia and is the natural child of an Australian citizen father who himself has a significant lineage of Australian citizenship. Indeed, there is a factual basis for characterising DSR’s formal status as a United Kingdom citizen as accidental, partly contributed to by his mother’s inability to return to Australia during a difficult pregnancy, and partly also attributable to his parents’ lack of awareness that the formality of registration at an Australian consulate was a pre-requisite to Australian citizenship in his particular circumstances.
The principles contained in paragraph 6.3 of Direction no. 55 include the proposition that Australia has a “low tolerance” of any criminal or other serious conduct by people who have been participating in the Australian community for only a short period of time. But the principles also contain the proposition that Australia “may afford a higher level of tolerance” in relation to a non-citizen who has lived in the Australian community for most of their life. This permissive generality whilst plainly stated, is not the subject of any further explanatory exegesis within Direction no. 55.
Previous decisions involving broadly analogous circumstances, although governed by Ministerial directions with materially different wording from Direction no. 55, have rejected the notion that the proper exercise of the visa cancellation decision should be influenced by the notion that Australia owes a non-citizen some kind of obligation to continue the privilege of Australian residence where that residence has involved either the predominant part, or the whole, of their minority. For example, in Re Toia and Minister for Immigration and Citizenship [2007] AATA 2078 at [12] and Re Ung and Minister for Immigration and Multicultural Affairs (AAT 13387, 21 October 1998) at [50]-[52] the Tribunal emphasised the protective object of the Migration Act, and its adoption in the then current Ministerial Direction, as the overriding consideration in the exercise of the visa cancellation power.
These decisions, the generality of the visa cancellation power in Migration Act 1958 s 501(2), and the merely permissive principles in Ministerial Direction no. 55, provide no temporal restriction on the exercise of the visa cancellation power by reference to either the age of the person concerned when they arrived in Australia, or the period of their residence. In that respect, the generality of the visa cancellation power stands in contrast to the more limited deportation powers contained in Migration Act 1958 ss 200 – 203. Those powers, with the exception of various offences relating to treason, sabotage and mutiny, and adverse security assessments, are confined to non-citizens who have been convicted of offences after periods of Australian residence of less than 10 years.
On the other hand, there have been many examples of cases where decision-makers have expressed “disquiet” at the prospect of a person being removed from Australia not only in circumstances where it has been their only significant place of residence, but also where their removal materially disrupts family relationships. For example, in Pochi v Macphee (1982) 151 CLR 101 at 115 Murphy J described as “inhumane and uncivilised” the prospect of ordering the deportation of a person in circumstances where doing so would result in the breaking up of families.
The circumstances involved in the decision in Nystrom v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 420 bear a striking similarity to those in the present case. Mr Nystrom was born in Sweden whilst his parents were on holiday seven years after they had permanently migrated to Australia. His parents had brought him back to Australia at less than one month of age and he had lived here ever since. In expressing their deepest reservations about the propriety of exercising the visa cancellation power in those circumstances Moore and Gyles JJ said (at [1]):
… The appellant has been entirely brought up in Australia. It was only happenchance that he was not born here. He is only an “alien” by the barest of threads. However, if the decision under challenge here stands he will be deported to Sweden and permanently banished from Australia. That result causes us a similar sense of disquiet to that expressed by Spender J in Shaw v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 142 FCR 402, particularly at [2] — [5] and Sackville and Allsop JJ in Ayan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 126 FCR 152 at [1] and [64] — [79] respectively. It suggests that administration of this aspect of the Act may have lost its way.
Later in their reasons for judgment Moore and Gyles JJ returned to the same topic. Their Honours said (at [26]):
[26] What is more, it is timely for there to be a review by the Minister of the proper approach to matters such as this. That would be very likely to yield a different result in this case. In our opinion, it is difficult to envisage the bona fide use of s 501 to cancel the permanent absorbed person visa of a person of over 30 years of age who has spent all of his life in Australia, has all of his relevant family in Australia by reason of criminal conduct in Australia so leading to his deportation to Sweden and permanent banishment from Australia.
In so far as Moore and Gyles JJ perceived that the restricted the scope of the deportation power in Migration Act ss 200 – 203 precluded the exercise of the visa cancellation power in similar circumstances, that view was inconsistent with previous authority, and was conclusively rejected in the subsequent decision of the High Court in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566. But the High Court appeal was principally concerned with the availability of the visa cancellation power, rather than the appropriateness of its exercise, in the particular circumstances. Nothing said in the High Court reasons detracts from the expressions of “disquiet” articulated by Moore and Gyles JJ. Indeed, Emmett J had dissented in the Federal Court on the power question, and it was his dissenting reasoning that was upheld in the subsequent High Court appeal. But Emmett J had expressed similar disquiet about the possibility that a person who had spent the entirety of their formative years in Australia could be the subject of a visa cancellation decision. His Honour said this (at [49]):
I have had the advantage of reading the reasons of Moore and Gyles JJ for concluding that the appeal should be upheld. While I do not agree with that conclusion, I share the disquiet expressed by their Honours concerning the circumstances in which a man who has spent all of his life in Australia and who has no knowledge of the Swedish language will be removed to Sweden and banished from Australia because of what must be characterised as an accident of history and an oversight on the part of his parents. The material before the Court indicates that the appellant is a thoroughly unpleasant man having been convicted of serious and odious crimes. However, that is irrelevant to the question that has been raised concerning the validity of the Minister’s decision.
In Ayan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 126 FCR 152 the question for determination was whether or not adequate reasons had been given for a decision to cancel the visa of a young Turkish citizen whose criminality was related to heroin addiction, and who had lived in Australia since he was six months old. His family members were either Australian citizens or permanent residents. Allsop J, whilst being scrupulously careful to avoid any expression of his own view of the merits of the decision, and without suggesting that those merits had not been properly considered, expressed his difficulty in appreciating the considerations that could have led to the visa cancellation decision. Plainly underlying His Honour’s difficulty was the fact that the primary decision maker had failed to articulate a sufficient basis for the decision.
In Re Pemberton and Minister for Immigration and Citizenship (2009) 111 ALD 483; [2009] AATA 692 at [45] - [48] Deputy President Jarvis, in addressing the wording of (the then current) Direction [41] that is similar to (but not identical with) the statement of principle in Direction no. 55 paragraph 6.3(4) noted that that wording appeared to have been specifically inserted in the Ministerial direction in response to concerns of the kind that had been expressed by the full Federal Court in the Nystrom decision.
In the present proceedings the Minister’s representatives emphasised that the Tribunal should apply the guidance contained in Direction no. 55 by interpretation of its wording, rather than by comparison with previous Directions, or reasoning in decisions involving the application of those Directions. That emphasis is appropriate, but the reality is that the wording of the Direction provides little real guidance beyond the bare permission to regard apparently higher levels of risk as potentially acceptable. The situation is one where the exercise of the visa cancellation power is not fettered by any specific restriction in the Migration Act itself, and is only the subject of very general guidance in the principles in Direction no. 55 paragraph 6.3(4). Consequently, it is a situation which the remarks of Deane J in Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375 are appropriate. His Honour said:
… where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards.
Although Direction no. 55 refers to the requirement, in applying the relevant principles, to conduct “a balancing exercise” that exercise is not one of simple mechanical or qualitative comparison. As the Tribunal observed in Re Visa Cancellation Applicant and Minister for Immigration and Citizenship [2011] AATA 690 at [49] “one does not reach a conclusion by assigning values to particular considerations and tallying the differences.” The obligation to take into account the various considerations in the relevant Ministerial direction still requires the Tribunal to determine what is the “correct or preferable decision” in the totality of the relevant circumstances.
In the circumstances as they currently apply to DSR, I attach considerable importance to the duration and strength of his family ties. I also regard as important the particular circumstances of his birth and the apparent “accident” of his formal status as a United Kingdom citizen. The views expressed by the Courts in Nystrom, and the other decisions to which I have referred, fortify me in reaching the conclusion that it is appropriate to regard even a significant risk of re-offending as “acceptable” where the person concerned would certainly have been an Australian citizen, except for the “accident” of the circumstances of their birth and the formalities of its registration. I regard DSR’s situation as being of that kind.
A conclusion involving the acceptance of a significant risk of re-offending risk can only be properly reached after taking into account both the nature of the offending conduct and some assessment of the degree of probability of its occurrence. In DSR’s case his offending conduct, for all its seriousness, has not involved any material element of actual physical violence or harm. That absence is a factor which I regard as significantly informing an assessment of the re-offending risk associated with him. I also regard as significant that DSR’s offending has been associated with a long standing heroin problem. That problem has manifested itself in a range of situations where, as a consequence of bereavements, employment difficulties, immaturity and impulsiveness he has been unable to cope. Whilst these considerations highlight the reality of the risk of his re-offending, they also characterise him as a person who is more a victim of his own inadequacies, rather than as a merely criminal predator. And that perception is enhanced by regard to the commitment of DSR’s wife, her daughters, and DSR’s parents and sister. The fact that these people, particularly DSR’s wife, value DSR and keenly desire his direct participation in their family life, provides some comfort that there are very real prospects that his professed determination to adhere to a lawful return to life in the community is much more than merely predictable cant. Finally, it is I think also significant that DSR is now well apprised, in a way that he had never appreciated at the time of his serious offending, that he is at risk of being deprived of his Australian residence, if he re-offends. That is significant, not because DSR is entitled to a “second chance”, or because he has not previously been warned of the risk of visa cancellation, but because it is likely to operate as a significant deterrent that has never previously been present in his mind as even a conceivable consequence of his criminal offending.
Nothing I have said, in arriving at my conclusion that the risk of DSR’s risk of re-offending is not “unacceptable” (in the circumstances addressed in the present proceedings) should be taken to convey that it would never be appropriate to cancel the visa of a non-citizen who has spent the entirety of their minority as an Australian resident. The statutory power is conferred in general terms that would apply to such a situation. The sequence of High Court decisions culminating in Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 establish that the power can validly apply even to a person (such as DSR) who entered Australia as a British subject, and to a person who held an absorbed person visa under Migration Act s 34. The potential for its appropriate exercise is clearly implicit in the principles contained in Direction no. 55 paragraph 6.3. Such an exercise of the power will remain potentially available so long as the person concerned retains their status as a non-citizen visa holder and cannot satisfy the character test.
Decision
For the reasons I have set out above, the decision under review is set aside.
I certify that the preceding 94 (ninety - four) paragraphs are a true copy of the reasons for the decision herein of Mr P W Taylor SC, Senior Member .............[sgd]...........................................................
Associate
Dated 27 May 2013
Dates of hearing 15-17 May 2013 Counsel for the Applicant Ms A Tibbey Solicitors for the Applicant Legal Aid NSW Solicitors for the Respondent Ms A Carr, DLA Piper Australia SCHEDULE 1 – Summary of convictions and sentences – adult life
SCHEDULE 2 – summary of custody and liberty periods – adult life
1
10
0