Edwards and Minister for Immigration, Multicultural and Indigenous Affairs
[2004] AATA 1240
•25 November 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1240
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/709
GENERAL ADMINISTRATIVE DIVISION ) Re LIONEL BRUCE EDWARDS Applicant
And
MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Deputy President Don Muller Date25 November 2004
PlaceBrisbane
Decision The Tribunal affirms the decision to cancel the Special Category Visa of Lionel Bruce Edwards, pursuant to subsection 501(2) of the Migration Act 1958.
................SIGNED..............................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
IMMIGRATION – cancellation of Special Category Visa – substantial criminal record – further recent criminal convictions for armed robbery – does not pass the character test – discretion not exercised in applicant’s favour – decision affirmed
Migration Act 1958: s 499, 501
REASONS FOR DECISION
Deputy President Don Muller 1. Lionel Bruce Edwards is a citizen of New Zealand who has been living in Australia since he first entered Australia on 7 March 1988.
2. On 1 September 1994 he was granted a Special Category Visa, TY – 444.
3. In late 1999, Mr. Edwards committed three serious criminal offences in Queensland. He was subsequently convicted and sentenced to imprisonment for seven years.
4. On 23 March 2004, Mr. Edwards was notified by mail at Woodford Correctional Centre of the intention to cancel his visa pursuant to s.501(2) of the Migration Act 1958 (the Act), on the ground that he did not pass the character test.
5. Mr. Edwards does not wish to return to New Zealand.
6. On 6 April 2004, Mr. Edwards made a submission to the Respondent’s Delegate that his Visa should not be cancelled because:
(a)His parents have passed away and he has no immediate family in New Zealand.
(b)He has undertaken many courses whilst in prison. He now has strategies to understand his offending behaviour.
(c)He has job opportunities in Australia, but not in New Zealand.
7. On 21 June 2004, a Delegate of the Respondent decided to cancel Mr. Edwards’ visa.
8. Mr. Edwards seeks a review of the decision to cancel his visa.
9. The material placed before the Tribunal shows that:
(a)Lionel Bruce Edwards was born in New Zealand on 7 September 1966.
(b)He has a lengthy criminal history which began in New Zealand when he was 16 years of age in 1982.
(c)Mr. Edwards’ criminal history is so extensive that it would require many pages to list every individual offence. The following is a summary.
(d)New Zealand convictions between 6 September 1982 and 17 June 1985:
·Shoplifting – 1 conviction;
·Burglary – 2 convictions;
·Wilful damage – 2 convictions;
·Theft ex car – 2 convictions;
·Common assault – 2 convictions;
·Unlawfully takes motor vehicle – 4 convictions;
·Drives when disqualified – 2 convictions;
·Obstruct/hinder police – 1 conviction;
·Possession of offensive/unlawful weapon – 2 convictions;
·Breach of periodic detention – 1 conviction.
(e)For his New Zealand convictions, Mr. Edwards was sentenced to various terms of probation, resident and non-resident periodic detention and corrective training.
(f)New South Wales convictions between 23 May 1992 and mid 1998:
·Malicious Damage – 4 convictions;
·Unlicensed Driving – 4 convictions;
·State false name – 2 convictions;
·Drink Driving – 1 conviction;
·Negligent driving – 1 conviction;
·Driving whilst disqualified – 1 conviction;
·Drive unregistered vehicle - 4 convictions;
·Drive uninsured vehicle – 4 convictions;
·Drive vehicle with plates calculated to deceive – 2 convictions;
·Stealing – 2 convictions;
·Self admin prohibited drug – 1 conviction;
·DUI – 1 conviction;
·Behave in offensive manner in/near public place/school – 2 convictions;
·Fail to quit premises when refused entry by the licensee – 1 conviction.
(g)For his New South Wales convictions, Mr. Edwards was fined amounts varying from $100 to $400. He seems not to have been imprisoned in New South Wales.
(h)Queensland convictions between 1999 and 2002:
·Possession of prohibited articles – 1 conviction;
·Possessing dangerous drug – 1 conviction;
·Obstruct a police officer – 1 conviction;
·Robbery with actual violence – armed with dangerous/offensive weapon/instrument (on 23.10.1999 and 16.11.1999) – 2 convictions;
·Attempted robbery – actual violence – armed/pretends to be armed with dangerous/offensive weapon/instrument (on 6.12.1999) – one conviction;
(i)Mr. Edwards was sentenced to seven years imprisonment for each of the two convictions for armed robbery and to five years imprisonment for the attempted robbery, to be served concurrently.
10. The transcripts of the witness statements and the Judge’s sentencing remarks for the Queensland robberies shows the following scenarios:
(a)At about 9.00pm on 23 October 1999, Mr. Edwards entered a Subway food takeaway store. He produced a knife and said to the male shop assistant, “Give me the money.” The assistant placed the cash register till on the counter in front of Mr. Edwards. Mr. Edwards removed about $160 from the cash drawer. Upon taking possession of the money, Mr. Edwards instructed the shop assistant to lie on the ground, and said that if the assistant failed to comply with the instruction, Mr. Edwards would “call his friends in”.
(b)At about 8.00pm on 16 November 1999, Mr. Edwards entered the same Subway store which on this occasion was attended by two female assistants. Mr. Edwards produced a knife from his sleeve and said “Give me the money.”. One of the assistants placed the till on the counter. Mr. Edwards removed approximately $220 from the cash drawer. Mr. Edwards then instructed the assistants to lie on the ground and he said that if they did not he would “go and get his cousins… they are outside and they are going to come in”.
(c)At about 3pm on 6 December 1999, Mr. Edwards entered a shoe shop. He indicated to the female shop assistant that he had a concealed firearm and that she should remove all the cash from the register. The shop assistant told Mr. Edwards that she did not know the password for the cash register. Mr. Edwards became frustrated and left the shop.
11. The legislation relevant to this review is contained in subsections 501(2), (6) and (7) of the Act. They provide:
“s.501
(2) The minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.
…
Character test
(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
…
(c)having regard to either or both of the following:
(i)the person’s past and present criminal conduct; or
(ii)the person’s past and present general conduct;
the person is not of good character; or
(d)in the event the person were allowed to enter or to remain in Australia, there is significant risk that the person would:
(i)engage in criminal conduct in Australia;
Otherwise, the person passes the character test.
Substantial criminal record
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more.”
12. There is no doubt that Mr. Edwards has been sentenced to a term of imprisonment of 12 months or more. He therefore has a substantial criminal record within the meaning of that term in subsection 501(7) of the Act. He is therefore deemed by subsection 501(6) to not pass the character test. Consequently, the Minister was entitled to cancel Mr. Edwards’ visa under subsection 501(2) of the Act.
13. However, notwithstanding the fact that the decision to cancel Mr. Edwards’ visa was justified, section 501 allows for the decision maker to exercise a discretion in each individual case. The Minister has issued a Direction (number 21), pursuant to the provisions of s.499 of the Act, which contains matters which decision makers (including the Tribunal) are to take into account in exercising the discretion.
14. Mr. Edwards gave evidence during the Tribunal hearing. He urged the Tribunal to use the discretion in his favour and to take the following matters into account:
(a)He had a difficult childhood. He was the youngest of 11 children to a Maori father and a Scottish mother. When he was a young boy his older brother died in a motor cycle accident. His father died when he was 11 years old.
(b)As a teenager he got involved with the rest of his family in a Maori gang called “The Mongrel Mob”. He did not want to get involved with the gang but he believed that he would be excluded from the rest of his extended family if he did not.
(c)His criminal offences in New Zealand occurred during his years as a gang member.
(d)His mother passed away when he was 17 years of age.
(e)He married in 1986 at the age of 20. The marriage produced a son shortly thereafter.
(f)In March 1988 he, his wife and young son moved to Sydney.
(g)His second son was born in Sydney in 1989.
(h)He separated from his wife and two sons in 1992. He was in a poor mental state after the separation and during 1993 and 1994 he committed numerous vehicle related offences.
(i)His wife took their two sons back to New Zealand. She has since re-married.
(j)He makes no excuses for committing the serious offences in Queensland in 1999. However, he is sorry to have caused trauma to members of the Australian public.
(k)During his time in prison he has:
(i)learnt how much his impulsive actions have impacted on others;
(ii)learnt to appreciate the assistance offered by friends;
(iii)taken steps to improve his education and job skills; and
(iv)participated in counselling programs.
(l)He now wishes to live a decent life in Australia free of criminal activities.
(m)He does not wish to return to New Zealand. He is worried that if he does, he may succumb to old temptations.
(n)He has remained in touch with his sons, who are now aged 18 and 15. He would like to be able to have them join him in Australia so that he could be the father to them that he never has been.
(o)He has a good support group in Australia, whereas he does not in New Zealand.
(p)He is now “not the idiot I was”.
(q)He has always been able to obtain work. He has a job to go to in Australia.
(r)It was not until he completed various courses in prison, that he realised he was terrorising people.
15. The Tribunal also received evidence from Robyn Hofmans, a social science worker. Ms. Hofmans made the following points:
·Mr. Edwards had many years in Australia when he was not in trouble;
·He got into trouble as a result of cultural and family influences and he did not know how to take a better path.
·He has now done a lot of excellent courses.
·He has had an excellent work record in Australia.
16. The Minister’s Direction 21 contains a large number of matters which a decision maker should take into account in assessing whether discretion should be exercised in favour, or otherwise, of a person whose visa may be cancelled. A number of the matters do not apply to Mr. Edwards. I regard the following matters as relevant to this review.
17. Protection of the Australian Community
The crime of stealing with violence is particularly serious. Crimes that involve mugging, holding up service-stations, fast food outlets, corner stores et al, and home invasions, are so serious that anyone who participates in them almost automatically forfeits the right to expect compassion. The Australian community is entitled to be protected against persons who perpetrate such crimes.
18. I accept that Mr. Edwards had a difficult childhood. His problems with the law in New Zealand occurred between the ages of 16 and 19 and probably reflect to some extent his difficult early life and poor family role models. However, his offences in New South Wales occurred between the ages of 26 and 32. His offences in Queensland occurred when he was 33. He has not demonstrated that he has improved with age, experience and maturity. In fact, his criminal behaviour has escalated to more serious crimes.
19. I accept the claim by Mr. Edwards that he has completed some worthwhile courses whilst in prison. I hope they do him some good. However, he is yet to demonstrate that he will not continue on the same criminal path as he has done for most of his adult life.
20. I find that in Mr. Edwards’ case there is a significant risk of recidivism.
21. There is also the element of deterrence to be considered. However, I regard deterrence to others as a by-product of the decision to cancel the visa rather than a reason to cancel in Mr. Edwards’ case.
22. Expectations of the Australian community
I believe that it would be the expectation of the members of the Australian community that Mr. Edwards not be permitted to remain in Australia.
23. The best interests of children
Mr. Edwards has two sons who are in their mid to late teens. They live with their mother in New Zealand. This is not a factor which has any bearing on whether or not Mr. Edwards’ visa should be cancelled.
24. I find that the discretion allowed for under s.501 should not be exercised in Mr. Edwards’ favour.
25. The decision to cancel Mr. Edwards’ Special Category Visa is affirmed.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller
Signed: .....................................................................................
R. Link, AssociateDate/s of Hearing 8 November 2004
Date of Decision 25 November 2004
Solicitor for the Applicant Mr. Edwards, himself
Solicitor for the Respondent Ms. G. Bennett, Clayton Utz
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