Forde and Minister for Immigration and Multicultural and Indigenous Affairs

[2005] AATA 495

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 495

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W2005/107

GENERAL ADMINISTRATIVE  DIVISION		)
Re		PAUL CHRISTOPHER FORDE

Applicant

And MINISTER FOR IMMIGRATION MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal The Hon R J Groom (Deputy President)

Date30 May 2005

PlacePerth

Decision The decision under review is set aside and the matter is remitted to the respondent for further consideration with a direction that the discretion under s501(2) of the Migration Act 1958  be exercised in favour of the applicant.

[Sgd The Hon R J Groom]

Deputy President

CATCHWORDS

VISAEX - IMMIGRATION  - cancellation of visa for failing the character test - past  criminal conduct – discretion that the Tribunal may exercise where the applicant fails the character test – Ministerial Direction No 21 – efforts by applicant to rehabilitate himself – best interests of child – good recent conduct – low risk of further criminal conduct – disruption to family unit– exercise of discretion – decision under review set aside.

Migration Act 1958 – ss501(2),(6)(7)

Ministerial Direction No 21

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) 1979 2ALD 643

Re To Nguyun Doung and Department of Immigration and Multicultural Affairs 2001 [AATA 442)

Yung v Minister for Immigration and Multicultural Affairs (21 October 1998) (unreported)

REASONS FOR DECISION

30 May 2005 The Hon R J Groom (Deputy President)

1.      This is an application to review a decision by a delegate of the respondent to cancel the applicant’s Transitional Permanent visa.

2. The cancellation was made under s501(2) of the Migration Act 1958 (“the Act’) on the ground that the applicant did not pass the character test within the meaning of the Act.

3.      The decision to cancel the visa was made on 28 February 2005.   The decision together with the reasons therefore was forwarded to the applicant at the Acacia prison by registered letter dated 2 March 2005.   He is presently an inmate at that prison.

4.      The hearing was held in Perth on 20 May 2005.   The applicant was not represented.    Ms Laila McPherson appeared for the respondent.   Oral evidence was given by the applicant.   The “G” documents were tendered in evidence.

Background Facts

5.      On the basis of the material before me I find the following facts:

(a)The applicant was born in County Cork, Ireland on 18 December 1955.  He is now 49 years of age.    He remains a citizen of Ireland.

(b)He arrived in Australia on 1 April 1977 and was granted a resident entry permit.   Apart from two brief absences in 1980 and 1995 the applicant has lived in Australia since 1977.

(c)The applicant settled in Western Australia with his parents.   They are both now deceased.   His older brother Stephen lives in Denmark and is now a Danish citizen.   His two younger brothers Tony and Kevin also lived in Western Australia.   Tony is deceased and was the victim of the applicant’s crime as detailed below.  A sister Vivienne has resided at various times in Australia and Ireland.

(d)The applicant was previously married, but divorced in 1999.   He has four children, Shannon, Kieran, Jarrod and Brent.   Brent, the youngest of the children is now 17 years of age.   The applicant’s daughter Shannon has a child, Ashton, who is his first and only grandchild.

(e)The applicant’s Western Australian criminal history is as follows:

Court	Date	Offence	Sentence
Perth Supreme Court	15/06/99	Murder	Life imprisonment
Perth Supreme Court	15/06/99	Criminal damage by fire	3 yrs imp conc
Perth District Court	02/06/99	Burglary and commit offence (habitation)	12 mths imp
Armadale Court of Petty Sessions	10/05/96	Stealing	$250
Perth Court of Petty Sessions	02/03/82	Wilful exposure	$250 GB bond
Perth Court of Petty Sessions	06/08/77	DUI	MDL disq and cancelled for 6 mths $250

(f)The murder conviction and the related conviction for causing criminal damage by fire are by far the most serious offences committed by the applicant.

Justice Templeman, when passing sentence on the applicant  in the Supreme Court of Western Australia on 15 June 1999, gave the following explanation of the circumstances surrounding the murder:

“Anthony Forde, who you in the family knew as Tony, was your youngest brother. You went to his house on the afternoon of 10 December 1997 to resolve some unfinished business which you had with him.    That seems to have been in relation to a car which he owned and he told you he would give to your daughter for Christmas.  It seems that there was an argument between you and your brother which led to a fight.

Your brother had some dangerous knives lying around at his house and at some stage during the course of the fight you had a knife in your hand.   You wounded your brother with the knife with the intention of causing him grievous bodily harm.   That is the essence of the jury’s verdict.   They could only have found you guilty of murder in the circumstances on being satisfied beyond reasonable doubt that you had the intention of causing grievous bodily harm to your brother.

In making that finding and in coming to that conclusion the jury obviously rejected your claim that you had acted in self-defence.   There was some dispute at the trial about the number and severity of the wounds that you inflicted on your brother but you accepted that the most serious wound to your brother’s arm severed an artery and caused his death.   The medical evidence was that your brother would have died within a few minutes of the blow being inflicted, the wound being sustained, if it was not treated.

… After the fight was over you left your brother where he lay in the house and after an interval which you pulled yourself together to a certain extent you then, it seems, went about your daily life as if nothing had happened, or at least trying to pretend to your family and work people that nothing happened, although inside I think you, yourself, were in tremendous turmoil.

You tried to conceal the offences.   You went back to Tony’s house on 12 December, I think it was, for the purpose of removing his body or burying it, but you were unable to carry out that or fulfil that ambition.   You went back again on the evening 13 December and you took some petrol with you.   You decided that because you were unable to bury your brother’s body that you would cremate it.   You used the petrol to start some 11 fires and, of course, you doused your brother’s body and the covering that you put over it with petrol in order to achieve that objective.”

(g)The applicant was sentenced to life imprisonment for the murder with a minimum of 7 years before being eligible for parole.  In sentencing Mr Forde  Justice Templeman made the following comments:

“The impression I have is that your personality is such, for whatever reason, that you have a tendency to violence when you experience difficulties in some personal relationship, some close relationship.   That has manifested itself in your marriage in past times, when you behaved violently towards your wife on occasion.  However, you recognised that problem and you took steps to bring it under control by the appropriate counselling.   I think you are said by your family still to have a bad temper …”

You have no significant criminal record, nothing which I consider relevant at the moment, but what is relevant is the fact that there is no record of anything involving violence.   These factors lead me to the view that you are not a danger to the community as has been suggested by counsel for the crown.   It seems to me that if you are a danger to anyone at all it would be a danger to your immediate family or those to whom you are close, if you are not able to control your temper.

That I think is really the root cause of this first offence.   I am not persuaded that the assault of your brother was premeditated.   I don’t for a moment think that you went to his house intending to cause him grievous bodily harm …

It seems to me that given your acceptance, as I think you have accepted now as you have in the past, that you have a problem with your temper and given that you are in a position now to take advantage of opportunities to redress that problem … that no useful purpose is to be served by imposing a longer sentence on you than the minimum …

… I don’t think retribution is high on the list of priorities in this case because this is essentially a crime committed with the family and the family, as it is apparent from your father’s letters, have to a very great extent forgiven you.   The exception to those members of the family who have forgiven you is, I think, your brothers who, I am told by your father, have not, but the overwhelming impression that I have from you family is one of forgiveness.”

The non-parole period of 7 years is a relatively light sentence for the crime of murder.

(h)The arson charge for which the applicant was sentenced to 3 years imprisonment to be served concurrently, is also referred to in Justice Templeman’s comments at (f) above.

(i)On 2 June 1999 the applicant was convicted of 2 counts of stealing and one of burglary.    These involved stealing a motorbike and breaking and entering a house and then stealing a computer from that house.   These offences are explained in some detail at pages 54 – 62 of the “G” documents.

(j)As far as the earlier offence in 1982 of wilful exposure is concerned the applicant explained in his oral evidence that this was done as a prank.   Another person involved was not convicted of the offence.   He said he would never be involved in serious conduct of that kind.   I accept his explanation of that offence.

(k)Most of the applicant’s family live in Western Australia.   His four children live there as does his grandchild.   They regularly visit him in prison.   All of his children have written letters of support.   The applicant has not been back to Ireland since he left that country some 28 years ago.   He says he has some aunts and uncles living in Ireland, but has obviously had very limited contact with them.   He believes they are still living in County Cork, but is not absolutely sure.

(l)The applicant indicated at the hearing that he had recently applied for leave to appeal against his conviction for murder.   This is a very late appeal as he was convicted on 15 June 1999, now almost 6 years ago.   It is likely that he will become eligible for parole next year.  The applicant conceded in evidence that it will be difficult for him to succeed on the leave application.   He said he has not been able to get legal aid and will represent himself at the hearing.    The Tribunal notes that the application for leave was filed on 16 May only four days before the hearing of this  application.    If leave to appeal is granted, the leave itself will involve legal issues rather than any dispute about the facts.     The applicant admits the facts as detailed by Justice Templeman (see (f) above).

For the purposes of s501(7) of the Act, the applicant was sentenced on the charge of murder to a term of imprisonment “of 12 months or more” and that sentence remains. He was also sentenced to a concurrent term of 3 years on the arson charge. He is not seeking to appeal that particular sentence. In addition he was sentenced to 12 months imprisonment on the burglary and stealing charges on 2 June 1995.

Section 501 and Direction No 21

6. Section 501(6)(a) of the Act provides that a person does not pass the character test if the person has “a substantial criminal record”, and under s501(7), this term is defined to include where a person has been sentenced to a term of imprisonment of 12 months or more.

7.      There is no dispute, and I find accordingly, that the applicant does not pass the character test as he has been sentenced to a term of imprisonment of 12 months  or more.  

8.      Even though the applicant has not passed the character test the original decision-maker and therefore this Tribunal has a discretion to allow the applicant to retain his visa and so remain in Australia.

9. In exercising the discretion the Tribunal must have regard to and be guided by Ministerial General Direction (No. 21) – Direction under s499 visa refusal and cancellation under s501 of the Act (“Direction No 21”).

In speaking about such directions Brennan J said in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) 1979 2 ALD 643:

“When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that power in reviewing that decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case.”

10.     I  also agree with the view expressed by Deputy President Wright in Re To Nguyun Doung and Department of Immigration and Multicultural Affairs 2001 [AATA 442) when he said:  

“… the Tribunal is not confined or fettered by the Minister’s Direction and is free and, indeed has the duty, to make its own assessment of how the discretion should be exercised according to the justice of the case by balancing and evaluating the competing issues which have arisen for resolution.   In this process so-called secondary considerations may well outweigh primary considerations depending upon the facts of the case (see Aksu v Minister for Immigration and Multicultural Affairs per Dowsett J [2001] FCA 514).”

11.     As stated in 2.2 of the Direction:

“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.”

12. So the duty of the Tribunal in a case such as this is to carefully weigh up all of the competing considerations, and paying due regard to Direction No 21, decide how best to exercise the discretion in order to achieve justice.

13.      The three primary considerations in Direction No. 21 are as follows:

(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.

(a)      The Protection of the Australian Community   

14.     The Tribunal must consider the seriousness and nature of the conduct.   

2.6 of Direction 21 provides examples of offences which the Government considers to be “… very serious”.

(f) of 2.6 expressly refers to “murder” and (k) to “arson”.  “Serious theft” is also included in (e) of Direction 21.   They are considered to be “very serious offences”.   It is not suggested in Direction 21 that in every case where a non-citizen has committed murder, arson or theft that person’s visa is automatically cancelled.   The discretion remains and so it is necessary for the Tribunal to carefully consider the circumstances of the offences and all relevant “considerations” in Direction 21  before deciding whether or not to cancel the visa.

15.     The applicant has a relatively short criminal record.   The only convictions prior to May 1996, when he was then 45 years of age, were driving under the influence in 1977 and the wilful exposure conviction in 1982.   The more serious convictions in his criminal record occurred in a brief  three year period between May 1996 and June 1999.

16.     In early 1996 he stole a pair of boots and was convicted and fined $250.   Then in June 1999 the applicant was convicted of stealing a motor bike and convicted also for burglary and stealing a computer.   These offences occurred at a time when the applicant became depressed.   He had completed an apprenticeship as a boilermaker, but could not find work despite concerted efforts.    The applicant has a young family and was under considerable financial pressure at the time.   These offences cannot be condoned, but may be explained by the particular pressures he was then under.

17.     I do not consider the burglary and stealing convictions in 1996 and 1999 as the most serious end of the scale of such offences.   They indicate dishonesty, but there is certainly no consistent pattern of such conduct.   Unusually the first offence of dishonesty occurred when the applicant was over 40 years of age.

18.     The Tribunal is of the view that the offence of murder and the related arson offence stand out as offences which could well justify cancellation of the visa.   They are clearly very serious offences and substantial terms of imprisonment were imposed by the Courts.    Despite the seriousness of these offences there are other factors which the Tribunal must consider before reaching its decision.

19.     It is necessary to take into account any mitigating factors (see paragraph 2.8(a) of Direction 21).    As far as the murder conviction is concerned, as the sentencing judge recognised,  there are mitigating factors.    It arose out of an argument and fight between two brothers.   The sentencing judge found that the assault of the brother was not premeditated and that he did not go to his brother’s house intending to cause him grievous bodily harm.    After the fight started and in the heat of the moment the applicant grabbed the knife, which belonged to his brother.  An artery in the brother’s arm was severed and this caused his death.   The issue of self defence was raised during the trial, but the verdict shows that it was rejected by the jury.     The sentencing judge said that the crime was one committed within the family and said the applicant “…  was not a danger to the community …”.   He was given a minimum period of 7 years to serve before being eligible for parole.  

20.     There are no other offences involving violence, although the evidence before this Tribunal is that on occasions he did abuse and mistreat his former wife.    No charges or offences arose out of that mistreatment.    The applicant did recognise that he had an anger problem and at the time took steps to bring it under control through counselling.

21.     The arson conviction was related directly to the murder.   It can be seen as part of the one episode of crime.    He was in a state of panic and turmoil after his brother’s death and in desperation tried to conceal his offence some three days later by going back to the house and setting fire to it.   He pleaded guilty to the charge of arson.

22.     The Tribunal must also consider the likelihood that the conduct may be repeated (including the risk of recidivism).

23.     The applicant was convicted of his most serious offences in June 1999 and he has remained in prison since them.     The evidence before the Tribunal is that he has been a model prisoner.   For example, Ms Mara Dall, M.Psych. (Clin), the senior psychologist at Acacia prison, in a report dated 8 November 2001 said in part:

“Mr Forde has been accommodated at Acacia Prison since 22.5.01.    There have been no concerns or issues about his behaviour in the time he has been at Acacia. And no reports of any such concerns during the entire period of his incarceration.   He is currently in a position of trust in the prison library, and I understand he was in a similar position prior to coming to Acacia.

Ms Dall went on to say:

“Mr Forde was one of the most responsive participants in the group, showing excellent understanding of and ability to use the problem solving, creative thinking and critical reasoning skills.   He was able to analyse the problem, generate alternatives and assess the consequences of those alternatives in terms of costs and benefits.

Mr Forde showed a highly developed sense of values reasoning and ethical judgement, and was able to listen to and understand other people’s point of view.   His social skills and understanding of interpersonal strategies were also very good.

Mr Forde processed the material on anger management very thoroughly, and showed knowledge of a good range of strategies with which to manage emotions.  In line with the recommendations in his individual Management Plan, we have recommenced a further program, CALM (Controlling Anger and Learning to Manage It), which should further enhance Mr Forde’s skills in this area.

In summary, Mr Forde has committed a serious violent offence, but has shown remorse and willingness to address his offending behaviour.   He has furthermore shown that he has the motivation and capacity to change his behaviour and his response to provocation.  I concur with the sentencing judge that Mr Forde is not a danger to the community at large.” (See G documents pp87-88)

Also Ms Marjorie Finlay, Coordinator of Education, Training and Recreation, Acacia Prison made the following comments about the applicant:

“During his time in the prison system in West Australia, Mr Forde has completed several courses, which are

·Certificate 111 Design Fundamentals (one unit)

·Certificate 11 Information Technology (four units)

·NBB09 Welding and Thermal Cutting

·NF002 GMAW 1 Gas Metal Arc Welding

·Certificate of General Education Reading and Writing level 3

·Certificate of General Education General Cirri culm Options level 4

Mr Forde has completed several courses to address his offending behaviour the statement of attainment in cognitive skills, healing and restoration is proof of his commitment.

At Acacia prison, Mr Forde has been the only appointed librarian, taking charge of all issues and requirements regarding the library in the prison, putting all processes in the library in place, in this very new prison.   The position of librarian is classified as a highly trusted position.”  (See G documents p157)

24.     A prison officer at Acacia prison Mr Agron Azizi on 14 November 2001 wrote of Mr Forde as follows:

“Paul Forde has been at Acacia Prison since 22 May 2001.

During his incarceration here, Paul has been a model prisoner.   He is always polite and respectful to Officers, and appears to have a good rapport with his peers.

Paul has regular contact with his family in the way of weekly visits, regular phone calls and letters.   He clearly adores his children and is constantly concerned about their welfare.

There have been no documented incidents or charges during his incarceration at Acacia Prison which is a clear indication of his behaviour.”  (See G documents p156)

There is nothing before the Tribunal to suggest that the applicant’s behaviour since those references were given has been anything other than exemplary.

25.     The Tribunal has had the advantage of observing the applicant in the witness box.    He certainly appears to be sincere in his determination to be a law abiding citizen in the future, to learn from his past mistakes and to use the knowledge and skills he has gained in the various rehabilitation courses he has undertaken to overcome his past anger problems.   This, of course, has been the first time he has been in prison and appears to have had a remedial affect and made him aware of the importance for himself and his family of leading a useful, decent and law abiding life.  

26.     The evidence is that the applicant is devoted to his children and grandchild and I believe that relationship will have a positive influence on the applicant’s conduct.

27.     After carefully considering all of the evidence before it, the Tribunal concludes that the risk of the applicant engaging in further  criminal activity is low.

28.     The Tribunal must also have regard to the question of general deterrence.    Although the respondent could use any cancellation as a warning to others I am not convinced on the evidence and arguments before me that this issue is a significant factor in the present case.   Clearly when criminal conduct is involved the most effective general deterrent is to be found in the prison sentence and other penalties and the publicity which sentences often receive.

(b)      The Expectation of the Australian Community

29.     It is reasonable to suggest that the Australian Community would, without being appraised of all the facts, expect the respondent to cancel the visa of a non-citizen who committed murder.   However I believe that if fair-minded members of the community were aware of the facts concerning the murder, that the applicant had made a considerable and successful effort to rehabilitate himself and has behaved well in prison, that he came to Australia as a 21 year old in 1977 and has children and a grandchild here in Australia, but no immediate family in Ireland, there would be sympathy for his predicament.  

30.     As was said by Deputy President McMahon in Re Leha and Minister for Immigration and Multicultural Affairs {2000] AATA 1054 @ 34:

“…there would be a general expectation in the community that the Act would be administered fairly and humanely.”

(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.

31. As has been mentioned the applicant has four children. All are living in Western Australia and all have regular contact with the applicant. Each child has written a letter in support of the applicant and I take those into account. It is noted however that under Direction No 21 this consideration only applies to children less than 18 years of age. The best interests of older children is not a primary consideration, but may be considered with “other considerations” under paragraph 2.17 of Direction 21.

32.     The only child to which this primary consideration applies is Brent, who is now aged 17 years.   He is close to his father and visits him each week.  They also correspond on a regular basis (See G documents p144).    Although he is now almost an adult, I am satisfied that it would be in Brent’s best interests if the applicant is allowed to remain in Australia.

Other Considerations

33.     A number of “other considerations” are set out in Direction 21.   They are clearly not meant to be an exhaustive list.   The Tribunal has considered all of those matters in arriving at its decision.

34.     Obviously an important consideration is the impact  deportation would have on the family unit.    All of the applicant’s children and grandchild reside, as has been said, in Western Australia.   They are all close to their father and grandfather.   If the applicant is deported and not able to return it will cause great disruption and distress to the immediate family members.    Ireland is a significant distance away and the cost of travel would prevent regularly contact.   This is an important consideration to be weighed against other matters.

35.     There is evidence that the applicant has aunties and uncles in Ireland.   Presumably they are now quite elderly.   There was no evidence of immediate family support,  accommodation or job prospects in Ireland.   On the other hand there would be no language or cultural difficulties for the applicant if he is required to return to Ireland.

36.      The Tribunal recognises that the applicant was 21 years of age when he came to Australia.   He is now 49 years of age.   He has therefore lived most of his life in this country.   However his long period of residence in this country is not of itself a reason for not cancelling the visa.   I refer to the comments of Her Honour, Justice Mathews in Yung v Minister for Immigration and Multicultural Affairs (21 October 1998) (unreported) where Her Honour made the following observation:

“Where a pattern of criminal behaviour indicates a likelihood that the person will commit further serious crimes, deportation should be seriously considered, notwithstanding that the person arrived in Australia as a minor.   The overriding consideration stressed in the policy statement is the need to protect the Australian community against the criminal behaviour of non-citizens.”

I agree with Her Honour’s observations, but clearly all relevant factors must be considered before concluding that a person should be deported from Australia.

Conclusion

37.     Although the applicant has committed serious crimes of murder and arson, I am satisfied that they arose out of particular circumstances which will not again occur.   The applicant has conducted himself in an exemplary manner within the prison system and has diligently and thoughtfully undertaken rehabilitation and other courses to overcome the underlying causes of his earlier behaviour.  

38.     He has strong support from, and involvement with, his family.   On all the evidence I am satisfied  that the applicant, upon his release from prison, will become a law abiding citizen and is unlikely to be involved in further criminal activity.    If he does commit further offences then, of course, he will again face the threat of deportation.

39. The applicant has committed very serious offences. However after weighing up the special circumstances of this application, and all of the various considerations, I have decided that I should exercise the discretion provided under s501(2) in favour of the applicant.

40. I set aside the decision under review and remit the matter to the respondent for further consideration with a direction that the discretion under s501(2) be exercised in favour of the applicant.

I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom (Deputy President)

Signed:  K L Miller (Administrative Assistant)

Date/s of Hearing  20 May 2005
Date of Decision  30 May 2005
Counsel for the Applicant         Applicant appeared on his own behalf.
Counsel for the Respondent     Ms Laila McPherson
Solicitor for the Respondent     Australian Government Solicitor