Fidow and Minister for Immigration and Citizenship
[2009] AATA 533
•17 July 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 533
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/1860
GENERAL ADMINISTRATIVE DIVISION )
Re Dion Imila FIDOW
Applicant
AndMinister for Immigration and Citizenship
Respondent
DECISION
TribunalMs N Isenberg, Senior Member
Date17 July 2009
PlaceSydney
DecisionThe decision under review is set aside.
………………[sgd]…………………...
Ms N Isenberg
Senior Member
CATCHWORDS
IMMIGRATION – visa cancellation – whether Applicant fails to pass the character test – whether Tribunal should exercise discretion to cancel the Applicant’s visa – Direction 41 applied – primary considerations – other considerations – decision under review is set aside.
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RELEVANT ACT/S:
Migration Act 1958: ss 499, 501
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CITATIONS
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Toia and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1142
Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56
Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198
Tumanako and Minister for Immigration and Multicultural Affairs [2006] AATA 848
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OTHER AUTHORITIES
Direction No 41
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REASONS FOR DECISION
17 July 2009
Ms N Isenberg, Senior Member
background
1. The Applicant, Dion Fidow is a 34-year-old citizen of New Zealand. He first arrived in Australia on 16 June 1996, and has travelled between Australia and New Zealand frequently, returning to New Zealand on 13 occasions. His last arrival in Australia was on 3 May 2002 as the holder of a Subclass 444 Special Category visa.
2. In July 2003, Mr Fidow was convicted of “Robbery in Company with Wounding”. He was sentenced to 11 years imprisonment for the offence, commencing on the date of his arrest, 18 June 2002, with a non-parole period of eight years. When sentenced, seven offences of dishonesty, committed between November 2001 and February 2002, were taken into account. Previously Mr Fidow had committed a range of traffic offences between August 2001 and June 2002 for which he was fined and had his driver’s licence cancelled.
3. The Applicant was issued with a notice of intention to consider cancellation of his visa on 2 July 2008. On 17 April 2009, a delegate of the Minister decided to cancel the Applicant’s visa on the ground that he did not satisfy the character test set out in s 501 of the Migration Act1958 (Cth) (the Act). The Applicant sought review of that decision on 4 May 2009 by application to this Tribunal.
4. At the hearing, Mr Fidow was unrepresented, and the Respondent was represented by Greg Johnson of DLA Phillips Fox. The documents before me comprised the documents produced pursuant to s 501G of the Act (“the G documents”), which were taken into evidence, together with a number of witness statements tendered by the Applicant. Mr Fidow gave oral evidence in person. Ms Fiona Mason, Therapeutic Manager of the Violent Offenders Therapeutic program gave evidence by telephone, along with Mr Steve Vasporis, a friend of Mr Fidow’s, and Ms Kathy Watson, who currently cares for Mr Fidow’s daughter. A number of Mr Fidow’s family members also gave evidence in person: Ms Anne Siteine, Ms Moana Falealil, Mr Nick Schwenke and Mr Karl Siteine. Mr Fidow’s mother, Ms Mitzi Schwenke-Fidow, gave evidence by telephone from New Zealand.
Issues
5. The issues in this matter are:
(a)Whether Mr Fidow satisfies the character test set out in section 501(6) of the the Act; and
(b)If not, whether the Tribunal should exercise its discretion to set aside or affirm the decision made by the delegate of the Minister to cancel Mr Fidow’s visa.
Relevant Law and Policy
6. Under s 501(2) of the Act, the Minister may cancel a visa if the holder does not satisfy the Minister that the person passes the character test: s 501(2)(a) and (b). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant grounds in the current matter is paragraph (a) as follows:
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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
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7. “Substantial criminal record “ is defined in s 501(7):
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(7)For the purposes of the character test, a person has a substantial criminal record if:
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(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
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8. Under s 499(1) of the Act, the Minister may give written directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. That includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583.
9. On 3 June 2009, the Minister, exercising his powers under s 499(1) of the Act, issued Direction 41 - Visa Refusal and Cancellation under s 501, which came into effect on 15 June 2009. The preamble to the Direction states that it “provides direction on the relevant factors that must be considered in making a decision under section 501 of the Act”. The Direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
The Applicant’s evidence
10. At the hearing Mr Fidow adopted his statement of 30 April 2009 (Exhibit A1), in which he stated that if removed from Australia he would not be able to “continue and better” his relationship with his daughter. His daughter (J) was born on 24 December 2001 and he was present for her birth and helped care for her until his incarceration in 2002. He is willing to do anything to prove himself as a reformed man once released from prison and feels that he is deserving of a second chance. His primary reason for wanting to stay in Australia is to remain close to his daughter, which he cannot do by phone or long distance. He also stated that he has a six year old son (K) living in New Zealand with his mother and her de-facto partner.
11. In an undated statement, faxed from Long Bay Prison complex on 23 June 2009 (Exhibit A2), he explained his situation on arrival in Australia, the birth of his daughter and son and some of the circumstances surrounding his criminal convictions. Upon his release he intends to live with his aunty and uncle and to share custody of his daughter. He has strong family and professional support and his uncle has offered him a job upon his release.
12. In his oral evidence, he stated that he had been raised in Auckland and had attended school to the equivalent of year 11. He initially went to TAFE for a year to study CAD, but because he was required to make a financial contribution to the family, could not continue his studies. He came to Australia first in 1996 and made short return trips to see his family in New Zealand, but always returning to Australia to work.
13. He had first come to Australia with his then girlfriend. She unfortunately suffered a miscarriage and they were devastated. His girlfriend returned to New Zealand and his family here emotionally supported him.
14. In June 2000, he met Carlee while he was working as a bouncer. When Carlee became pregnant (with their daughter) he needed more money because most of his income went on rent. An opportunity that was presented to him for credit card fraud seemed an easy way of making more money, and he did not think of the consequences. At about the same time he was a user of ecstasy and cocaine, to stay awake for work, and also because he liked it.
15. In September 2001 the robbery for which he was imprisoned occurred. He said his main intention had been to ‘confront’ the victim, who had been Carlee’s sister’s employer and had allegedly been harassing her. He contended that the “attack” was unplanned and had “got out of control”. He pulled the injured victim off the roadway and onto the grass verge but conceded he did not call for medical assistance, because, he said, he got scared. Because the victim’s money was in the car, it was easy to take. While he ultimately pleaded guilty to the assault he did not do so until the day of the trial. He explained that he had delayed on the advice of his lawyers, so as to secure a separate trial from his co-accused who was responsible for the actual injuries to the victim.
16. In April 2002, before his arrest, he returned to New Zealand briefly to attend his father’s 50th birthday celebration. There he met up with his former girlfriend and had a ‘one-night stand’, in which his son Karlos was conceived. He continues to keep in regular contact with his son who calls him his “2nd Dad”. Mr Fidow’s former girlfriend is now in a stable relationship and has another child. He does not want to disrupt that family environment, but his relationship with his son is encouraged by the child’s mother.
17. His daughter was only 6 months old when Mr Fidow was arrested, and of that time she spent 2-3 months in hospital.
18. While he has been in gaol (and before Carlee herself went to gaol) Carlee and their daughter had moved districts several times. Carlee has said that she would not give up their daughter, so, he said, he will have to content himself with being close by and having her on weekends and holidays and ‘everyday if [he] could’.
19. He found the 2-year Violent Offenders Therapeutic Program beneficial, and willingly attends the maintenance group sessions. He has learned to be constantly mindful of with whom he should associate and other risk factors, such as security work, which he says he “will never do” again. Mr Fidow said he believes he has changed. He has had 7 years to consider the consequences of his actions. He did not previously think of consequences for himself or the distress his actions might cause his family. He was embarrassed and ashamed when his family found out what he had done. Now he has to think of his daughter.
Supporting witnesses
20. A number of Mr Fidow’s family members gave evidence before the Tribunal.
21. All gave evidence of Mr Fidow’s devotion to his daughter. They knew he spoke to her weekly by phone and had observed them when taking her on visits to see her father in gaol: they were affectionate, kissing and cuddling each other, with his daughter sitting on his knee and jumping into his arms. Mr Fidow’s aunty, Anna Siteine, considered them to have ‘a special bond’. Mr Nick Schwenke thought that the Applicant’s daughter had missed out on her father for 7 years and now needed him. When he takes her to see her father, after having a brief discussion with Mr Fidow, he simply “leaves them (Mr Fidow and his daughter) to it” and has observed their closeness.
22. Ms Kathy Watson, in her undated statement (Exhibit A17) explained that she has had the care of Mr Fidow’s daughter since her mother, Carlee’s, inaceration. She believes that his daughter will be severely affected if she cannot be with her father.
23. In oral evidence, she stated that for the last 12 months J has attended the same school and is in Year 2. Prior to that time, because her mother moved so frequently, she had attended six other schools in less than 2 years of schooling. She also observed that it was Mr Fidow, and not J’s mother who contacted their daughter more often. Mr Fidow’s family frequently contact J and take her out and to see her father and they also have her to stay and give her presents. Because Carlee had previously moved around a lot, the family had, for a while, difficulty maintaining contact with J. Ms Watson understood that Mr Fidow would ‘love’ to have full custody of J on his release from gaol.
24. Mr Fidow’s aunty and uncle, Ms Anna Siteine and Mr Karl Siteine, in their written statements of 9 June 2009 (Exhibits A6 and A12) outlined the change they had witnessed in the Applicant since his incarceration.
25. They gave evidence at the hearing that they had been to visit Mr Fidow in prison with some regularity.. Upon his release from prison he is to stay with them and their family in their four bedroom home. His uncle Karl said he has owned a scaffolding company for about a year. He intends to offer Mr Fidow a labouring job – paying $700-$800 per week on his release from gaol. He can train on the job to be qualified as a scaffolder. Karl is also a church youth worker also sees a role for Mr Fidow assisting there.
26. His aunt thought Carlee was to be released from gaol in about 2 weeks and understood her to be intending to move to Nowra, with a new male friend. It was unclear if J would move with her or if she would stay with Ms Watson, who said she was happy for her to remain in her care.
27. Mr Fidow’s mother said that her son had her full support to remain in Australia, although if he were to return to New Zealand he would similarly have her support. She noted that most of her family are in Australia, and while she has relatives in New Zealand, it is those in Australia with whom both she and her son are closest. She said Mr Fidow had had a normal family upbringing in New Zealand before he left to come to Australia. She described him as ‘a wonderful child’. She has been in contact with J over the years and had visited her in Australia only recently. Prior to that time Carlee had taken J to visit her in New Zealand and she had cared for J for a while there.
28. Mr Vasporas, a close friend of Mr Fidow’s, wrote a statement to the Tribunal dated 1 June 2009 (Exhibit A9). He said that he has known the Applicant for 10 years and found him to be a “generous, loyal, well liked, caring, selfless person.” At the hearing, he gave evidence that he became friendly with Mr Fidow when they were both doing security work. On Mr Fidow’s release from gaol he would assist him in getting a job and drive him to interviews. Up until recently he had visited Mr Fidow in gaol frequently. He said Mr Fidow talks about his daughter ‘all the time’, and wants to spend time with her.
29. In her statement of 8 June 2009 (Exhibit A14), Ms Moana Falealil (first cousin to Mr Fidow), described the Applicant as “a loving, kind and generous person who is striving to make changes in his life for a better future.” She gave evidence at the hearing to this effect.
30. The family’s support for Mr Fidow is unwavering. His mother and other family members believe him to be remorseful and know that he would love to be able to start a new life with his daughter.
31. A touching note (Exhibit A16)– “re-written neatly” by Ms Watson - was provided by 8-year-old J, in which she wrote of her wish to spend the rest of her childhood with her dad and to have the chance to grow up with him.
Other evidence
32. Ms Mason, the Therapeutic Manager for the Violent Offenders Program, gave evidence that Mr Fidow had completed a 16-month program for violent and high risk offenders in April 2007. Since that time he attends a “maintenance group” to address potential relapse issues and to receive coaching in preventative conduct on release. She explained that it is ideal that all violent offenders, after completion of the course, undertake the maintenance program, but not all are suitable, often because of poor performance in the course itself. She considered that Mr Fidow may now be at only a moderate risk of re-offending since he has identified the factors that lead to the commission of the offence in the first place eg, revenge-style thinking, easy money, using violence to solve problems. Ongoing support outside gaol is available, and the Probation and Parole Service frequently recommends attendance, as it has done in this case. She considered that if he were re-engaged as a bouncer then his risk of re-offending would be likely to increase.
Does the Applicant pass the character test?
33. The first issue for me to decide is whether, pursuant to ss 501(6)(a), the Applicant passes the character test having regard to his substantial criminal record.
34. In July 2003 Mr Fidow was convicted of “Robbery in Company with Wounding” for which he was sentenced to 11 years imprisonment for the offence, with a non-parole period of 8 years. When sentenced, seven offences of dishonesty, were also taken into account.
35. I note Paragraph 7.1 of Part A to Direction 41, which specifies that a person does not pass the character test if the person has a substantial criminal record as defined in section 501(7) of the Act.
36. I find that Mr Fidow has a “substantial criminal record” as defined in subsection 501(7) of the Act, as a consequence of the sentences he has received. Accordingly he does not pass the character test.
Should I exercise my discretion in the Applicant’s favour?
37. Having decided that Mr Fidow does not pass the character test, I must consider whether or not to exercise the discretion in s 501(1) to cancel his visa. I am required to have regard to Part B of the Direction as a guide in exercising my discretion.
38. The Direction sets out four primary considerations:
(a)The protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
(b)Whether the person was a minor when they began living in Australia;
(c)The length of time the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and
(d)Relevant international obligations, including but not limited to the best interests of the child, as described in the Convention on the Rights of the Child (CROC) and other international obligations.
protection of the australian community from serious criminal or other harmful conduct, particularly crimes involving violence
39. Paragraph 10.1 of the Direction provides that factors relevant to assessing the level of risk to the community include:
(a)the seriousness and nature of the conduct; and
(b)the risk that the conduct may be repeated.
Seriousness and nature of the conduct
40. Paragraph 10.1.1(1) of Direction 41 states that crimes of violence or crimes involving the threat of violence are to be considered of “special concern to the welfare and safety of the Australian community.” Mr Fidow’s criminal conduct can only be regarded as very serious.
41. In conjunction with at least one accomplice a service station operator was violently attacked and robbed. Although Mr Fidow said that his intention was only to confront the victim, the offence was found to have been pre-planned and calculated. Mr Fidow and his accomplice staged a collision with the victim’s vehicle and the victim was then violently assaulted. His money was stolen and he was left on the side of the road, although Mr Fidow said he at least had pulled him to safety, but admitted he did not seek medical assistance. The victim was on life support and was in a coma for many months and suffered a number of serious permanent injuries: brain damage, loss of function his left arm, blindness in his right eye, and has a reduction in the visual field of his left eye. He is completely dependent upon nursing staff for his daily activities, with the exception of eating. Mr Fidow claimed that the victim had mistreated his ex-partner's sister, which is no excuse for engaging in an activity, which had the potential for such a serious outcome.
42. In his sentencing remarks, Patten J of the District Court conceded that it was “impossible to be satisfied beyond reasonable doubt that he [the Applicant] was directly violent towards him [the victim]. He went on to state that:
Perhaps the most that can be said about the prisoner’s part is that he stood by and watched and that he then left a man to all intents and purposes dying by the side of the road…It is difficult to regard the matter as other than one towards the top of the range of criminality for offences such as this.
43. Paragraph 10.1.1(3) of the Direction states that “the sentence imposed for an offence is considered indicative of the seriousness of the offender's conduct against the community”. Furthermore, I must also give due regard the number and nature of offences, the period between offences and the time which has elapsed since the most recent offence.
44. Mr Fidow received a head sentence of 11 years imprisonment. He was also convicted of a number of offences of dishonesty involving the use of false drivers’ licences to obtain credit cards, producing false names and employment details to obtain a loan, and other similar offences, and these were taken into account in sentencing.
45. He also has an extensive traffic conviction history. While the Tribunal may, in the past, have considered such acts to be very serious, these offences were of much less significance than those for which he is serving a long period of incarceration: Toia and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1142.
46. I have considered the serious nature of the offences for which Mr Fidow was sentenced on 11 July 2003. The most recent of those offences were committed in 2002 and involved crimes of dishonesty. The offence of “Robbery in Company with Wounding” was committed in 2001 and is his only offence involving violence.
Risk that conduct may be repeated
47. A person's previous general conduct and total criminal history are particularly relevant to assessing any risk of re-offending: 10.1.2.
48. Mr Fidow has been incarcerated for the last 7 years. Obviously, he has had, in that time, no further opportunity to re-offend: 10.1.2(a).
49. An applicant's past record is one of the factors to consider in assessing the likelihood of recidivism. Prior to conviction for Robbery in Company with Wounding Mr Fidow had no history of violent criminal conduct.
50. The sentencing judge made comments, which suggested that Mr Fidow had good prospects of rehabilitation. In particular, he noted his strong work ethic and the fact that he has a loving and supportive family. He accepted that “this crime involving such violence was quite out of character with anything known of the prisoner in the past.” Paragraph 10.1.2(b) of the Direction states that the extent of rehabilitation already achieved and any prospect of further rehabilitation is relevant to this assessment.
51. There is evidence that Mr Fidow has taken steps towards his own rehabilitation. A New South Wales Department of Corrective Services Probation and Parole Service report dated 25 June 2008, notes that during his time of incarceration Mr Fidow has participated in a number of educational and vocational programs, as well as offence-targeted programs.
52. The evidence of Ms Mason was that Mr Fidow had successfully undertaken the VTOP course and had not been excluded as a candidate for the maintenance course in which he continues to participate. Had he been considered to be, effectively beyond help, he would, on Ms Mason’s evidence, have been excluded from further participation. The Probation and Parole Service also has recommended that he continue to participate on his release.
53. The solicitor for the Respondent contends that because Mr Fidow claimed that his conduct was motivated by the mistreatment of another person, he has a propensity to exact violent retribution for perceived wrongs against people close to him. As such there is uncertainty as to how he might react in the future if a member of his family was threatened.
54. I agree with the view of Mathews J in Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56 at [51], that “Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending”. It is doubtful though that even the most optimistic of rehabilitation providers to the prison community would suggest that “no risk of re-offending” was an appropriate prognosis except in the rarest of cases. In any event, this is not the test I am to apply and every matter necessarily involves speculation as to what might or might not occur when offender returns to the community.
55. In her report the Probation and Parole officer noted that Mr Fidow has received positive feedback in relation to his participation in the VOTP and, overall, that was the cautious view of Ms Mason. Mr Fidow himself professes to be changed. A number of times he spoke of the risk factors and his need to avoid situations, which might lead him back to criminal activities. He has also taken steps towards rehabilitation, including participation in a number of “self betterment” programs whilst incarcerated.
56. With respect to paragraph 10.1.2(c) of the Direction (relating to an Applicant's failure to abide by a Court order), I note that Mr Fidow appears to have contravened a court order in New Zealand when he was convicted of driving whilst unlicensed, and in Australia, when he was convicted of a similar offence. These transgressions however, are of relatively little consequence, and the more important issue is the likelihood of recidivism in respect of more serious offences.
57. In conclusion, as to the risk that the conduct may be repeated, I note that in Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198 the Full Court of the Federal Court held that a real risk of recidivism is one which is not far-fetched or fanciful and can include a low or minimal risk. The sentencing judge was of the view that Mr Fidow had good prospects of rehabilitation. Mr Fidow told me that he is a changed man and that he lives for his daughter. The evidence of family and friends is to the same effect. He has a very supportive family network here and does not want to disappoint them again. He has accommodation arranged and has a guaranteed job for his release. The evidence of Ms Mason and the Probation and Parole officer was reasonably positive as to his prospects.
58. Mr Fidow has had 7 years to change and consider the consequences of his actions. He did not previously think of consequences for himself or the distress his actions might cause his family. He was embarrassed and ashamed when his family found out what he had done. Now he has to think of his daughter.
59. Having said that though, I accept that there remains some risk that the conduct will be repeated.
Was the Applicant a minor when he began living in Australia?
60. This consideration is irrelevant in these proceedings as Mr Fidow first arrived in Australia to live in 1996 and was then aged 22.
What was the length of the Applicant’s ordinary residence in Australia prior to engaging in criminal activity?
61. Paragraph 10.3 of the Direction notes that the longer the period of residence in Australia, the greater the likelihood of significant ties to the Australian community and therefore, more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character. The Direction states that it is the time spent ordinarily resident in Australia prior to engaging in criminal or negative activity that is important in this consideration.
62. Mr Fidow was ordinarily resident in Australia for five and a half years prior to the commission of the violent offence in September 2001. From his evidence the prior dishonesty offences all occurred at some time in 2001, about five years after his arrival in Australia.
63. The length of Mr Fidow’s ordinary residence in Australia prior to the commission of a criminal offence is not such as to be heavily weighed against cancellation of the visa.
International obligations
the best interests of the child
64. There do not appear to be any international obligations, which arise in this matter other than the best interests of the child.
65. Mr Fidow has two young children: a daughter (J) and a son (K), who are Australian and New Zealand citizens, respectively.
66. After the hearing Mr Johnson for the Respondent submitted that it is the best interest of J that I am to take into account as a primary consideration. Part B, paragraph 10.4 (1) of Direction 41 provides that if there is a child in Australia who is potentially affected by a visa refusal or cancellation decision, decision-makers must have regard to the best interests of that child. It is generally presumed that a child's best interests will be served if the child remains with its parents: para 10.4.1(4). Paragraph 10.1.4(5) of the Direction provides a number of factors that the decision maker should have regard to when considering the best interests of the child.
67. Despite his incarceration, Mr Fidow and J appear to have a close relationship. I base this not only on his evidence but the observations of his family and friends. J’s note to the Tribunal similarly suggests this to be the case. Of particular relevance was the evidence of Ms Watson that it is Mr Fidow, and not J’s mother who makes most frequent contact with the child. His contact, it appears, is both regular and meaningful. His responsibility with respect to his child is a major factor in his belief that he has reformed.
68. Mr Fidow has not been in a position to assert parental rights, because he has been in gaol since J was only a baby. Their relationship has continued throughout that time, despite his incarceration. On release he proposes to live near J so he can have regular access. He told Ms Watson that he would “love” to have J full time, which may mean that he will seek full custody. It is inappropriate to speculate on the outcome of such an application, but I note that both J’s parents have been imprisoned, so Mr Fidow’s claim, as against J’s mother, may not be necessarily be significantly disadvantaged because of his history.
69. An important consideration in this matter is the likely effect on J of separation from Mr Fidow. Mr Fidow and J speak on the phone every week and she visits when possible. More regular visits are difficult due to distance constraints. From his evidence and the evidence of others, which I accept, they have a close and loving relationship. This has, no doubt, required some considerable effort by Mr Fidow and his family over the years since his incarceration because J was only a baby when he first went to gaol. It is perhaps remarkable that the strong bond that they have developed has been possible despite his incarceration. His removal from Australia will put serious limitations on that relationship. The Respondent submits that because Mr Fidow has maintained the majority of his contact with his daughter by telephone, there is no reason why they cannot continue to do so using the Internet and the telephone (See generally Tumanako and Minister for Immigration and Multicultural Affairs [2006] AATA 848 at [88]). The furtherance of the close personal relationship developed with J throughout Mr Fidow’s incarceration would be hampered if his visa were cancelled.
70. It is unlikely that Mr Fidow on his release would resume a de facto relationship with J’s mother, Carlee, who is an Australian citizen. He had previously described the relationship as 'on standstill' whilst he is incarcerated. However, on in his 'Personal Details Form' submitted to the Department he stated that he did not wish to reside with Carlee when he was released from prison. Carlee is now in prison and intends to reside with another man on her release. The nature of Carlee’s offence is unknown, but was sufficiently serious that a custodial sentence was imposed notwithstanding that she had the sole care of a child. The child has been left in the care of Ms Watson, a friend. Unlike Mr Fidow, Carlee apparently has a limited support network. She has moved around, and on release from gaol, is to re-locate to yet another area. It is unknown what capacity she will have to care for and support a child. Mr Fidow on the other hand, on his release from gaol has somewhere to live, a job, and a high level of family support. Mr Fidow said that Carlee would never give J up. It is doubtful that J would be likely to accompany Mr Fidow overseas in the event he is removed from Australia.
71. I find that J’s best interests do not favour cancellation.
Other considerations
72. Paragraph 11 of the Direction allows for other matters to be taken into account but on the basis that they generally be given less weight than the primary considerations. Those relevant with respect to Mr Fidow include, family ties, the person’s age and health, links to the country to which they will be removed, any hardship likely to be suffered by the person or family members resident in Australia and any previous warnings of visa cancellation.
73. Family ties, the nature and extent of any relationships: It is doubtful that Mr Fidow could be said to remain in a de facto relationship with Carlee, an Australian citizen. He does, however, have a daughter here and an extensive family network.
74. The person's age and health: Although Mr Fidow has high blood pressure, it is improbable that he would not be able to source the relevant medication for the condition in New Zealand.
75. Links to the country to which they would be removed: Mr Fidow has ties to New Zealand, including family ties, which includes his mother, and his son. He moved to Australia in 1996, having spent his formative years in New Zealand.
76. Hardship likely to be experienced by the person or their immediate family members lawfully resident in Australia: The Respondent accepts that Mr Fidow is likely to face some significant personal hardship if his visa is cancelled, as he will be physically removed from his daughter. J will lose the stability that her father appears to provide in her life. Having regard to their apparent closeness, his family in Australia would also be expected to suffer some hardship if his visa were cancelled.
77. Whether the person has been formally advised in the past by the Department about conduct that brought the person within the deportation provisions of the Act or the character provisions of the Act: Mr Fidow was not formally warned by the Department, prior to the commission of his offences, about the possible cancellation of his visa.
78. On balance, the other considerations, especially that in relation to the hardship to Mr Fidow and to his daughter, weigh against cancelling the visa.
Conclusion
79. Mr Fidow does not pass the character test as a result of his substantial criminal record.
80. It is inescapable that Mr Fidow’s offences were serious and I have given considerable weight to the primary consideration of whether the Australian community will be protected from serious criminal or other harmful conduct, particularly crimes involving violence. I have found that although he may have good prospects of rehabilitation there remains some risk that he may re-offend, especially if he were to again work as a bouncer and again take drugs. On the other hand his strong family support, and especially the promise of accommodation and a job, coupled with his devotion to his daughter, militate against him resuming that lifestyle.
81. In regard to the other primary considerations, it is accepted that Mr Fidow was not a minor when he arrived in Australia and that he was resident in Australia for approximately five and a half years prior to engaging in criminal activity. I have given these facts due consideration.
82. The primary consideration of the best interests of the child in this case does not favour cancellation. That consideration and the other considerations relevant to this case outweigh the remaining primary considerations, including the protection of the Australian community, such that the discretion in section 501 of the Act should be exercised in Mr Fidow’s favour.
Decision
83. The decision under review is set aside.
I certify that the 83 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Naida Isenberg
Signed: .........................[sgd]..................................................
Renee Wallace, AssociateDate/s of Hearing: 30 June 2009
Date of Decision: 17 July 2009
Solicitor for the Applicant: Unrepresented
Solicitor for the Respondent: Mr G Johnson, DLA Phillips Fox
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