Evans and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 1051
•21 October 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1051
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2005/128
GENERAL ADMINISTRATIVE DIVISION ) Re MICHAEL JOHN EVANS Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal The Hon C R Wright QC (Deputy President) Date21 October 2005
PlaceHobart
Decision The decision under review is affirmed.
The Hon C R Wright QC
Deputy President
CATCHWORDS
Immigration - visa - cancellation - character test - substantial criminal record -failure of character test - exercise of discretion -risk of recidivism - protection of Australian community.
Migration Act 1958 - s501
Luu v Minister for Immigration and Multicultural Affairs [1998] FCA 1021
Bridges v Minister for Immigration and Multicultural Affairs [2001] FCA 1647
Chau and Minister for Immigration and Multicultural Affairs (2001) AATA 485
REASONS FOR DECISION
21 October 2005 The Hon C R Wright QC (Deputy President) (A) Application to Review
1. The applicant seeks review of a decision by the Minister’s delegate dated 11 August 2005 cancelling the applicant’s Absorbed Person visa. The cancellation was based upon the delegate’s finding that the applicant has a “substantial criminal record” within the meaning of the Migration Act 1958 (“the Act”) section 501(7) and that, consequently, he failed the character test pursuant to s501(6)(a) of the Act. The delegate elected not to exercise his discretion in favour of the applicant by declining to cancel the visa.
2. The applicant is currently serving a prison sentence in Australia and consequently the provisions of s500(6A)-(6L) of the Act apply.
3. The application to review was heard in Hobart on 6 and 13 October 2005.
(B) The Applicant’s Criminal Conduct
4. On 3 December 2003 the applicant was convicted of attempting to murder his wife Ann Flowers after a jury trial in the Supreme Court of Tasmania. He was sentenced to imprisonment for a period of four and a half years with parole eligibility after two years 3 months.
5. At the trial the applicant’s wife gave evidence that on the evening of 9 May 2003 she returned to the matrimonial home at Wilmot Road, Forth at about 7.55 pm and found her husband, the applicant, waiting inside. He appeared to have been drinking heavily. She went to the bedroom and lay on the bed reading a magazine. He entered shortly after, picked up a loaded gun which was kept in the bedroom and said to her words to the following effect “I’ve been waiting all day for your – you bitch. You’re going to die you bitch.” He pointed the gun at her and kept repeating “You’re going to die”. He discharged the gun, shooting her in the stomach region. Fortunately, the shot was not fatal. She attempted to wrest the gun from him. He said he intended to “blow her brains out” and then to “blow his own brains out”. His wife managed to disarm him and took possession of the gun. He followed her from the bedroom and then returned saying “I’ll get the other gun and finish what I started”. She then ran from the house and made good her escape. The incident was reported to the police and Mrs Flowers was admitted to hospital where she underwent surgery and eventually recovered.
6. The applicant also gave evidence at the trial. He said that he followed his wife to the bedroom for the purpose of killing himself in her presence. He said he had no intention to harm her. He denied threatening her in the manner she alleged. He said that his wife tried to take the gun from him and was shot accidentally in the ensuing struggle. By their verdict it is plain that the jury did not believe him and was satisfied to the requisite criminal standard that he had tried to kill her.
7. In accordance with the principles discussed by Weinberg J in Luu v Minister for Immigration Multicultural and Indigenous Affairs [1998] FCA 1021 and the Full Federal Court in Bridges v Minister for Immigration Multicultural and Indigenous Affairs [2001] FCA 1647 it is not open to the applicant to challenge his conviction or the essential facts giving rise thereto. On this basis much of the evidence given at the Tribunal hearing on 6 October by the applicant was not directly relevant to this issue, but it did demonstrate that the applicant still fails to acknowledge or accept the criminality of his conduct. Having heard both his evidence and that of his wife when they both confirmed the version of events which each of them respectively had given at the trial, I think it appropriate to record that, even if it were competent for me to find facts inconsistent with the jury verdict, I would certainly not do so. I found Mrs Flowers to be a frank and impressive witness. By contrast I found the applicant to be either lying about the relevant incident or, possibly, as suggested by Dr Sale in his report (Exhibit R7), to have deluded himself as to what actually happened. Frankly, I am much more inclined to the first alternative, however. I am in no doubt that the applicant attempted to murder his wife, but obdurately refuses to concede that he did so. This obviously has ramifications when considering the exercise of a discretion which may have the effect of allowing him to remain in Australia.
Character
8. The provisions of the Act section 501(6) and (7) clearly mandate a finding that the applicant has a substantial criminal record by virtue of his conviction for the attempted murder of his wife. The same statutory provisions also clearly require a finding that the applicant does not pass the character test. Consequently the applicant’s visa permitting his continued residency in Australia may be cancelled. These propositions have not been disputed by the applicant’s legal representative. The central question for resolution is whether or not a residual discretion should be exercised to preserve the applicant’s visa.
Discretion
9. The Minister’s directions issued pursuant to s499 of the Act in respect of visa refusal and cancellation under s501 provide guidance to all decision-makers, including members of the AAT (See Direction No 21, dated 23 August 2001).
10. Part II of the Direction deals with the exercise of discretion where a non-citizen does not pass the character test.
Paragraph 2.3 specifies 3 primary considerations for attention by the decision-maker:
(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 interest of the child or children.
11. In the present circumstances the issues adumbrated in paragraph 2.3(c) do not arise as there are no relevant children under the age of 18 years.
12. The protection issue referred to in paragraph 2.3 (a) is elaborated upon in paragraph 2.4 and following of the Direction. A key issue identified is the level of risk which may accrue to the community as a whole or individual members of the community if the relevant visa is not cancelled. Included in such an assessment are 3 elements noted in paragraph 2.5. These are the seriousness and nature of the criminal conduct, the likelihood of the conduct being repeated and the likelihood of cancellation providing discouragement for other like minded offenders (general deterrence).
13. There can be no doubt that in relative terms, and also in accordance with Government’s views expressed in paragraph 2.6, the criminal offence committed by the applicant was very serious indeed. He did not desist from his criminal attack. He intentionally shot his wife and avoided vital organs only by chance. On realising he had failed to kill her he pursued his attack and she had to flee to save herself. His conduct was at a very high level of culpability. His intention to turn the gun on himself once he had despatched his wife does not diminish his blame worthiness. It has not been alleged that Mrs Flowers provided any provocation for his murderous attack. His acknowledgement in evidence that the incident “should never have happened” and that it was his “responsibility” did not amount to an acknowledgement of an intent to kill or a meaningful expression of remorse for his criminal conduct. At no time did he deviate from his claim that the shooting was accidental. The trial Judge who sentenced the applicant also described the applicant’s offence as very serious but, surprisingly, preceded this comment with an observation that his likelihood of re-offending was “slight”. I can see no evidentiary support for this observation in the evidence of Dr Ian Sale which His Honour had before him and which was also made available during the Tribunal hearing (Exhibit R7). Despite his categorisation if the crime as very serious, His Honour imposed a comparatively light sentence of 4½ years with parole eligibility after 2 ¼ years. I think it is plain from his comments that His Honour took this course bearing in mind the applicant’s lack of prior convictions and his very poor health.
14. The applicant says that upon release from prison he has no intention of making contact with his wife. However, Mrs Flowers is obviously genuinely fearful that unless he is forced to leave Australia he may well seek her out and try once more to kill her or do her serious harm.
15. Ms Anne Taylor gave evidence at the Tribunal hearing of a statement made to her by a former prison inmate who knew and had allegedly conversed with the applicant. It was claimed that this prisoner said he heard the applicant say he was “going to finish the job” meaning he was going to kill his wife when released from prison. This was plainly hearsay upon hearsay and lacks probative value. Whilst I accept that Ms Taylor heard the conversation she describes, I am unable to give any weight to the threat allegedly made by the applicant in the absence of direct testimony from the former prisoner.
16. To my mind there is evidence tending to establish a determined and violent disposition on the part of the applicant to be found in the first complete paragraph on page 5 of Mrs Flowers’ statutory declaration (Exhibit R5). Whilst his conduct on the occasion there described may, in part, have been due to his intoxication, it is plain from Mrs Flowers’ evidence that he was usually particularly aggressive after consuming Scotch whisky. She also said he is a person who holds grudges. I do not doubt that the applicant has been sober in prison. He claims that he will not resume drinking hard spirits like Scotch when released. Mr Barns suggested that there was no evidence that his client was alcohol dependent, and this appears to be true, but I think it is plain that he has consumed large amounts of liquor on a regular basis for many years before his incarceration and I have little confidence that he will moderate his drinking patterns when he is released.
17. It is of significance to me that there was no obvious motive for the applicant deciding to kill his wife. Mrs Flowers’ evidence supports the conclusion that he had waited at home forming the plan to kill her before she arrived home on the relevant occasion. Her description of his conduct on that evening and his conduct leading up to that evening suggests strongly that he had become self absorbed, emotive and vengeful. On the evidence which I have before me, I am quite unable to conclude that the risk of his attempting to inflict further harm upon Mrs Flowers when discharged from prison is slight or non-existent. On the contrary, I think that such a risk is real and substantial. I note that the concluding paragraph of the Pre-Parole Report prepared by Lyndal Appleby (Exhibit R3) suggests that the applicant is in “the high range in relation to high risk of re-offending”. The exact nature of that assessment was not described in the report, but it is a recent and detailed report and gives a comprehensive account of the applicant’s background which seems to me to provide a rational basis for the conclusion expressed. I have taken the material in that report into account, but I have not been influenced by the risk assessment itself, although obviously it is of interest to find that it coincides with my own.
18. It should not be overlooked that the applicant has been unable to show any realistic support mechanism which will be available to him within the Australian community when he is discharged. Obviously, if paroled, he will be supervised by the Parole Service for the duration of the balance of his sentence, but it has not been suggested that there are any family members or friends who are likely to provide him with accommodation or support. His plans appear vague. His plan to live at Ravenswood has not found favour with the Parole Service for the reasons stated in Exhibit R3. He has a vague idea that he might find employment at an archaeological dig site in a remote area of Australia, but there is nothing concrete to support this ambition. I think that these factors tend to accentuate the possibility of the applicant resuming his over indulgence in alcohol and brooding upon his hatred or resentment of his wife.
19. The issue of general deterrence does not appear to me to rate highly in this case. I have discussed this matter in several previous decision e.g. Chau and Minister for Immigration and Multicultural Affairs (2001) AATA 485 @ paragraph 25.
20. The second primary consideration referred to in the Minister’s Direction requires an assessment of the expectations of the Australian community. Apart from the factors discussed above, a reasonable person forming an expectation as to the outcome in this case would need to take account of the applicant’s poor health. This was described in detail by Dr Christopher Henderson who is the Clinical Director of Health at HM Prison at Risdon. The applicant is 62 years of age, has many chronic and disabling ailments affecting his strength, mobility, and probably, his longevity. He will require ongoing medication and consultation with a supervising general practitioner and, if necessary, relevant specialists. He is a British citizen however, and if his visa is cancelled there is no reason to think that he will be unable to access all appropriate services and facilities upon his return to Britain. The applicant’s Australian visa was granted in 1984. He has been living in Australia since 1977. However he spent the first half of his life in the UK. There is no reason to think that he will have any particular difficulty in re-establishing in Britain. As Mr Livermore submitted, wherever he goes after release from prison the applicant will be making a fresh start. In considering this matter I have taken account of the written submissions by Mr Barns on pages 3 and 4 under the heading “Other factors under para 2.17”.
21. I have formed the opinion that a fair minded reasonable member of the Australian community would expect that the applicant’s visa should be cancelled. In reaching this conclusion, I have taken account, not only of those matters discussed above, but also those matters mentioned in the paragraphs following.
22. In exercising my discretion it is also necessary to consider matters other than the primary considerations referred to in Direction No. 21.
23. Paragraph 2.17 of Direction 21 sets out other considerations which may be relevant when considering the issue of cancellation of a visa.
(a) Disruption to family or business life in Australia
The applicant has isolated himself from his family, has not worked in Australia for several years and he has no business interests in Australia. He has no relevant friendship or community links. In my opinion there is no relevant disruption to family or business life in Australia.
(b) Marriage or interdependent relationship with an Australian citizen
The applicant’s marriage has ended and he has not kept in touch with family and friends in Australia. Therefore, this consideration does not support the exercise of the discretion in the applicant’s favour.
(c) Hardship to immediate family members
The applicant has not kept in contact with them for years, and consequently there are no immediate family members who will suffer hardship if the applicant’s visa is cancelled. Therefore, this consideration does not support the exercise of the discretion in the applicant’s favour.
(d) Family composition in Australia and overseas
The applicant has family in Australia, but he has not kept in touch with them. He also has relatives in the United Kingdom, including a brother and cousins. Through the influence of his wife he has kept in touch with at least one cousin in Wales. Therefore, this consideration does not support the exercise of the discretion in the applicant’s favour.
…
(h) Evidence of rehabilitation or recent good conduct
The applicant has been in prison and apparently has not caused any problems. He still denies the offence and I have assessed his risk of re-offending as substantial. I agree with Mr Livermore’s submission that there is no persuasive evidence of rehabilitation. This consideration does not support a favourable exercise of the discretion.
…
(j)Purpose and duration of stay including any significant compassionate circumstances
The applicant has been a permanent resident of Australia. There are no significant compassionate circumstances in my opinion.
Conclusion
24. The applicant has committed a very serious crime. Upon his release from prison he will have to make a fresh start. His long term residency in Australia is a factor in his favour, but he has no support network among relatives or friends and having regard to his evidence it is unlikely that such a network will be developed. He may have relatives in the UK who would provide some assistance, but there is no guarantee of this. The determinative factor in my determining not to exercise my discretion to save his visa from cancellation is my perception of his substantial risk of re-offending if he remains in Australia and decides to pursue his wife. Removal to Britain will effectively prevent any temptation to do so as she intends to continue residing in Australia. In my opinion the decision under review should be affirmed. I so order.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright QC (Deputy President)
Signed: K L Miller (Administrative Assistant)
Date/s of Hearing 6 and 13 October 2005
Date of Decision 21 October 2005
Counsel for the Applicant Mr Greg Barns
Counsel for the Respondent Mr G Livermore
Solicitor for the Respondent Mr D Wilson Australian Government Solicitors
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