Fisher and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 1013
•13 October 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1013
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/976
GENERAL ADMINISTRATIVE DIVISION ) Re Norman William Fisher Applicant
And
Minister for Immigration and Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Professor GD Walker, Deputy President Date13 October 2005
PlaceSydney
Decision The decision under review is affirmed.
..............................................
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION – visaex – on-shore visa cancellation on the grounds of substantial criminal record – substantial criminal record including robbery in company and robbery whilst armed – discretion that the tribunal may exercise where the applicant fails the character test – necessity to weigh the protection and expectations of the Australian community against hardship to the applicant if he were returned to Fiji – examination of his convictions, family in Australia, rehabilitation – consideration of the best interests of the applicant’s child and his girlfriend’s child – decision of the respondent affirmed.
Migration Act 1958 ss 499, 501, 501G, 501(2), 501(6)(a), 501(6)(c)(ii), 501(7)
Re Sam and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608
REASONS FOR DECISION
13 October 2005 Professor GD Walker, Deputy President Summary
1. The applicant, Norman William Fisher, aged 21, is a citizen of Fiji. He first arrived in Australia on 23 August 1987 with his family. On 15 October 2001, he was granted a permanent (transitional) visa. On 6 February 2004, he was sentenced to four years imprisonment for the offence of robbery in company.
2. The respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, cancelled Mr Fisher’s permanent (transitional) visa on the ground that he failed the character test because of his substantial criminal record and past and present criminal conduct. That is the decision to be reviewed by the tribunal.
Background
3. Mr Fisher was born in Fiji on 20 July 1984 and is aged 21. He first came to Australia on 23 August 1987 with his parents and two brothers. He was granted a transitional (permanent) visa on 15 October 2001. Since his arrival, he departed Australia on 6 August 2002 returning on 27 August 2002, departing again on 30 October 2003 and returning 11 November 2003. Mr Fisher has a son aged almost four, Wynton, who lives in New Zealand with the child’s mother.
4. Between 2001 and 2004, Mr Fisher has been convicted of a number of serious offences, including the following:
Court Date
Offence
Sentence
19/4/2001
Bidura Children’s Court
Robbery in company - SI
Probation s 33(1)(E): 18 months supervision Juvenile Justice Service, not enter Kings Cross, not associate with co-offender.
30/7/2002
Bidura Children’s Court
Robbery whilst armed with dangerous weapon - SI
Control order s 33(1)(G) 18 months commencing 1/12/2001 non-parole period with conditions: 8 months release subject to supervision Juvenile Justice Service; reside as directed, attend programs and counselling re drugs and alcohol issues including residential rehabilitation program as directed, seek and remain in employment or enrol and participate in educational programs including pre-employment training, not to associate with persons not approved young person, granted permission to leave Australia on 6/8/2002 for three weeks to travel to Fiji with family for family reunion.
8/11/2002
Bidura Children’s Court
Larceny
Convicted s 25(2) warrant to issue.
12/11/2002
Bidura Children’s Court
Larceny
Probation s 33(1)(E), concluding 31/5/2003, compensation $1,000.
17/9/2003
Redfern Local Court
1/ Drive using hand-held mobile
2/ Drive on road whilst suspended
1/ Fined $200, court costs $61.
2/ Fined $650 court costs $61, disqualification 12 months commencing 17/9/2003.
25/9/2003
Burwood Local Court
1/ Bring/introduce small quantity of drug into detention centre.
2/ Possess prohibited drug.
1/ Fined $400, court costs $61.
2/ Adjourned generally.
6/2/2004
Sydney District Court
1/ Robbery in company - SI
2/ Assault on officer in execution of duty
1/ Imprisonment 4 years commencing 27/8/2003 and concluding 26/8/2007 non-parole period 2 years commencing27/8/2003 concluding 26/8/2005 (matters taken into account on form one.)
2/ Taken into account of form one.
20/8/2004
Penrith District Court
Robbery in company - SI
Indicted for: imprisonment 4 years 6 months commencing 26/2/2005 concluding 25/8/2009 non-parole period with conditions: 2 years 6 months commencing 26/2/2005 concluding 25/8/2007 release subject to supervision, undertake such courses and programs as recommended.
He has also had the following offences recorded against him whilst in prison:
Date of Sentence Offence
16/4/2005 Disobey direction – reprimand and caution
5/11/2004 Damage, destroy property – compensation
21/7/2004 Assaults – 28 days off contact visits
5. On 16 June 2005, an officer of the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”) informed Mr Fisher that he was considering cancelling his visa because of his substantial criminal record and past and present criminal conduct and that should that decision be made, he would be permanently excluded from Australia. He was advised that in making that decision, the delegate or the Minister would be taking into account his criminal record, sentence administration report and the comments of the sentencing judge dated 6 February 2004 (G8 p55). Mr Fisher acknowledged receipt of this notification on 16 June 2005 (G p97).
6. On 22 June 2005, Mr Fisher made written submissions to the department in which he acknowledged that he had broken the law more than once, but that he was very young at the time and did not realise how serious the consequences could be. He also said that his son and the child’s mother were preparing to relocate to Australia so that they could be reunited as a family and that he is now determined to make his family proud of him. He also apologised to the Australian community for his illegal actions which were senseless and said that he never intends to follow such a course again and that he should be given the opportunity to make amends and to contribute to Australian society as a law abiding citizen (G p98). He also filed in support of his plea to remain in Australia a letter from his parents Charles and Emalyne Fisher of 21 June 2005 (G p100) who stated that their son has shown remorse for his past actions and prays to God daily for forgiveness, and that he was influenced by his friends as a “gullible teenager”. They also stated that their son intends to marry his girlfriend who also has a son from a previous relationship.
7. Letters of support were also filed by his brother Charles, his aunt Noeline Miller, his uncle and aunt Reno and Emily Miller, his grandparents Andrew and Louise Miller, his cousin Brendan Hoffman, and friend Nicola Poutu. Those letters all attested to the fact that the applicant was remorseful for his actions, had learned his lesson in prison and wanted to be able to prove to his family and his son that he was a changed person (G pp102-109).
8. On 14 July 2005, a delegate of the respondent decided to cancel Mr Fisher’s transitional (permanent) visa because of his substantial criminal record and past and present criminal conduct and the continuing risk that he would re-offend and having exercised her discretion under s 501(2) of the Migration Act 1958 (“the Act”) to cancel his visa. Mr Fisher was notified of this decision by letter dated 27 July 2005 and on 4 August 2005 he lodged an application for a review of that decision by the tribunal.
9. Mr Fisher is currently imprisoned at Cessnock Correctional Centre.
10. At the hearing, the applicant appeared in person with the assistance of Andrew Miller, his grandfather, and the respondent was represented by Avenish Chand, solicitor, Clayton Utz, solicitors. The evidence before the tribunal comprised the documents produced under s 501(G) of the Migration Act 1958 (“the G Documents”), taken into evidence as Exhibit A1, together with the evidence tendered by the parties prior to the hearing. Oral evidence was given by the applicant, Andrew Miller, Charles Fisher, Emeline Fisher, Nicola Poutu, Noeline Miller, and Meliki Bola.
Relevant Law and Policy
11. Under s 501(2) of the Act, the Minister may cancel a visa granted to a person if the Minister reasonably suspects that the person does not pass the character test (s 501(2)(a)) and the person does not satisfy the Minister that he does in fact pass the character test (s 501(2)(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 are s 501(6)(a) and s 501(6)(c)(i). Section 501(6)(a) provides:
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));
…
”Substantial criminal record” is defined in s 501(7) to include a person who “has been sentenced to a term of imprisonment of 12 months or more”.
12. Section 501(6)(c)(i) states:
(c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct
…
the person is not of good character; …
13. Under s 499(1) of the Act, the Minister may give 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. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.
14. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The Direction provides guidance on the 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.
Issue
15. In the present case, Mr Fisher does not pass the character test because of his “substantial criminal record”, having received on 6 February 2004, a sentence of imprisonment of four years with a non-parole period of two years for robbery in company, and on 20 August 2004, a sentence of four years and six months with a non-parole period of two years and six months for robbery in company. The issue remaining, therefore, is whether the tribunal should exercise the discretion under s 501(2) not to cancel Mr Fisher’s visa.
Evidence
16. The applicant gave oral evidence. He admitted his criminal record and acknowledged that he had committed the assault and robbery for which he was sentenced to four years’ imprisonment while he was on probation following conviction for larceny, and that the bank robbery for which he was sentenced to four years and six months’ imprisonment was committed while he was on bail.
17. In his written statement he attributed his offences mainly to a great deal of abuse of drugs and alcohol, to which he was exposed through a life of “partying”. He had no responsibilities and a great deal of free time in which to get up to mischief and kept getting into trouble because he kept going back to the party life.
18. His father, Mr Charles Fisher, did not think drugs had played a part in his son’s criminal enterprises. He had claimed to have a drug problem as a “smoke screen”, with a view to obtaining more lenient sentences. He did, however, have a gambling problem and committed crimes in order to support it and to indulge other bad habits. The main cause, however, was his association with a bad juvenile element, many of whom, it seems, were cousins of his. Both parents had been working full-time to establish themselves in Australia and had not noticed that he was being influenced by bad company until it was too late, his parents and his aunt Noeline Miller said.
19. His father had known about his first conviction at Bidura Children’s Court in July 2002 and that a supervision order had been made. He attended the court on that occasion. Afterwards he talked repeatedly to the applicant about it, stressing the need to resist peer pressure and pointing out that choosing the wrong friends would lead him into wrong-doing. He should dissociate himself from his juvenile associates. Mr Fisher barred them from visiting the house and reprimanded his son if he found out that he had contacted them. He obtained for his son a job loading boxes at IPEC, but he quit after a few days, saying the loads were too heavy and the work hurt his back. Nevertheless, Mr Fisher kept trying to impress on him the need to earn an honest living, pointing out that if he found lawful work he would not have to keep looking over his shoulder, would know that he was coming home every night and need not fear arrest. He should not be tempted by the easy life, the fancy cars and flashy girlfriends of his associates but had to become an adult and get an honest job.
20. He returned to live with his parents after being released on bail in April 2003, but ignored their advice. He did dissociate himself from a group of miscreant friends, but kept company with another criminal friend of whom his father was unaware. He robbed the bank while he was on bail, taking the attitude that he might as well enjoy himself while he was on the outside.
21. The applicant’s grandfather, Mr Andrew Miller, had also tried to keep the applicant away from the group of cousins who had led him astray and banned them from his house. Mr Miller had not been aware of the convictions at Bidura Children’s Court, not being seriously involved with the applicant at that time. Once he became aware of the gravity of the applicant’s law-breaking, he did what he could to support the parents’ efforts. Even at the time of the hearing, however, at which he was assisting and representing the applicant, Mr Miller was not aware that the applicant had been sentenced to a total of eight and a half years imprisonment, though with non-parole periods of four years. He appeared shocked to learn the extent of the applicant’s convictions. Nevertheless, he thought his grandson could be rehabilitated and asked if he could be put on probation for a year. He would live with his parents and find work and could be microchipped if necessary. I pointed out that the tribunal has no power to order probation (much less microchip anyone) and that the result of the application can only be yes or no.
22. For his part, the applicant said,
I don’t think I’ll ever do crime again. It’s causing me too much trouble, too much separation from my family.
While in jail he had completed courses in anger management, raising awareness, transforming conflict, relapse prevention, harm minimisation, health promotion and occupational health and safety. He had been undertaking Year 12 secondary studies but had been moved to another jail and discontinued his studies, instead working in the carpentry shop and in ground maintenance. He said at the hearing that he had not undertaken any vocational courses, although his written statement showed him as having completed Certificate 2 in Hospitality Operations in 2001 (Exhibit A2). His short-term goal was to work in his uncle’s roller shutter business and stay out of trouble, to complete the Higher School Certificate and ultimately undertake a chef apprenticeship and TAFE course.
23. He has known his girlfriend, Nicola Poutu, for two and a half years. During the time he was on bail in 2003 he was effectively living with her, although he also kept his accommodation at his parents’ house. He claims to set great store by this association and expresses an intention to marry his girlfriend, but it should be noted that he committed the bank robbery in November 2003 (to obtain money to support his gambling addiction) at a time when he had been living with her for several months.
24. Ms Poutu is a seemingly demure young woman of 22 who works at Balmain Leagues Club while undertaking part-time studies in nuclear medicine in the health sciences department of one of the University of Sydney campuses. She hopes to graduate within three years. Ms Poutu has a five year-old son from a previous association. Under a custody agreement, the father has the boy at weekends. She said the applicant gets on well with her son and that they are good friends. The applicant also said that he supported the child financially with purchases of food and toys about once a month, but Ms Poutu said he contributed no financial support.
25. Ms Poutu had discussed with the applicant the possibility of the applicant’s child in New Zealand relocating to Australia. She had met the boy (Wynton, aged three years ten months) and his mother Edwina (surname not given) in the course of a visit to New Zealand with the applicant, and Edwina had brought the boy to Sydney for two weeks in 2004. The plan was for both mother and child to move to Australia and to live somewhere near the applicant’s family. The applicant himself, however, said that Nicola had agreed that Edwina and the child would live with them. Mr Andrew Miller also said Nicola was keen to have Wynton with her.
26. The applicant said that he has never provided any financial support to Edwina or the child but speaks to Edwina by telephone weekly for about six minutes at a time. Mr Andrew Miller said Edwina is now living with another man (Exhibit A3), but the applicant denies that and Ms Poutu says she has no knowledge either way. Of course, both propositions could be true at different times. Edwina gave no evidence, and no statement, letter or other communication from her was produced.
27. The applicant’s solicitude for his son in New Zealand, like his relationship with Nicola, has not improved his conduct. A week after returning from his visit to New Zealand to see his son in January 2003, he committed the assault and robbery at Town Hall station.
28. Some of the applicant’s family members painted a dire picture of the life awaiting the applicant if he is returned to Fiji. His aunt Noeline Miller declared that because of his Australian upbringing and accent he would be “bashed on a daily basis at every chance available”, even though “he still looks Fijian”. His uncle and aunt Reno and Emily Miller said that because of his part-Caucasian origins he would receive last preference in employment and education opportunities. All three stated that he has no family in Fiji who could care for and support him until he is able to fend for himself.
29. The question of whether the applicant has any family in Fiji is a matter of only secondary importance, but it resulted in some stark evidentiary contradictions and in the exposure of some blatant mendacity on the applicant’s part. As has been noted, the three aunts and uncles already quoted said he has no family in Fiji. In his oral evidence the applicant said categorically that he had no relatives in Fiji at all. He visited Suva in August 2002 for three weeks with his family in order to visit his grandfather who was suffering from terminal cancer (the reason given in his probation leave approval, however, was to attend a “family reunion”: G p47). His grandfather passed away in 2004, but the applicant does not know who is now living in his house. Towards the end of his cross-examination the applicant conceded that he could have relatives in Fiji but had not had any contact with them.
30. His grandfather Andrew Miller, however, who regularly visits Fiji for periods of a month to six weeks, stated in his oral evidence that he has two daughters in Fiji who are married and have families. He himself started a business there importing goods from Sydney but the costs were so high that, although the business is still operating, it is a low-key operation. Nevertheless, it earns enough to support one of his daughters. The other daughter has a business of her own. He has close relations with his daughters in Fiji. One has three children aged 11, 17 and 21 and the other has three girls aged 5, 11 and 13. He was quite definite that the applicant had met all of them on his visit to Fiji.
31. Ms Noeline Miller, however, made a special point of saying that her family in Fiji does not know the applicant. Yet those were the relatives who, her father said, had met the applicant on his 2002 visit. The applicant’s father, Mr Charles Fisher, also has a brother and a sister in Fiji. His sister is single but his brother is married with children. Mr Fisher said his brother had never worked a day in his life and he had to support him with remittances of $200 per month. The applicant had met all Mr Fisher’s relatives in the course of his visit also.
32. The family’s horrific portrayal of Fijian life also seemed exaggerated. In their letter of 9 September 2005, the applicant’s maternal grandparents described how gangs of Fijians could be expected to harass and taunt young people like the applicant, hoping that they would be provoked into fighting. Of course, it is possible even in Sydney to be attacked by groups of Fijian youths, as the victim of the assault and robbery by the applicant and his confederates at the Town Hall City Rail station could attest (see sentencing comments of Judge English). But the applicant himself described no such incidents experienced or observed on his own three-week visit to Fiji in 2002. He said he had mixed with some of the local young people and they had shown him around. They had struck him as different and somewhat unworldly, but he did not mention any threats or provocations. His main criticisms of Fiji were that it was too hot and the life there was “not my lifestyle”.
33. The applicant’s parents said that with his lack of skills, qualifications and knowledge of the Fijian language, and having “no family to guide him”, he would find it very difficult to find employment and they feared for his life, health, safety and sanity. They would have to travel to Fiji to assist the applicant and spend time with him to help him to adjust to the life there. They would also have to assist him financially (Exhibit A2). That would lead not only to strains on their budget, but also with their employment, as they would both have to take extended leave. Mr Andrew Miller and Mr Reno Miller also acknowledge that they would have to help the applicant financially. Mrs Noeline Miller agreed.
34. If he were to remain in Australia, however, he could take advantage of an offer of employment with his uncle’s roller shutter business. His father also offered to buy him a utility or panel van to help him establish a courier business (G p26). Mr Reno Miller and his wife Emily Miller stated that, “If Norman is allowed to remain in Australia we can all pool our resources together to help him, as a family, to be close to him at all times and to provide the moral, emotional and financial support he so desperately needs” (Exhibit A2).
35. Mr Meliki Bola, a family friend, expressed his support for the applicant and said that if he were allowed to stay in Australia he would give him five acres of land in Queensland. Mr Bola owns a 95 acre grazing property at Jimboomba where he raises cattle and intends also to raise goats. There the applicant would also be able to raise goats or cattle. Mr Bola had discussed the matter with the applicant’s father the day before the hearing.
36. Mr Bola revealed that when he was about 21, shortly after he had migrated from Fiji, he too became influenced by the wrong circle of friends into involvement in petty crime, leading to more serious criminal activities. In 1987 he was sentenced to 18 months of weekend detention for assault and robbery and in 1990 was given a 12 months sentence of imprisonment for dangerous driving resulting in grievous bodily harm. He was now running a track maintenance and courier business and owned a number of properties. The department had instituted legal proceedings to cancel his permanent resident visa and have him deported, but he had been given the opportunity to remain and had completely changed his ways. The applicant’s family also pointed to Mr Bola as an example of the way someone in the applicant’s position could reform, become a successful businessman and make a positive contribution to society.
37. Mr Bola had to concede, however, that his convictions and sentences were substantially less than the total of eight and a half years imprisonment to which the applicant had been sentenced.
Application of the Law and Findings of Fact
38. As stated above, there is no dispute, and I find accordingly, that Mr Fisher does not pass the character test by reason of s 501(6)(a) of the Act because he has a “substantial criminal record”, defined in subsection (7) as including a person who has been sentenced to a term of imprisonment of 12 months or more. As stated above, the applicant has been convicted of two separate offences of robbery in company – SI, for which he was sentenced to a term of imprisonment greater than 12 months.
39. The issue for the tribunal therefore is whether to exercise its discretion under s 501(2) to decide, nevertheless, not to cancel Mr Fisher’s visa. In so doing, the tribunal must have regard to Direction No 21 as a guide to the exercise of its discretion.
40. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
Paragraph 2.3 sets out the primary considerations:
In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
Paragraph 2.4 explains:
The 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 Australian community
41. Examples of what the Government views as serious offences are set out in paragraph 2.6. These include, in subparagraphs (f) assault or any other form of violence against persons and (n) any other crimes involving violence or threat of violence which cause concern to the welfare and safety of the Australian community.
42. Paragraphs 2.10 and 2.11 refer the decision-maker to the likelihood that the conduct may be repeated (including any risk of recidivism), and to general deterrence – the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons.
Protection of the Australian Community
43. The first factor to be considered under this heading is the seriousness and nature of the conduct involved. In this case, Mr Fisher has committed a number of very serious crimes as both a juvenile and an adult including crimes involving violence and drug-related crimes. Paragraph 2.6 of Direction No 21 states:
2.6 It is the Government’s view that the following are examples of offences which are considered by the Government to be very serious:
(a)the production, importation, distribution, trafficking (including possession for this purpose), commercial dealing, or selling of illicit drugs:
·persons who embark upon drug-related crime for financial gain have shown a callous disregard for the insidious effects of illicit drugs on the health and welfare of Australia’s young people;
·the Government views non-citizens who have sought to profit from the import or supply of drugs, whether or not motivated by their own need for illicit drugs, as extremely serious offenders. It is important both as a deterrent to other criminals and to protect Australian society that it is clearly understood that crimes involving drug trafficking, which puts the lives of young Australians at risk, be viewed as completely unacceptable to the community; and
·offences involving illicit drugs of dependency or addition, such as heroin, are also of particular concern to the Government and the community; …
44. Paragraph 2.7 of Direction No 21 states:
It is the Government’s view that the sentence imposed for a crime is an indication also of the seriousness of the offender’s 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 repugnancy of the crime:
·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.
45. In sentencing the applicant on 6 February 2004, English J of the District Court said of the severity of the crime:
The offence of robbery in company is an offence of s 97(1) of the Crimes Act and attracts a maximum penalty of 20 years imprisonment. The offence of the assault on a police officer in the execution of his duty is an offence under s 60(1) of the Crimes Act and attracts a maximum penalty of 2 years imprisonment at the Local Court or 5 years indictment. The complainant … was intending to catch a train at Town Hall Station. … As he approached the door to the toilets he noticed the four co-offenders approaching the door to the toilet. He entered first and walked straight to the urinal. He noticed the co-offenders walking towards the cubicles. … [he] walked towards the exist. One of the co-offenders said to him, “Where’s your wallet, give me your wallet, where’s your phone.” He replied “I don’t bring anything valuable. I just came from work.” The complainant was surrounded by the four co-offenders. He was punched to the head and rib area and pushed in the chest. He tried to move away, but was pushed to the ground. Whilst on the ground he was kicked and punched to the torso area.
…
At 6.32am Constables Piddington and Bonkin stopped the co-offenders … Whilst speaking with the co-offenders, the young co-offender rang [sic] north on Sussex Street. … Constable Bonkin remained with the three adult co-offenders. They made attempts to walk away. He attempted to stop the co-offender … from moving by physically restraining him. The co-offender Fisher walked up to Constable Bonkin and pushed him in to the chest. The force was such that the Constable lost his balance and had to step backwards. The co-offenders … and Fisher walked towards Constable Bonkin who retreated for his own safety.
…
The offence itself is objectively serious, carrying as it does a maximum penalty of 20 years imprisonment. The circumstances of the offence were aggravated. There was actual violence upon the complainant, resulting in soreness to the head and his rib cage. Both the co-offenders have prior criminal antecedents, … Both co-offenders were on conditional liberty at the time, and of course they were in company.
46. At the hearing no sentencing remarks in relation to the robbery for which the applicant was sentenced to four years and six months imprisonment at Penrith District Court on 20 August 2004 were available. The respondent had endeavoured to obtain them but without success. The applicant explained, however, that he and another had robbed a National Australia Bank branch at Windsor by jumping the counter and taking $30,000 from the money drawer. They intended to launder the money through poker machines. Bank staff had managed, however, to insert dye scorpions into the haul, which had stained the money badly. The perpetrators had been detected some days later through surveillance cameras while attempting to use the money in change machines at a club. At the time of the robbery the applicant was on bail awaiting trial for the assault and robbery committed on 12 November 2003.
47. A major bank robbery in company, an aggravated robbery with actual violence, an earlier armed robbery and his other offences while at liberty and in custody constitute a serious very pattern of disrespect for the law. Several of his offences are of kinds specifically mentioned in the Direction as being very serious, in paragraph 2.6(e), (f) and (n).
48. Next, the tribunal is to consider the risk of recidivism. Paragraph 2.10(b) of Direction No 21 states that a non-citizen with several previous convictions in Australia should be considered as having an increased risk of recidivism in light of past behaviour. In this case, the applicant has continued to re-offend despite participating in rehabilitation programs, as noted by English J of the District Court in her sentencing remarks:
He has criminal antecedents for robbery in company and robbery whilst armed with a dangerous weapon, larceny, driving offences and drug offences. He has been dealt with in a variety of ways. He has been placed under supervision, fined and sentenced to a control order. At the time of this offence he was on probation for a larceny offence from the Bidura Children’s Court. He was in custody following his arrest until he was granted bail on 19 April 2003, but he was returned to custody on 18 November 2003. It is a record which affords him no leniency whatsoever. …
Whilst in juvenile detention he completed a TAFE course in hospitality, but has not gained employment in that industry. No doubt his criminal antecedents will make it an unlikely option in the future. He has in the past abused alcohol. He has used drugs, such as cannabis, cocaine and ecstasy. His drug of choice is shaboo, a form of crystalline methamphetamine. He estimated spending $2,000 a week on his habit. I note he told the Probation Service that he spent $400 a week on drugs. He told the Probation Service he spent $200 per week on alcohol.
In September/October 2002 he attended a ten week drug and alcohol treatment program through the Fairfield Probation Service. He did not find it helpful. … He told the Probation Service he spent $700 a week on gambling.
Clearly therapeutic intervention is required to ensure that this relatively young offender is rehabilitated. He lacks maturity, is easily led, and has significant drug and gambling problems with need addressing. He perhaps also has a problem with telling the truth.
49. The applicant’s family and friends say that as a result of his most recent term of imprisonment he has matured, become more responsible, has found religious strength and is committed to becoming a law-abiding citizen. That is not impossible, but given that he robbed a bank in November 2003, it would need to have been a fairly rapid transformation. On the other hand, he committed a serious offence on probation and robbed the bank while on bail for a serious offence. As Judge English noted, he has been dealt with in a variety of ways. He has been placed under supervision, fined and sentenced to a control order. His father repeatedly tried to dissuade him from his law-breaking activities but without success. When interviewed by the Probation Service in January 2004, he accepted responsibility for his wrongdoing but refused to help the police by identifying his co-offenders. While performing the duties of a sweeper in custody he had to be constantly supervised. Her Honour continued:
I have genuine concerns as to his level of insight into his offending behaviour and prospects for rehabilitation without a high level of intervention to address his drug, alcohol and life skill requirements. He clearly still demonstrates an inability to be truthful and an inability to work unsupervised even in prison. (G pp117‑118).
50. While those comments were written in February 2004, there is still no clear evidence of rehabilitation other than from his supportive family (whose past efforts towards his rehabilitation have proved fruitless) and his girlfriend. His uncle has offered him employment in the roller shutter business, but there is nothing to inspire confidence in his willingness to make the most of the opportunity. The applicant has run out of easy options both in Australia and Fiji and if he is to have any sort of life from now on he will have to start at the bottom. He will have to work, at least initially, at tasks that he might find boring or distasteful, but he has so far shown no disposition to do so. Mr Bola has most generously offered him five acres of land for livestock raising, but success in primary production today requires not only suitable land and significant capital, but also expertise and the ability to work long, hard and usually alone. His father has offered to buy him a utility or a van to enable him to start a courier business, but that is a business in which he would be facing strong competition from hard-working people who know what they are doing. The applicant’s prospects of success in such undertakings should therefore not be overstated.
51. Further, his flagrant attempts to mislead the tribunal also seriously undermine the contention that he is a reformed and law-abiding individual.
52. In my view, there is a significant risk of recidivism in this case.
53. The third consideration relevant to community protection is general deterrence, which aims to deter others from committing the same or similar offences. “Whilst not a conclusive factor in itself, general deterrence in an important factor in determining whether to refuse or cancel a visa” (Direction No 21 paragraph 2.11). Deterrence is a factor shown by contemporary research to play a more important role in crime causation than had previously been thought (see Re Sam andMinister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003 paragraph 31). Published works attacking deterrence as a relevant factor tend to rely on theoretical arguments or assertions and do not mention any empirical evidence (e.g. J McGuire, Deterrence in Sentencing: Handle with Care (2005) 79 ALJ 448). The deterrent effect of a particular decision is impossible to measure in advance, but it is safe to say that exercising the discretion in favour of not cancelling the visa in a case involving such a serious offence would send an entirely undesirable message to non-citizens contemplating, or currently engaging in, criminal activity.
Expectations of the Australian Community
54. The second primary consideration is set out in paragraph 2.12 of Direction No 21 and states that the community expects non-citizens to obey Australian laws while in Australia. Failure to do so may make it appropriate to cancel such a person’s visa. “Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concern or offences are such that the Australian community would expect that the person … should be removed from Australia”.
55. The applicant has accumulated a very serious criminal history with sentences of imprisonment totalling eight and a half years. He has been given many opportunities to change his ways, through probation, bail, supervision, orders and rehabilitation courses. Yet there is still no cogent evidence of rehabilitation and reform. While the community would collectively feel some reluctance at removing a person who has lived in Australia for 18 years, since the age of three, that would I think be offset by real concerns at his pattern of serious law-breaking and the lack of any solid basis for concluding that he is fully reformed and rehabilitated. In the past neither the support and persuasion of a devoted family, nor the responsibilities of fatherhood, nor the influence of his partner, Nicola Poutu, have prevented him from relapsing. In those circumstances removal would appear to be the only reasonable option.
The Best Interests of the Child
56. The third primary consideration is the best interests of the child. The tribunal is guided on this question by the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In Wan at paragraph 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa and, second, “to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweigh the consideration of the best interests of the children understood as a primary consideration”. I also note paragraph 2.16 of Direction No 21, which sets out considerations which the decision-maker must take into consideration when considering the best interests of a child including the duration of the relationship between the non-citizen and the child and the length of any separation and reasons for that separation (paragraph 2.16(b)).
57. The applicant Norman Fisher has a son aged almost four, Wynton, who lives in New Zealand with his mother. The respondent pointed out that there is no birth certificate in evidence showing him as the father, but I am prepared to assume paternity. The applicant last saw the child in October 2003 when he travelled to New Zealand. There is no evidence that the applicant has formed a relationship with Wynton. In his submission to the department, he said with respect to his son:
At present my three year old son is living in New Zealand with his mother; however they are preparing to relocate here so we can be reunited as a family.
There is no evidence at all from Wynton’s mother Edwina, and while the applicant asserted that both would live with Nicola and himself, that was not Nicola’s understanding. While a submission was made by his grandfather Andrew Miller that the applicant had financially supported his son whenever he was able to, there is no evidence as to how much that financial support totalled or on what basis it was given.
58. The tribunal was also asked to consider the best interests of Nicola’s son Jacob, aged five. I note that in his letter to the department of 22 June 2005, the applicant made no mention of that child (G p98). Nicola said that Jacob gets on well with the applicant, but Jacob’s father is actively involved in his upbringing and by agreement with Jacob’s mother has custody of him at weekends. Direction 21 states that generally the child’s best interests will be served if the child remains with its parents. In this case Jacob can remain with both his parents whether the applicant returns to Fiji or not.
59. In her statement of facts and contentions (Exhibit R2) and her oral submission, the respondent submitted that given the limited involvement Mr Fisher has had with both children given his periods of imprisonment and the fact that he could continue to play his limited role in their lives via telephone contact, the protection and expectations of the Australian community would outweigh the best interests of the children. I agree.
Other Considerations
60. Having applied the primary considerations, the tribunal is then required to take into account a number of other considerations to which a decision-maker is directed by Direction No 21, which, though generally given less individual weight than that given to the primary considerations, may have a bearing on the appropriate decision. These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; any evidence of rehabilitation and any recent good conduct; and whether the application is for a temporary visa or permanent visa.
61. The applicant’s parents, siblings and surviving grandparents all reside in Sydney. In their letter to the department of 21 June 2005 (G p100), his parents Charles and Emalyne Fisher stated:
As his parents we are here to offer him all the support and encouragement he needs to get through this negative part of his adolescence and guide him to become an honest stronger and wiser adult.
We can only succeed in this by having him here with us in Australia where our Guidance Love and Care is needed.
We are deeply united as a Family and being together is our Strength.
62. Judge English commented that the applicant came from a supportive family, but “He attempts to lay some of the blame for his criminal activity at the feet of his parents by saying that he was allowed too much freedom” (G pp89-90).
63. In his letter to the department of 21 June 2005, his brother, Charles Reno Fisher, said: “Fiji has nothing to offer him and he has no knowledge of living a life there with no family to support him” (G p102). The fact that the applicant would have no family support in Fiji is also submitted by his aunt and uncle, Reno and Emily Miller, in their letter to the department of 21 June 2005. That appears not to be correct, as while the applicant was subject to a control order made on 30 July 2002 by the Bidura Children’s Court, he was granted permission to leave Australia on 6 August 2002, to attend a family reunion in Fiji (G p47). As was noted earlier, the applicant’s father and grandfather said in oral evidence that the applicant had aunts, uncles and cousins in Fiji on both sides of the family and had met them during his 2002 visit. A letter of support dated 22 June 2005 (G p109) was also filed with the department by Nicola Poutu. Ms Poutu did not however make any mention in that letter of any detrimental effect on her or her son if the applicant’s visa is cancelled, though in her oral evidence she said he gets on well with the applicant.
64. Before the hearing, submissions were filed by his parents, Charles and Emalyne Fisher, Nicola Poutu, Noeline Miller, Reno and Emily Miller, Andrew and Louise Miller (his grandparents) and Meliki Bola. These letters all attested to the fact that they are a close and loving family and would be devastated if the applicant were to return to Fiji where he would have no family support: “We will all suffer greatly, financially and psychologically, should Norman be sent back to Fiji …” Mr Bola stated in his submission, when referring to the health problems of various members of the applicant’s family, that he was “sure Norman’s deportation from Australia would undoubtedly cause serious adverse consequences to all their health problems and could even be fatal because of the emotional stress” (Exhibit A3).
65. There is no doubt that the applicant’s family and Ms Poutu will suffer distress if he is deported. That was evident at the hearing and no-one could be unaffected by it. Ms Poutu indicated that she would consider moving to Fiji, though she would prefer not to do so in the interests of her son and because she wishes to be near her family. She faces a difficult choice, but on the other hand in 2003 she made a choice to enter into, and remain in, a relationship with a man who had a substantial criminal record and who committed a major offence shortly after meeting her.
66. The applicant’s family will be able to remain in contact with him through their regular visits and other contacts with Fiji, where there are relatives on both sides of the family. They have said they will pool their resources to help him to re-establish himself in Australia if this application is successful, and they clearly have the resources to do so. There is no reason why they could not instead help him to become re-established in Fiji, though that is clearly not their preferred option. Nevertheless, as the respondent said, it is a viable option for the applicant. He is young, healthy, outwardly presentable and not drug-addicted. He does not speak Fijian, but English is an official and commercial language there. He has some qualifications in hospitality management, and tourism is a major industry in Fiji. While on balance the other considerations favour exercising the discretion in the applicant’s favour, they do not, whether by themselves or in conjunction with the best interests of the child, outweigh the primary considerations of community protection and expectations.
67. The decision under review should be affirmed.
I certify that the 67 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: .....................................................................................
AssociateDate/s of Hearing 21 September 2005
Date of Decision 13 October 2005
Solicitor for the Applicant Self represented
Solicitor for the Respondent Mr A Chand, Clayton Utz lawyers
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