Ellis and Minister for Immigration and Citizenship
[2008] AATA 1004
•7 November 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1004
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/4283
GENERAL ADMINISTRATIVE DIVISION ) Re CLARENCE ELLIS Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Deputy President P E Hack SC Date7 November 2008
PlaceBrisbane
Decision The Tribunal sets asides the decision under review.
............Signed...................
Deputy President
CATCHWORDS
IMMIGRATION – cancellation of residence visa – failure to pass character test –substantial criminal record conceded – Ministerial Direction No. 21 – protection and expectations of the Australian community – best interests of the children – other considerations – exercise of discretion – decision under review set aside
Migration Act 1958 (Cth) – ss 499, 501.
Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 40 FCR 493
Re Stone and the Minister for Immigration and Ethnic Affairs (1981) 3 ALN Note 81
Re Afoa and the Minister for Immigration and Multicultural Affairs [1999] AATA 82
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
REASONS FOR DECISION
7 November 2008 Deputy President P E Hack SC Introduction
1.The applicant, Mr Clarence Ellis, is a citizen of the United States. He was born in November 1960[1] and is now just short of his 48th birthday. As a consequence of a series of criminal offences committed by Mr Ellis in this country in April 2004 a delegate of the respondent, the Minister for Immigration and Citizenship, determined on 25 August 2008 that the Class BB, Subclass 155 Return (Residence) visa held by Mr Ellis, which would otherwise permit him to remain in Australia, ought be cancelled.
[1]In some instances in the material before me Mr Ellis’ birth year is shown as 1965 however I do not consider that anything turns on Mr Ellis’ precise age.
2.Mr Ellis seeks a review of this decision.
The legislation
3.By virtue of s 501(2) of the Migration Act 1958 (Cth) (the Act) the Minister may cancel a visa granted to a person if that person does not pass the “character test”. A person who has a “substantial criminal record”, a term defined as including a person sentenced to a term of imprisonment of 12 months or more, does not pass the character test[2].
[2] See s 501(6)(a) of the Act.
4.Section 499 of the Act permits the Minister to give written directions, not inconsistent with the Act and regulations, about the performance of functions, or the exercise of powers, under the Act to a person or body undertaking those functions or powers. The Tribunal is such a body. Direction No. 21 dated 23 August 2001 (the Direction) has been made under s 499 to provide “guidance to decision-makers in making decisions to refuse or cancel a visa” under s 501 of the Act.
5.Part 1 of the Direction deals with the application of the character test. Mr Ellis however accepts, obviously correctly, that he does not satisfy the character test. As a consequence, I am obliged:
“to exercise the discretion to consider whether to refuse or cancel a visa, taking into account primary and other considerations.”
Part 2 deals with those considerations and the weight to be given to them.
6.I will deal with the various considerations in due course, but for the moment I should set out the uncontroversial background against which those matters fall to be considered.
Background
7.Mr Ellis was first convicted of criminal offences in March 1987 when he pleaded guilty in the Henry County Circuit Court in the Commonwealth of Virginia to three offences described as “destroy personal property”, three described as “throw missile into occupied dwelling” and one described as “petit larceny”. The offences were described in this way by the probation officer who appears to have supervised Mr Ellis’ probation:
“These offenses took place in July, 1986 subsequent to a relationship between Ellis and his former girlfriend … Apparently Ellis was somewhat upset after the relationship was dissolved. He on several occasions drove by his girlfriend’s parents’ home and threw a rock through the window of the home and/or automobile.”
8.Mr Ellis was sentenced to confinement in the County Jail for a term of six months on one count and was given a suspended sentence and probation for a period of five years in respect of the other offences. His probation was undertaken satisfactorily and he was released from probation in November 1989. At the time of these offences Mr Ellis was 25 years old.
9.Mr Ellis first came to Australia in February 1990 and stayed for about six weeks. He returned in April 1991 and was granted permanent residence in July 1991 having married an Australian citizen that month. He has lived in Australia since then apart from a lengthy absence of about eight months in 1999-2000 and some other, much shorter, absences at other times.
10.In March 1998 Mr Ellis committed the offence of wilful damage. He said of that offence that he had damaged an ex-girlfriend’s car after she had slashed the tyres on his car. He was dealt with in the Rockhampton Magistrates Court in September 2001 when he was placed on a good behaviour bond for 15 months. No conviction was recorded.
11.The criminal offences that are of most significance are those committed in April 2004. The complainant in relation to those offences was an 18 year old female with whom Mr Ellis had had a friendship for some five years. The learned trial judge, Howell DCJ, said of the complainant that she “may even have looked to [Mr Ellis] for advice and guidance on occasions …” It was said that Mr Ellis developed some type of “sexual obsession” with the complainant. The offending started with the stalking of the complainant, constituted by the sending of text messages, and led eventually to rapes constituted by vaginal and anal penetration. The circumstances of the offences are best described in the sentencing remarks of Howell DCJ, where his Honour said:
“You inundated her with texts, and there was a veritable barrage of texting in the 24 hours preceding the, inter alia, sexual attack in counts 2 to 11. Such offending occurring in the early hours of the 3rd of April 2004. Whilst at work in the afternoon of 2 April 2004 when she checked her text messages, she found Exhibits 51 to 63, namely 13 texts. When she went home from work that evening, and through that evening before and after midnight, she received an increase in texts, namely from Exhibit 64 to 86, namely another 23 texts. In addition, in the early hours of the morning, she was almost bombarded to an extent, with telephone calls with nothing said at the other rend [sic] or the phone ringing out.
…
When the unlawful stalking accelerated on the 2nd of April 2004, you had undergone a substantial amount of planning with, as I said, persistence, and with cunning to a situation such that you, like a number of unlawful stalkers, probably thought you had all the answers. You took the necessary steps to make sure the complainant was at home by herself. You caused the young male who was with her at the time to leave. You had the benefit of the inside knowledge of the complainant living with her young brother who had what I might call shift work, and would not be present. You knew the means of access. You had stayed in the home earlier in the year for quite some period of time with the complainant and her brother. You knew the means of access through the front and back door and had access to a key if you wished to make a copy thereof.
Your ultimate entry into the premises on the evening is not as clear cut as one might think. One possibility is that you had a copy of a key to unlock the back door. The other possibility is that it was not locked when you obtained entry, and one must approach that particular fact somewhat cautiously.
Somewhat unusually for a matter of this nature, as Exhibits 92 and 93 show, a few days before, namely on the 29th of March 2004, you bought a book on forensic science. It is referred to as criminalistics, and as is well known in parts of North America, forensic scientists are referred to as criminalists and forensic science is referred to as criminalistics. A marked page at which the book fell immediately open when the police took possession of it when executing a search, opens on ‘Physical evidence in relation to blood, semen and saliva, et cetera’. Is the reasonable conclusion that you were obtaining knowledge in relation to evidence you might leave if you were involved in sexual activity with the complainant, and what you might have to do to remove or contaminate evidence. Exhibit 93 is the receipt to show that you purchased the book even with a deduction, for over $100.
Before one gets to the actual offending itself, the reasonable conclusion is that after offending you were contaminating evidence. That was why it was important for you to have a reason to be on the scene shortly after the offending occurred. What you wished to remove was any material which might identify by DNA testing you as the author of markings on the towel around the complainant’s head, and at or near the complainant’s private parts, and/or on the bed on which the complainant said certain activity took place.
What is worrying is the restraints, although not particularly wicked, but the restraint Exhibit 88, used to have the complainant’s hands restrained behind her back while having a towel over her head. After the offending, you deliberately handled a towel to contaminate possible DNA evidence. You took actions in relation to certain other material, and probably thought you might have a ready explanation if certain items that were in the house had your DNA thereon, because of your previously living in the house and visiting there regularly.
Where the whole matter came unstuck, and this would seem to be the reasonable conclusion, that after the sexual offending had concluded, you merely needed sufficient time, as I say, to contaminate certain evidence, to change clothing that might have incriminating material on it. That would include changing you trousers or shorts or whatever, and then when you had done what was necessary, to suddenly arrive as the knight in shining armour for the complainant. But perhaps surprisingly to yourself, she was able to remove the restraints, Exhibit 88, rather quickly, thereby enabling her to remove the towel from her head, and see you emerging from her bedroom with no trousers on, or to put it more accurately, exposed private parts.
By coming from the direction of her bedroom, and her position where she was at the time nearer to the back door, it excluded any hypothesis that you had just come in through the back door to assist her. You were the other side of her, so to speak. By virtue of her position at the time and your position, and the position of the toilet, it would have made it rather difficult for you to allege that you had a sudden urological or bowel problem, if I may refer to those indelicate matters.
You made the most amazing comments for someone who was allegedly there to help her, saying words like, ‘You probably think it’s me. Have you told the police?’ instead of obvious words, ‘How are you? Do you need an ambulance?’ or whatever.
In relation to the acts themselves, you used violence on the complainant at varying stages. The violence included the bite to her upper arm, which you probably thought was a love bite. As I said, other violence, and the doctor’s report, Exhibit 90, details the injuries observed by the doctor. You ultimately achieved vaginal penetration. It seems that that comparatively was not for very long. The complainant at the time had restraints on her arms behind her back. She had a towel over her head, and her head was in the pillow or in the bed, so to speak. You then achieved penile penetration of the anal orifice. Neither, it seems, in the circumstances, for a case of this type was overly long. There was no ejaculation. Prior to the penile penetration of the anal orifice, there was digital penetration of the anal orifice, which was arguably not for very long. There was an attempt to vaginally penetrate, and an attempt to anally penetrate. In the circumstances, they do not seem to be overly long for an offence of this nature, but of course, are serious and concerning. The whole incident, it seems, lasted possibly about an hour.
As a starting point, the offending is serious indeed, and must receive a substantial custodial head term. Anyone would accept that the complainant had a very traumatic, serious and worrying experience. As Crown counsel raised the matter on more than one occasion, it is arguably not inappropriate to express a certain concern I had in relation to her general credibility and reliability that there may have been – even clearly accepting the seriousness to which I have referred – a certain exaggeration. It is to be remembered that when the offender arrived, she was asleep. She was asleep in the early hours of the morning. She went to bed very late indeed. She had worked for 12 hours the previous day. She had the effect of the stress of receiving that barrage of text messages and phone ringing, but there was also the voluntary consumption of alcohol in combination with the voluntary ingestion of a prescribed drug that could affect general recollection, but I mention, I approach the findings of fact with a certain caution because of a certain concern that there was an exaggeration.”
12.Mr Ellis’ trial commenced in February 2007, almost three years after the offences had been committed, although the delay was largely attributable to his own actions. Mr Ellis asked to be re-arraigned and pleaded guilty after the complainant had given evidence in chief and before cross-examination. The convictions were for three counts of rape, for which Mr Ellis was sentenced to imprisonment for 9 years 9 months, one count of unlawful stalking, one count of entering a dwelling house with intent by breaking at night, one count of assault with intent to commit rape, two counts of attempted rape (in respect of all of which Mr Ellis was sentenced to 4 years, 6 months imprisonment), two counts of assault occasioning bodily harm and one count of deprivation of liberty (in respect of all of which Mr Ellis was sentenced to 2 years imprisonment). The sentences were made concurrent and a recommendation was made that Mr Ellis be eligible for parole after having served four and a half years, that is, after taking into account pre-sentence custody, on 5 October 2008.
Ministerial direction no. 21
13.Given the acceptance by Mr Ellis that he does not satisfy the character test I am required to have regard to the considerations enumerated in Part 2 of the Direction in particular the primary considerations discussed in paragraphs 2.3 to 2.16 of the Direction and the other considerations discussed in paragraph 2.17 to 2.24. I am required to have due regard to the importance placed by the Government on the three primary considerations but must adopt a balancing process, taking into account all relevant considerations.
14.The primary considerations are these:
(a)the protection of the Australian community, and members of the community;
(b)the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
Protection of the Australian community
15.Paragraph 2.4 of the Direction recites that the Government seeks to take reasonable steps to protect the community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community. The Direction suggests that the factors relevant to an assessment of the level of risk to the community from the continued stay of a non-citizen include the seriousness and nature of the conduct, the likelihood that the conduct may be repeated (including any risk of recidivism) and whether visa cancellation may prevent or discourage similar conduct or act as a general deterrent. I will discuss each of these matters in turn.
The seriousness and nature of the conduct
16.There is no doubt that the course of conduct engaged in by Mr Ellis was very serious. The fact of a head sentence of 9 years, 9 months demonstrates the gravity of the offences. The sentencing remarks, especially those extracted above, amply demonstrate that this was carefully planned and deliberate conduct that was described as “a very traumatic, serious and worrying experience” for the complainant. It is concerning that Mr Ellis was viewed by the complainant as a “father figure”. To that extent, at least, Mr Ellis breached her trust. It is, as well, worrying that Mr Ellis’ earlier offending arose out of the break-up of personal relationships. There are some parallels here where Mr Ellis’ initial infatuation with the complainant was not reciprocated.
17.There is no direct evidence before me of whether the complainant has suffered any long-term damage to her wellbeing. Given that the trial judge described her as having “serious emotional and psychological after-effects” and as being “a person of lower than average self-esteem” it seems reasonable to infer that she has been damaged by the ordeal.
18.The Direction notes, at paragraph 2.6(d), that:
“sexual assaults are particularly repugnant to the Australian community, especially sexual assaults involving children regardless of whether there was overt violence or the threat of violence.”
The present case was a particularly bad example of sexual assault given the premeditation and the invasion of the complainant’s residence in the early hours of the morning. In addition, the offences were accompanied by a moderate level of personal violence towards the complainant.
The likelihood of re-offending
19.Next, I need to consider the likelihood that the conduct may be repeated, including, as the Direction expresses it, the risk of recidivism. The Direction notes that previous general conduct and total criminal history are highly relevant in assessing these matters and lists three factors said to be relevant in undertaking that assessment:
(a)where a non-citizen commits a further offence after an earlier warning of the risk of visa cancellation;
(b)a non-citizen with several previous convictions in Australia is to be regarded as having an increased risk of recidivism;
(c)the extent of past rehabilitation, the possibility of future rehabilitation and the positive contribution that the person may reasonably be expected to make.
20.Here, the Minister’s submission is that Mr Ellis may re-offend if he were allowed to stay in the Australian community. It is said that, given Mr Ellis’ criminal history and the absence of any substantial evidence of rehabilitation, there is a risk that the conduct that Mr Ellis was sentenced for could be repeated. The Minister relies upon the decision of the Full Court of the Federal Court in Minister for Immigration, Local Government and Ethnic Affairs v Batey[3] as authority for the proposition “that a real risk of recidivism is one which is not far-fetched or fanciful and can include a low or minimal risk”. In my view, Batey stands as authority for the proposition that there is no inconsistency in finding that a risk is real, in the sense that it is not far-fetched or fanciful, and that the degree of probability of its occurrence is quantitatively low. I am not here concerned to make an assessment of whether there is a “real risk” of re-offending, an expression used in the reasons given by the Minister in that case. I am, instead, concerned to consider the likelihood of re-offending.
[3] (1993) 40 FCR 493.
21.Determining the likelihood of re-offending is not a precise science however it is one that can better informed than was the case here. In other statutory settings[4] the determination is required to be informed by reports from psychiatrists. It is within my own experience[5] that psychologists profess an expertise in undertaking the assessment. It is, perhaps, unfortunate that in cases such as the present the Minister does not obtain such reports especially where it is likely that the subject will have already been considered by professionals within the corrections system.
[4] See e.g. the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 11.
[5] See [2006] AATA 927.
22.Despite the reference in the Direction to “previous convictions in Australia”, I regard it as relevant and necessary to consider the whole of Mr Ellis’ criminal history and the seriousness of, particularly, the most recent offences. The offences in the United States are now of some vintage. It is to Mr Ellis’ credit that he apparently learned from that experience and did not run foul of the criminal law for the ensuing 11 years or so and then, perhaps stupidly, committed what was obviously viewed at the time as a quite minor offence. In that regard I note as well that Howell DCJ said of the Australian offence that it could almost be disregarded completely. But the fact that Mr Ellis then committed the April 2004 series of offences demonstrates that, to that time at least, he had not learned from his earlier experiences with the criminal law. It is, as well, relevant that Mr Ellis committed those offences when he was aged 44 years. He was not then a youthful offender who lacked maturity.
23.I do not accept the Minister’s submission that there is no substantial evidence of rehabilitation. That evidence appears from two sources.
24.As has been observed, Mr Ellis was sentenced by Howell DCJ. His Honour has, I suspect, more experience in the criminal jurisdiction than any other judge in this State. His Honour had an extensive practice in the jurisdiction as counsel and has served on the Court since 1984. His Honour had this to say regarding the prospects of Mr Ellis’ rehabilitation:
“Sadly, in my experience – and they have been unpleasant indeed on a number of occasions in stalking cases, but unlawful stalkers are usually insightless, one might say virtually completely so, and tend to remain so.
…
Unlawful stalkers, I have found, whether there is a recommendation for eligibility to apply for parole or not, served their sentences in full and come out of gaol rehabilitated to not one degree at all. They have been described as unrehabilitable. It is rare, indeed, for an unlawful stalker to make what I regard as a substantial step of admitting the offence, admitting the wrong. That gives a real prospect of rehabilitation for which there should be an allowance other than mere lip service.
…
The accused’s plea of guilty is that he has not only admitted counts 2 to 11, [he] has admitted the stalking, and one is entitled to say there is now some prospect of rehabilitation…”
His Honour went on to remark favourably on material before him that showed steps taken by Mr Ellis, during the lengthy period of pre-trial custody, to improve himself and described those efforts as “clearly real attempts at rehabilitation exhibited thereby”.
25.There is, as well, evidence that these steps at rehabilitation have been continued by Mr Ellis since February 2007. Mr Ellis has undertaken considerable study towards a Certificate in Business and has completed studies in nursing. He has undertaken, and completed, the Medium Intensity Sexual Offenders Programme during which he says he has “taken an in depth look at [his] offending behaviour”. Mr Ellis expresses the view that he is “dedicated to changing [his] life”. Were he to remain in Australia he will have the support, once released from gaol, of the supervision by parole officers until January 2014[6].
[6]Mr Ellis gave April 2014 as the date when parole would cease however I think he must have been mistaken. A sentence of 9 years, 9 months commencing in April 2004 would expire in January 2014.
26.I must say, as well, that I gained a favourable impression of Mr Ellis during the hearing. He impressed me as being genuine and sincere when speaking of his acceptance of his offending behaviour and of his desire to put that behind him and to use his experiences to make a contribution in this country. He did not attempt to downplay the seriousness of his conduct and my impression was that he was genuinely remorseful.
27.These matters demonstrate, in my view, that there is a real likelihood of future rehabilitation on the part of Mr Ellis and that he might reasonably be expected to make a positive contribution to Australian society were he to be permitted to remain in this country.
28.Notwithstanding Mr Ellis’ criminal history and the gravity of the April 2004 offences it is my view that the risk of Mr Ellis re-offending should be regarded as being quite low and the prospects of him making a positive future contribution as quite good.
29.The Minister advanced an argument, based on the remarks of Davies J, as President of the Tribunal, in Re Stone and the Minister for Immigration and Ethnic Affairs[7], that even if the risk of recidivism was not high, the risk would strongly support deportation when recidivism, if it does occur may cause great harm. Here it was contended that:
“… given the seriousness of [Mr Ellis’] offences, and the disastrous consequences for the community if Mr Ellis does re-offend the Tribunal should find that even a slight risk of re-offending is risk the Australian community should not bear and one which warrants the cancellation of Mr Ellis’ visa.”
[7] (1981) 3 ALN, Note 81
30.I entirely agree, with respect, with the comments of Davies J however I think the Minister’s contentions overstate the consequences were re-offending to occur. Undoubtedly any re-offending behaviour would have grave consequences for the victim or victims of that conduct, but I think one must keep a sense of proportion about the notion of “disastrous consequences for the community”.
General deterrence
31.The final aspect of the consideration of the protection of the Australian community is that of general deterrence. It is not difficult to imagine cases where visa cancellation might act as general deterrence to others who might be tempted to engage in criminal conduct. But, as it seems to me, the present is not such a case. It must be regarded as a given, in this day and age, that persons who commit sexual offences of this nature will be sent to gaol. But that seems not to stem the flow of such cases in the criminal courts. Absent particular evidence, I cannot regard a decision to cancel Mr Ellis’ visa as having anything other than a slight prospect of acting as a deterrent upon like-minded persons.
The expectations of the Australian community
32.I turn then to the second primary considerations, the expectations of the Australian community. In relation to a similar expression in an earlier ministerial direction Deputy President Forrest said[8]:
“Community expectation will of course mean different things to different people. I think the phrase ‘community expectation’ is meant to reflect the view of the community as represented by the objective bystander. It is not an assessment reflecting his or her social or personal values simply in response to the question, Do you think non-citizens who commit serious crimes of violence should be deported? but instead requires a dispassionate response when all of the relevant facts and circumstances have been examined.”
[8] Re Afoa and the Minister for Immigration and Multicultural Affairs [1999] AATA 82 at 7-8.
33.And, as Deputy President McMahon observed in Re Leha and Minister for Immigration and Multicultural Affairs[9]:
“There would be a general expectation in the community that the Act would be administered fairly and humanely.”
[9] [2000] AATA 1054 at [34].
34.I accept the force of the remarks of Davies J in Stone[10], relied upon by the Minister, that the nature of some offences is of such significance that the offender may be regarded as having placed himself or herself among the class of persons whom Australia will not accept. As his Honour said:
“…the community may prefer to deport the criminal because he no longer meets the criteria which the community, having a choice as to who will and who will not become members of its community, has laid down for entry to Australia.”
[10] Supra at 133.
35.The Australian community would expect non-citizens to obey the law and would expect that a non-citizen who did not obey the law would be punished. But I am not here concerned with notions of punishment; rather I am concerned to consider whether Mr Ellis’ criminal record is such that the Australian community, by the standard of an objective and properly informed bystander, would regard that criminal conduct as warranting the applicant’s removal from this country. That bystander would need to consider, as well, the very substantial efforts made by Mr Ellis to improve his education and to address his offending behaviour.
The best interests of the children
36.The third primary consideration is the best interests of any children under 18. The Direction recognizes that, in general terms, the best interests of a child under 18 will be served if the child remains with its parents. There are two persons whose interests fall to be considered under this head. Mr Ellis is the father of a child born in 1999 however he does not know the child’s name and has never had any contact with the child or the child’s mother since the birth. Additionally, Mr Ellis was in the position of a father to the child of his former partner until 2001 when the partner moved interstate.
37.Cancellation of Mr Ellis’ visa would prevent any personal contact between Mr Ellis and these children however where there has been no relationship with one child and none since 2001 in the other I am unable to see how it could be said that the best interests of the children are relevant here. I note, in that regard, that Mr Ellis does not suggest that that is so.
Other considerations
38.It is now necessary to have regard to the other considerations. Several matters are listed, non-exhaustively, in paragraph 2.17 of the Direction. I do not propose to go through that list seriatim but rather I will discuss the matters that appear to me to be relevant considerations.
39.Mr Ellis has some family in the United States but has had limited contact with them and none since his incarceration. He has no family in this country but has a small circle of friends and supporters with whom he would hope to continue contact. In the terms used in the Direction there would be no disruption to any family or business ties were Mr Ellis’ visa to be cancelled.
40.One of the matters nominated in the Direction is evidence of rehabilitation and recent good conduct. I need not repeat my earlier consideration of this topic beyond observing that it weighs very heavily in Mr Ellis’ favour.
41.Mr Ellis places some reliance upon problems that he experiences with his health that would be compounded were he to be forced to rely upon the public health system of the United States. He suffers from post traumatic stress disorder, has significant problems with his shoulder (expected to be operated on shortly) and with his knee. Ms van Duyn, the solicitor for the Minister, submitted that I could not have regard to Mr Ellis’ claim that he would suffer under the public health system in the United States. I would not have thought that that was so however I need not reach any concluded view since it seems fair to say that there are problems and delays with the public health system in this country. On the material before me I am unable to reach a view on whether Mr Ellis would be worse off in the United States public health system or not. I acknowledge however that Mr Ellis will undoubtedly experience difficulty with his health care and general welfare if returned to the United States. He has no close relations there and no support network, having left there many years ago.
42.I mention, although I do not regard it as being significant, that Mr Ellis has not been previously warned of the possibility of visa cancellation. Had there been such a warning the case for cancellation would have been more compelling, but I do not regard the absence of a warning as telling in favour of his case.
The exercise of the discretion
43.I am obliged to have regard to the importance placed by the Government on the three primary considerations and to adopt a balancing process that takes into account all relevant considerations. I have considered those matters and am conscious of the seriousness of the April 2004 conduct, the need to protect the Australian community and the expectations of that community. Notwithstanding the seriousness of the conduct and the history of other criminal conduct I consider that on balance the discretion ought be exercised favourably to Mr Ellis particularly given my views regarding his likelihood of re-offending and what I regard as his real prospects of making a positive contribution to the Australian community.
44.It should however be plain to Mr Ellis that the Minister’s power to cancel his visa would be likely to be used again were he to re-offend or to engage in conduct that demonstrates that cancellation was warranted. It is not a power that is spent; it is capable of being re-exercised in a proper case.
45.It follows that in my view the decision under review ought be set aside. It seems unnecessary to make any further decision since setting aside the decision to cancel will leave Mr Ellis with a current visa.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC.
Signed: .....................Signed…..........................................
Jacqueline Woods, AssociateDate of Hearing 24 October 2008
Date of Decision 7 November 2008
For the Applicant Unrepresented
Solicitors for the Respondent Clayton Utz
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