Fisher and Minister for Immigration and Multicultural Affairs
[2006] AATA 714
•18 August 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 714
| ADMINISTRATIVE APPEALS TRIBUNAL GENERAL ADMINISTRATION DIVISION | ) ) No: N2006/688 ) | ||
| Re: | RICARDO FISHER | ||
| Applicant | |||
| And: | MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS | ||
| Respondent | |||
| DECISION | |||
| Tribunal | The Hon R N J Purvis AM QC, Deputy President | ||
| Date | 18 August 2006 | ||
| Place | Sydney | ||
| Decision | The decision under review is affirmed. | ||
______________________________
The Hon R N J Purvis AM QC
Deputy President
CATCHWORDS
IMMIGRATION – cancellation of transitional (permanent) and transitional (temporary) visas – whether Applicant passes character test – Fijian national – substantial criminal record – whether discretion should be exercised – protection and expectation of the Australian community – deterrence – best interests of a brother – hardship to immediate family – decision under review affirmed.
Migration Act 1958; section 501
Ministerial Direction No 21
REASONS FOR DECISION
| 18 August 2006 | The Hon R N J Purvis AM QC, Deputy President |
| the application |
On 1 June 2006 a delegate of the Minister for Immigration and Multicultural Affairs (“the Respondent”) made a decision to cancel the visas then held by Mr Ricardo Fisher (“the Applicant”) on the ground that he did not pass the character test provided for by section 501 of the Migration Act 1958 (“the Act”). The discretion available to the Respondent was not exercised in the Applicant’s favour.
The visas that were cancelled were described as two Transitional (Permanent) visas and one Transitional (Temporary) visa. The Applicant with the other members of his immediate family had become the holder of the visas by approval of an officer of the office of the Minister for Immigration and Multicultural Affairs on 15 October 2001.
In the reasons given by the Respondent in support of the cancellation decision it was stated amongst other matters:
“…
(68)Mr Fisher has two recorded convictions at Parramatta District Court on 7th of March 2003 for threaten injury to person with intent to commit indictable offence and robbery armed with offensive weapon (two counts) …
(69)As a consequence of the … sentence Mr Fisher is deemed to have a substantial criminal record under section 501(7)(c) of the Act and is deemed not to pass the character test under section 501(6)(a) of the Act.
…
Discretion
(73)Having formed the necessary suspicion that Mr Fisher does not pass the character test and determined that Mr Fisher was unable to satisfy me that he passes the character test I considered whether to exercise my discretion to cancel the visa of Mr Fisher.
…
Seriousness and nature of conduct
(76)Mr Fisher has been convicted of offences which involve violence or the threat of violence and theft. His conduct has caused serious disruption to the Australian community and has caused members of the community to have concerns for their own safety and that of their property. I consider this conduct to be very serious.
(77)The nature of Mr Fisher’s conduct and its effect on the community is such that I gave this consideration great weight having taken the view that the Australian community is entitled to protection from such conduct.
Risk of recidivism
(78)Mr Fisher offended as a juvenile and continued his criminal behaviour as an adult through from 1995 to 2003.
(79)Mr Fisher has been punished for misconduct in prison three times from 2003 to 2005.
…
(83)I found it moderately likely that he may re-offend and placed some weight on this consideration.
Deterrent to others
(84)In considering whether the cancellation of Mr Fisher’s visa would act as a deterrent to other non-citizens who might engage in similar activities I found that cancellation in this instance may provide a deterrent effect.
…
Expectation of the Australian community
…
(87)I considered that the Australian community would not look favourably on Mr Fisher because the nature of his latest offences is of serious concern to the Australian community.
(88)I considered that the Australian community would not look favourably on Mr Fisher’s criminal behaviour and would expect his removal from Australia.
(89)I considered that the Australian community would have some compassion for Mr Fisher given that he has resided in Australia for over 19 years and that his parents, grandparents and one sibling are Australian citizens.
…
(91)In view of Mr Fisher’s criminal behaviour and the seriousness of his latest offences I found that the Australian community would expect Mr Fisher’s visa to be cancelled and for him to be removed from Australia.
…
Best interests of the child
…
(94)Mr fisher has no children … however Mr Fisher has a younger brother, Charles Reno Fisher, an Australian citizen now 17 years old and attending high school. … I am satisfied that Charles Reno Fisher, a child under the age 18 years residing in Australia could be adversely affected by this consideration.
…
(97)… I accepted that returning Mr Fisher to Fiji would cause him hardship given that his relatives overseas may not be in a position to offer assistance to him and that his parents, grandparents and one sibling are all Australian citizens. …
(98)… It is accepted that Mr Fisher’s parents will suffer considerable hardship however their situation may be slightly alleviated by the fact that their youngest son is in Australia.
…”
the issues
The issues for determination in this application are whether:
(a)The Applicant fails to pass the character test by reason of his having a substantial criminal record within the meaning of section 501(7)(c) of the Act having been sentenced to a term of imprisonment of 12 months or more; and
(b)The discretion available to the Tribunal to cancel the Applicant’s visa should or should not be exercised in his favour.
the hearing of the application
At the hearing of this application the Applicant was represented by his grandfather Mr Andrew Miller and the Respondent by Mr Avenish Chand, solicitor of Clayton Utz Lawyers.
The documents lodged with the Tribunal and served upon the Applicant pursuant to section 501(G) of the Act were admitted into evidence and marked G1 to G15. Other written material tendered by and on behalf of the parties was admitted as Exhibits and marked accordingly:
Exhibit A:Letter dated 26 July 2006 from Mr A Miller (the Applicant’s maternal grandfather) to the AAT;
Exhibit B:Letter dated 20 March 2006 from Mr A Miller to the Department;
Exhibit C:Letter dated 12 June 2006 from Mr N Jones to the AAT;
Exhibit D:Letter dated 8 June 2006 from Mr C and Mrs E Fisher (the Applicant’s parents) to the AAT;
Exhibit E:Letter dated 8 June 2006 from Mr A and Mrs L Miller (the Applicant’s maternal grandparents) to the AAT;
Exhibit F:Letter dated 7 June 2006 from Ms N Miller to the AAT;
Exhibit G:Letter dated 8 June 2006 from Fiji Australia to the Department;
Exhibit H:Letter (undated) from Roots Radio to the AAT; and
Exhibit J:Letter dated 18 July 2006 from Mr A Miller to the AAT;
Exhibit 1:Letter dated 17 October 2001 from the Department to Mr and Mrs Fisher and Family.
The Applicant and his father, Mr Charles Fisher, were each cross-examined on their evidence.
relevant legislation and ministerial direction
The provisions of the Act relevant to this application are as follows:
“501
…
(2)The Minister may cancel a visa that has been granted to a person if
(a)The Minister reasonably suspects that that person does not pass the character test; and
(b)The person does not satisfy the Minister that the person passes the character test.
(c)…
…
(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 in subsection 7); or
…
… otherwise the person passes the character test.
(7)For the purposes of the character test a person has a substantial criminal record if;
(a)…
(b)…
(c)The person has been sentenced to a term of imprisonment of 12 months or more; or
…”
If the Tribunal is satisfied that the Applicant does not pass the character test then the discretion provided in section 501(2) of the Act is available to it. In exercising the discretion, Ministerial Direction 21 is to be followed with the Tribunal having regard to the three primary considerations and a number of other considerations referred to in that direction. The Tribunal is to have regard to the importance and weight placed by the Minister on the primary considerations. Other considerations are also to be given appropriate weight, any one of which is not to individually outweigh a primary consideration.
Paragraph 2 of the Ministerial Direction 21 as here relevant states:
“Protection of the Australian Community
2.4The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australia community. The Government is especially mindful to take reasonable steps to protect the safety of the more vulnerable members of the community such as children and young people especially at risk. This is of particular importance when the offences in question are in relation to drugs and crimes of violence.
2.5The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(a)The seriousness and nature of the conduct;
(b)The likelihood that the conduct may be repeated (including any risk of recidivism); and
(c)Whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence)
Seriousness and Nature of the Conduct
2.6It is the Governments view that the following are examples of offences considered by the Government to be very serious:
…
(f)Murder, manslaughter, assault or any other form of violence against persons;
…
(n)Any other crimes involving violence or the threat of violence.
Such crimes are of special concern to the welfare and safety of the Australian community.
…”
Further, Ministerial Direction 21 provides that:
2.7It is the Government’s view that the sentence imposed for a crime is an indication also of the seriousness of the offenders conduct against the community.
Decision makers should have due regard to the Government’s view in this respect including:
(a)The extent of the person’s criminal record including the number and nature of offences, the time between offences and the time that has elapsed since the most recent offence;
(b)The repugnance of the crime;
(c)Crimes involving violence or fraud against defenceless persons such as children, the elderly, the disabled and the incapacitated (are especially repugnant to the whole community).
…
2.10It is the Government’s view that the person’s previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism. In particular the following factors will be relevant to the assessment
(a)a non citizen commits a further offence after having been warned previously about the risk of refusal or cancellation;
(b)a non citizen with several previous convictions in Australia should be considered as having an increased risk of recidivism in light of that past behaviour. In cases where there is a gap or gaps between convictions the inference may be open that the non-citizen has demonstrated that a substantial period since an earlier conviction is not a reliable indicator that future offences will not be committed;
(c)The extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make;
General Deterrence – the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) offence by other persons
2.11General deterrence aims to deter other people from committing the same or a similar offence. While not a conclusive factor in itself, general deterrence is an important factor in determining whether to refuse or cancel a visa. The general deterrence factor may be relevant in a number of ways:
(a)The nature of the offence may be as such that the visa refusal or cancellation may deter others from committing similar offences; and
Expectations of the Australian Community
2.12The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. Decision makers should have due regard to the Government’s view in this respect.
The Best Interests of the Child
2.13This consideration only applies if the child is or would be under the age of 18 years when the decision comes into effect. The best interests of any children aged 18 years or more is not a primary consideration but may be considered with other considerations under paragraph 2.17.
…
2.17When considering the issue of visa refusal or cancellation other matters, although not primary considerations, may be relevant. It is the Government’s view that where relevant it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations. These other considerations may include:
(a)The extent of disruption to the non-citizen’s family, business and other ties to the Australian community
(b)…
(c)The degree of hardship which would be caused to immediate family members lawfully resident in Australia including Australian citizen (including whether the immediate family members are able to travel overseas to visit the non-citizen); the nature of the relationship between the non-citizen and the immediate family members; whether immediate family members are in some way dependent on the non-citizen for support which cannot be provided elsewhere
(d)Family composition of the non-citizen’s family both in Australia and overseas
…
(h)Any evidence of rehabilitation and any recent good conduct
…”
factual situation generally and findings of fact
The Applicant was born in Fiji on 26 August 1980. He first arrived in Australia with his father, mother and brother, Norman, on 23 August 1987 being granted a temporary entry permit. The family members were admitted as visitors. As a consequence of various visa applications made by the father on behalf of himself and his family, eventually on 15 October 2001 the Applicant was granted a subclass 812 Permanent visa (now known as a Transitional (Permanent) visa) and a class BF subclass 154 Permanent visa (now known as Transitional (Temporary) visa).
The Applicant attended school in Australia until Year 9 living with his parents. In about 1998 he formed a relationship with Ms Ariana Stephenson and lived with her for about four years until December 2001. It was at that time that the relationship terminated by reason of Ms Stephenson becoming associated with another person (G54).
After leaving school the Applicant had few employment prospects. He worked as a dock hand for a freight company, for a furniture removalist as a labourer and as a forklift driver. He says (G54) that he “started roaming around and hanging out with teenagers my age. We got up to mischief and started stealing cars and breaking into houses … my parents did not know what to do. If they tried to punish me and discipline me I would only run away and get into more mischief”.
As appears later in these reasons, from 1997 up until 2002 the Applicant was involved in numerous anti-social acts which resulted in his coming before the courts. In March 2003 as a consequence of his criminal conduct in June 2002 the Applicant was sentenced to a term of imprisonment. He has recently been released from jail and is presently at Villawood Detention Centre.
The Applicant says that whilst in jail he took every opportunity to better himself. He participated in various educational courses including small business management, business services training, general education for adults, general introduction for construction work, information technology, health training, first aid, automotive mechanical light vehicle maintenance, stress management, reading and writing, reading for knowledge, workplace skills and computer applications keyboarding. He also completed a relapse prevention course in the area of drug and alcohol.
The Applicant has family support “to help me get on my feet”. He says he has employment available with a firm Ace Roller Shutters or alternatively, Root’s Radio, the owner of which states that the radio station is prepared to offer support to the Applicant and provide him with a “secure job opportunity for his future in Australia”. The radio station guarantees the Applicant a traineeship as an apprentice and will also provide accommodation for him. As stated by the owner/manager “I sincerely believe that Ricardo is a changed person and having spoken with him I know that he has and that he has learnt a very bitter lesson by being in prison for so long and away from his immediate family. He has proved this by undertaking various courses whilst he was imprisoned in order to be able to re-enter the Australian community” (Exhibit H).
The Applicant’s parents, maternal grandparents and a brother lived in Australia as Australian citizens. Two aunts live in Australia as permanent residents. He has another brother, Norman, who whilst having at one time obtained permanent residence has had his visa cancelled under section 501 of the Act.
criminal history of the applicant including sentencing observations
I note the following criminal history of the Applicant:
| “Convictions as a juvenile: 1995 to 1997 | ||
| Charge date | Description | Sentence |
| 1995; 20 November | Break, enter & steal | 1995; 30 November Good behaviour bond, attend school regularly and not associate with co-offenders |
| 1995; 13 December | Break & enter (3 counts) | 1996; 16 April 50 hours community service |
| Steal motor vehicle (9 counts) | 12 months good behaviour bond, to live with parents and obey reasonable directions | |
| Unlicensed driver (4 counts) | 12 months good behaviour bond, to live with parents and obey reasonable directions | |
| Possess prohibited weapon | 12 months good behaviour bond, to live with parents and obey reasonable directions | |
| Accessory after the fact (steal conveyance) | 12 months good behaviour bond, to live with parents and obey reasonable directions | |
| Obtain property by false pretence | 12 months good behaviour bond, supervision Juvenile Justice Branch | |
| Possess implement to enter conveyance | Good behaviour bond, supervision Juvenile Justice Branch | |
| 1997; 4 July | Robbery in company | 1997; 25 November 12 months supervision under the Juvenile Justice Branch, attend work or training, follow parents’ direction |
| 1997; 5 July | Robbery in company, cause wounding | 1997; 25 November 12 months supervision under the Juvenile Justice Branch, attend work or training, follow parents' direction |
| 1997; 8 December | Goods in custody reasonably suspected of being stolen | 1998; 23 February Probation, 18 months, to not enter Kings Cross area. |
Convictions as an adult | ||
| Charge date | Description | Sentence |
| 1999; 10 May | Common assault | 1999; 25 August Recognisance, fined $500 |
| 2002; 21 February | Travel on train without valid ticket | 2002; 14 March Fined $200 |
| Give false and misleading information | Fined $200 | |
| Wilfully use offensive language | Fined $200 | |
| Wilfully put feet on seats | Fined $200 | |
| Resist officer in execution of duty | Fined $1,000 | |
| 2002; 4 June | Robbery armed with offensive weapon | 2003; 7 March/11 April Imprisonment 5 years, non-parole 2 years, commencing 2 June 2004 concluding 1 June 2006 |
| Threaten injury to person with intent to commit indictable offence | Imprisonment 5 years, non-parole 2 years, commencing 2 June 2004 concluding 1 June 2006 | |
| Traffic offences | ||
| Charge date | Description | Sentence |
| 2002; 18 March | Unlicensed driver | Fined $839 |
| 2001; 20 March | Unlicensed driver | Fined $329 |
| Detention punishment details: 2003 to 2006 | ||
| Charge date | Description | Sentence |
| 2003; 14 February | Fail urine test | 42 days off contact visits |
| 2003; 3 December | Fail urine test | 84 days off contact visits |
| 2005; 1 February | Fail to attend muster | Reprimand and caution” |
sentencing observations
In the course of delivering his reasons for sentence the sentencing judge on 7 March 2003 made the following observations (G7):
“Richard Andrew Fisher has pleaded guilty to … rob … whilst being armed with an offensive weapon, to wit, 30 centimetres bladed knife. … He further pleaded guilty to a charge that he, on that same day and at the same place, did threaten injury to a certain person, … with intent to prevent his lawful apprehension. …
… This offender was armed with a 30 centimetre bladed knife and the other male person was armed with a firearm. At that time there were a considerable number of people in the Tavern, both in the gaming area and the bar area. …
This offender entered the gaming area and threatened everyone present with the knife. …
… This offender was then grabbed by the police officer and a struggle took place between then. … When he apparently realised that his efforts were in vain, the offender said to the third offender, stab him, stab him. …
The struggle between this offender and the police officer continued in and out of the stolen vehicle. Both offenders were involved in that assault.
…
During the robbery many witnesses at the scene were threatened with the knife and/or the firearm. At times those weapons were pointed directly at those persons and, in one case, a person was forced to the floor.
When apprehended the offender refused to be interviewed.
… The Constable said that throughout the incident both offenders appeared to be calculated and rehearsed in their movements. They appeared to him, very much, to be working as a team.
…
I have also had the benefit of seeing several references, including references from the offender’s grandparents and his mother and father. I have read them very carefully and I have regard to what is in them. Clearly, all his relatives are gravely upset and disappointed at what has taken place.
…
The offences committed by the offender are all of a particularly serious nature. …
…
… in my view the offender played a major part in all the offences to which he has pleaded guilty.
…
… Over four thousand dollars was taken and … the victim, says that she feared for her life.
…”
character
There is not any issue that the Applicant by reason of the provisions of section 501 of the Act is a person not of good character. The period of his sentence alone is sufficient to make this finding. It is necessary then to turn attention to a consideration of the discretionary factors more particularly protection of the Australian community, the expectation of the Australian community and the best interests of the Applicant’s brother. It will then be necessary to consider the other relevant factors prime amongst which are the hardship that may be experienced by the Applicant and members of his family if the visas remain cancelled.
discretionary considerations
The offences for which the Applicant was imprisoned are very serious. They represent assault upon the person of others. They show a complete lack of respect for the welfare and property of people who presented no threat to the Applicant. They negate basic principles of civilised human behaviour.
Having regard to the criminal history of the Applicant, it may be said that the acts of anti-social conduct perpetrated by him extending over a number of years culminated in the events of June 2002. The Applicant was attuned to engage in such conduct. The Tribunal is minded of the comments of the sentencing judge and does not accept that the Applicant was induced to commit the criminal acts by the persuasion of others. He was found to be a principal offender. He was an active and willing participant.
There is evidence placed before the Tribunal as to the more recent conduct of the Applicant and there are subjective assessments made of him by relatives and others. However as at the time of his being sentenced so at the hearing of this application, “all his relatives are gravely upset and disappointed at what has taken place”.
Fiji Australia Community Development Inc (Fiji Australia) by its President speaks of her knowledge of the family and problems associated with integrating into the Australian environment. The evidence before the Tribunal is not however consistent with the Applicant experiencing “continuing harassment from co-accused to get involved in committing this offence” as stated in the letter of 8 June 2006 from Fiji Australia to the Respondent. Nor is his history of criminal activity as a juvenile and young adult consistent with his having lived a “life of peace, love and unity” as also maintained by Fiji Australia (G58). He offended against the Australian society over a period of not less than seven years and the presence of his Fijian community was to no avail. The Tribunal does not question the commitment given by the President of Fiji Australia but “cultural respect” as mentioned by the President is that which the Applicant needed when in his youth. If he had then had it he may well not have offended.
It is said by the Applicant’s maternal grandparents that the Fiji Australia association and more particularly its President, “would like to use Ricardo as an example to other members of our Fiji/Australian community that our youth can be educated through Ricardo’s example by not resorting to criminal behaviour because by doing so [the President] will show by Ricardo’s example that the penalties of these crimes are extremely serious indeed with the final decision of visa cancellation and deportation as an exceptionally unfavourable and bitter lesson to be learnt”. The problem with this contention is that if the visas are not cancelled then the Applicant is seen as one who has escaped from the consequences of his criminal conduct. It is more likely in the context of deterrence that the cancellation of the visa would result in “other members of our Fiji/Australian community” not engaging in similar conduct.
The Applicant’s parents tell of the Applicant becoming involved “with a gang of youths in the punchbowl [sic] area and went onto [sic] participate in different crimes ranging from house robbery to riding around in stolen cars with the gang members” (G61). They narrate his anti-social conduct and his associating with other “undesirable” young people and of these people waking him up on the evening of 3 June 2002, the night when he threatened the lives of others with a knife. It is of moment to note that the Applicant in giving his evidence before the Tribunal and seeking to cast blame on his associates said that he had been drinking with them since 3 pm that day, a statement inconsistent with that of his parents.
The parents express love for their son and concern at the prospect of his return to Fiji. They are fearful for his safety and prospects in that country. They would be distressed if he should be deported.
Ms Ariana Stephenson, the lady with whom the Applicant had a four-year relationship, says in a written statement:
“…
I believe with Ricardo’s support through his family, friends and myself his return home will be the next step towards our desired outcome in life and the rebuilding of our family. With the comforts of home and familiar surrounding I believe Ricardo would have ambitions and dreams he could finally achieve, have a clear vision and positive intentions to pursue a stable career and better lifestyle and to comfortably move forward with any hesitations.
Without the support of his family, friends and myself and the pressure of unfamiliar surroundings, I feel Ricardo would feel isolated, as though he was incarcerated all over again, be a lost soul, he would have no clear outlook on his life and the pressured of isolation could result in suffering emotionally and just giving up.
…”
The Applicant’s maternal grandparents support his release into the community maintaining that he has been rehabilitated. They stated (G68):
“…
Ricardo wants to be a good model ex-prisoner, totally reformed and a good companion and guardian to his innocent youngest brother. He pledges that he will never allow any undesirable persons, family friends or anyone to tempt and mislead his youngest brother who has not been tainted with this embarrassing and shameful experience. …
…”
Further In their evidence before the Tribunal (Exhibit A, pages 2 and 4) the grandparents say:
“...
4.Ricardo understands the nature and seriousness of his crime. He realizes the errors of his ways which were mainly due to his young age and rebellious stage. He now realizes the danger and the consequences of his actions and the effects on his life and his family. He knows that ultimately, his actions brought stress, hurt, shame and anxiety to his family and he has show genuine remorse for this. The fact that it also affected his father, mother, grandparents and brother’s emotional wellbeing has had a very severe effect on his mental health.
...
13.Ricardo has been lawfully in Australia for some 18 years. His youngest brother, Charles Junior who is now 16 years old was born here and looks upon his brother for guidance and companionship. He is very distraught and looks forward to the release of his brother. Charles Jr, his parents and all of us Australian citizens have been looking forward to Ricardo being back with us. We are a very strong, loving, Christian, law-abiding family and always support each other. If Ricardo were to be deported it would utterly and totally shatter his family emotionally. The effect on our health and financial situations would be affected severely but we would continue to support him regardless as we believe in him.
…”
Whilst the Tribunal does not doubt the sincerity of Mr Miller, the evidence before it does not reflect or indicate that guidance and companionship was extended to the Applicant or if extended had little or any effect during his younger years, to the contrary, his conduct and behaviour exhibited a rebellious young man who had little regard for the welfare of others.
The Applicant’s aunt, Ms Noeline Miller, says at G71-72:
“…
Ricardo is deeply ashamed of the hurt he has caused to his parents and younger brother and the negative affect it has had on our entire family. … They [the parents] absolutely do not condone the behaviour of Ricardo, but they are convinced that he is truly remorseful and they only want to be given the chance to have their son home so they can work on rebuilding their family unit (G71).
…
Sending Ricardo back to Fiji would only serve to punish this family and have them suffer even more grief and heartache. This would put a financial strain on their family on top of the emotional stress that would be caused.
The sins of the son should not be visited upon the parents and deporting Ricardo back would be punishing his family unfairly. Nobody on this earth should be punished like this. Ricardo has served his time and his family have also paid the price for his being incarcerated – don’t let them suffer any more (G72).”
Mr Nathan Jones, manager for the Service Development and Finance section of the Office for Aboriginal and Torres Strait Islander Health, has known the Applicant for approximately 12 years. He maintains a belief that the Applicant:
“…
… is genuinely rehabilitated and feels a deep sense of remorse for his actions. …
…
… I truly believe that Ricardo’s incarceration has forced him to re-evaluate his life and determine what is important to him and what he wants to achieve. …
… all of his support networks are here. … He does not speak Fijian and is not well acquainted with their customs or way of life for all intents and purposes he is an Australian. … Given his young age and the fact that he has committed himself to and virtually completed a process of rehabilitation deportation does not seem commensurate with the offence.”
best interests of charles
The maternal grandparents maintain that a deportation of the Applicant will adversely affect Charles who is now 17 years of age “and has been without his older brother for the past 4 to 5 years”. The grandparents contend that the family is close and the cancellation “of the visa of his middle brother, Norman Fisher affected him very badly particularly in his school work”. If Charles’ brother Ricardo’s visa is cancelled the grandparents “are not sure and are very concerned how this will affect him. We feel that if Ricardo were to be released and through his total rehabilitation and experience of being on the wrong side of the law at a young and impressionable age, he can be a lesson to his youngest brother and educate him on the negative effects a life of crime would have on a young person” (Exhibit E p3).
The aunt, Ms Noeline Miller, speaks much to the same effect. She says that Charles was looking forward to being reunited with the Applicant and “when he found out what had happened to Ricardo he became severely traumatised and upset and expressed a wish to quit school”. She maintains that Charles is close to the Applicant and in the event of the visa being cancelled Charles “would feel as though he too, were being punished”.
The Tribunal accepts the bonding referred to by the grandparents and the aunt even be it that the Applicant has been incarcerated now for a number of years. Charles has been in regular contact with his brother.
Charles is now 17 years of age and should be in a position to make an assessment of the appropriate social conduct of a resident in Australia. Whilst as it has been maintained there will be some adverse affect upon Charles in the event of his brother being deported, there would be a strong indication to him and to others as to the consequence of engaging in like conduct.
other considerations
The Applicant has relatives in Fiji but on the basis of the evidence before the Tribunal they would not be in a position to assist him financially. On the other hand his family in Australia it is said would be able to support the Applicant in re-establishing himself. The grandparents maintain that the Applicant’s “psychological emotions would be deeply affected if he were to be sent to Fiji, away from his parents and youngest brother, his immediate family” (Exhibit E p3). Whilst Fiji was the place of his birth and “the origins of his family” it is said that the Applicant “considers himself to be Australian”. It would be difficult it is said for the Applicant to obtain employment in Fiji and his family in Australia may well need to support him. Again, Ms Noeline Miller contends that if he were returned to Fiji this “would be detrimental to his mental health and emotional wellbeing” (Exhibit F p3).
submissions and decision
The Respondent maintains and the Tribunal accepts that the more recent criminal conduct of the Applicant was of a very serious nature involving armed robbery, assault and threat of violence. The findings and observations of the sentencing judge have been earlier set forth in these reasons. They are consistent with the Applicant threatening a number of people when armed with a knife, his co-offender being armed with a firearm and of his threatening to cause serious injury to a police officer. The criminal history of the Applicant when a juvenile and an adult when considered in its totality was not only very serious but progressive.
The likelihood of the Applicant engaging again in anti-social conduct cannot be disregarded. Being mindful of the criminal conduct of the Applicant over the years from 1995 to 2002 and the incidents whilst incarcerated the Tribunal is not confident that the Applicant will not re-offend. Whilst it is true to note that relatives and others have expressed confidence in the Applicant not so re-offending, his criminal history is not such as to give the Tribunal such confidence or enable it to support their protestations. The likelihood of his re-offending especially if he should renew his criminal contacts cannot be discounted.
It is maintained on behalf of the Respondent that cancellation of the Applicant’s visas may prevent or discourage similar conduct by likeminded persons. The protection of the Australian community requires it is said that the visas be cancelled and the Applicant not be allowed to stay in Australia. On the other hand, it is maintained on behalf of the Applicant more particularly by his grandparents that if he is allowed to remain in Australia he would be seen by others as a person who has undergone rehabilitation and able to speak of the errors of his ways. It might however also be seen by persons with whom he comes in contact as indicating that he was able to avoid the consequences of his conduct; that is, deportation, by virtue of family support. As the Tribunal sees it the effect of cancellation of the visas is more likely than otherwise to have a deterrent effect upon persons minded to commit anti-social acts.
It has often been said by the Tribunal that the Australian community expects all residents including non-citizens to respect and abide by Australian laws. The Applicant engaged in criminal conduct, some of it very serious. Having in mind the adverse effect on the victims, the risk of recidivism, the fact that the Applicant was given a number of opportunities by the criminal justice system to rehabilitate himself and that he failed to take advantage of such opportunities, the Tribunal is satisfied that the Australian community would expect that he should not be allowed to remain in Australia.
It is accepted by the Tribunal that the brother Charles may well experience hardship in the event of the decision under review being affirmed. However as maintained on behalf of the Respondent Charles as not called to give evidence before the Tribunal and “there is no direct evidence of Charles being so affected”. However the Tribunal is minded of the observations made by the grandparents, parents and aunt of the Applicant. The nature of the relationship between Charles and the Applicant was not the subject of evidence from Charles and indeed over the last four or five years by reason of the Applicant’s incarceration they have lived separately and apart and the Applicant has played little part in his brother’s life. Whilst the interests of Charles may be affected if his brother’s visas are cancelled the Tribunal agrees with the contention made on behalf of the Respondent that on the basis of the evidence tendered before it, “it is not the case that his best interests would require that Mr Fisher’s visa not be cancelled”.
As earlier noted in these reasons family members and friends may suffer emotional hardship if the Applicant is removed from Australia. But he would live then in Fiji where he does have family members and where he was born.
There is not any evidence from the Applicant or Ms Stephenson as to their current relationship. There is however evidence from relatives as to the relationship being still on foot. The Tribunal accepts that deportation of the Applicant may well cause hardship to Ms Stephenson even be it that she and the Applicant have not resided together since 2001/2002.
On behalf of the Applicant it was maintained that “to deport Ricardo would be to deny that the justice system is working and actually act as a deterrent to other prisoners wishing to change their lives for the better”. The Tribunal does not accept this submission. Affirming the decision under review and the same being communicated to the Fijian community in Australia would in the opinion of the Tribunal act as a deterrent to other members of that community and more particularly the younger members of that community engaging in conduct the like of that committed by the Applicant.
It is not at issue that the Applicant has tried to further educate himself whilst incarcerated and that he has undergone a number of courses whilst in jail. This self-education should be of assistance to him in whatever society he happens to be living.
As earlier discussed, the welfare of Charles is of primary consideration but the Tribunal is not satisfied, more particularly in the absence of evidence from Charles himself that the consequences to him are such as to override the other primary considerations.
This is an application which presents countervailing factors the primary ones to be weighed one against the other in order that an appropriate decision can be reached. The Tribunal is conscious of the nature of the Applicant’s conduct extending over a number of years, his criminal history, his conduct in prison and the risk of his re-offending. It is true as maintained on behalf of the Respondent that the Applicant’s family members were aware of his being before the courts on a number of occasions whilst he was a juvenile, that he was released into their care but that he re-offended. The Tribunal also accepts the submission that the parents must bear some responsibility for their son’s behaviour. Rehabilitation is not a consideration which is given significant weight particularly in light of the Applicant’s past conduct.
Deterrence is a very real consideration and cancellation of a visa should send a strong message to younger members of a community this more particularly in light of the Applicant having been given a number of opportunities by the Courts to not re-offend.
The interests of Charles have been considered, as has the hardship that may be experienced by members of the family and the Applicant himself. It is inevitable that the family members will experience regret, disappointment and anguish at the visas being cancelled. However, they have experienced in the past similar emotions as a consequence of the conduct of the Applicant.
The Tribunal balancing the various primary considerations one against the other and being minded of the other matters that are to be taken into account, is satisfied that the serious nature of the Applicant’s conduct, the possibility of his re-offending and the expectations of the Australian community, outweighed the interest of Charles and the other factors. It is satisfied that the decision under review should be affirmed.
For the reasons set forth above the decision under review is affirmed.
I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis AM QC, Deputy President
Signed:
Associate
Dates of Hearing 31 July 2006
Date of Decision 18 August 2006
Solicitor for the Applicant Mr Andrew Miller (maternal grandfather)
Solicitor for the Respondent Mr Avenish Chand, Clayton Utz
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