FREDERICK HARRIS and MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2009] AATA 597
•13 August 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 597
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/2341
GENERAL ADMINISTRATIVE DIVISION ) Re FREDERICK HARRIS Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Ms N BELL, Senior Member Date13 August 2009
PlaceSydney
Decision The decision under review is affirmed.
.....................SGD........................
Ms N Bell
Senior Member
CATCHWORDS
IMMIGRATION – visa cancellation – whether applicant fails to pass the character test – substantial criminal record - whether Tribunal should exercise discretion to cancel the applicant’s visa – Direction 41 applied – primary considerations – risk of recidivism – risk of re-offending – requirement of proper, genuine and realistic consideration of interests of the child - other considerations – decision under review is affirmed.
RELEVANT ACT/S:
Migration Act 1958: s 499, 500, 501
…
CITATIONS
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234,
Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81
Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198
Heyward v Minister for Immigration and Citizenship [2009] AATA 536
…
OTHER AUTHORITIES
Direction No 21 [superseded 15 June 2009 by Direction No 41]
Direction No 41
…
REASONS FOR DECISION
13 August 2009 Ms N BELL, Senior Member 1. Frederick Harris entered Australia, originally from the United States in 1992 as the holder of a Subclass 660 (Visitor) visa. On 4 October 2000, Mr Harris was granted a Class BB Subclass 155 Return (Residence) visa which was cancelled by the Minister on 13 May 2009, on the basis that he does not pass the “character test”. Mr Harris is currently in prison.
2. Section 501(2) of the Migration Act 1958 (the Act), provides that the Minister may cancel a visa if “the Minister reasonably suspects that the person does not pass the character test”. Section 501(6) of the Act provides that a person does not pass the character test if the person has a “substantial criminal record”. “Substantial criminal record” is defined in section 501(7) of the Act as, among other things, having been sentenced to a term of imprisonment of 12 months or more. There is no dispute that in December 2004 Mr Harris was sentenced to a term of imprisonment of seven years and six months for manslaughter. It therefore follows that he does not pass the character test.
3. The discretion to cancel Mr Harris’ visa is thus enlivened. In exercising the discretion, the decision maker must apply Ministerial Direction No. 41 on Visa Refusal and Cancellation under section 501 of the Act (the Direction). This Direction superseded Direction 21 and came into effect on 15 June 2009. The Direction contains a number of “primary” and “other” considerations to which the decision maker must have regard when considering whether to exercise the discretion to refuse or cancel a visa.
4. The primary considerations in the Direction are:
10.The primary considerations
(1)In deciding whether to refuse to grant a person a visa or cancel a person’s visa, the following (the primary considerations) are to be considered:
(a) the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
(b) whether the person was a minor when they began living in Australia;
(c) the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and
(d) relevant international obligations, including but not limited to:
(i)the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
(ii)the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
5. These considerations are elaborated on by a range of factors to which regard must be had. The additional “Other” considerations are indicated by the headings that appear below.
primary considerations
6. The primary considerations most relevant to Mr Harris’ circumstances, given his convictions for violent crimes and the presence in Australia of his eight year old son, are the protection of the Australian community and Australia’s international obligations as described in the Convention on the Rights of the Child.
protection of the australian community
7. The Direction notes two matters relevant to this consideration: the seriousness and nature of the conduct and the risk that the conduct may be repeated.
8. In relation to the seriousness of Mr Harris’ conduct, I note the Direction at clause 10.1.1(2) (a) states that manslaughter is considered a serious offence. Similarly, clause 10.1.1(2) (c) states that assault is considered a serious offence. Over the course of his time in Australia, Mr Harris has had the following convictions:
● 19/10/1992 – convicted of assault and given a fine and a good behaviour bond;
● 4/2/1996 - fined for traffic offences;
● 27/4/1996 - licence disqualified and fined for further traffic offences;
● 3/8/1996 - fined, disqualified from driving and given a community service order for further traffic offences;
● 1/1/1997 - fined for resisting police and using offensive language;
● 26/7/1997 - fined and disqualified from driving for a further twelve months commencing 2/10/1997 for traffic offences;
● 22/08/2002 - convicted of common assault and placed on probation and ordered to attend an anger management course;
● 30/09/2002 - involved in altercation which led to his conviction for manslaughter;
● 18/02/2004 - charged with maliciously destroying or damaging property, resisting officer and common assault and sentenced to 6 months imprisonment;
● 3/12/2004 - convicted in the District Court of NSW for Manslaughter and was sentenced to 7 years and 6 months imprisonment.
9. In addition, the comments of the sentencing judge, Nield J, (at G pg 72-73) indicate the seriousness of Mr Harris’ conduct leading to conviction for manslaughter:
I am satisfied that, although it was unplanned, spontaneous, or spur of the moment action by the offender, it was obviously a dangerous action, and it was an unlawful action. I am satisfied beyond reasonable doubt that the offender deliberately and intentionally punched the deceased twice to his face. I am satisfied beyond reasonable doubt that the offender was not provoked by anything said or done by the deceased, albeit that he had been confronted by the deceased, who wished to talk to him about what he had said to Mr Firth and him. Specifically, I am satisfied that the deceased did not call or address the offender as “boy”, or threaten him by clenching a fist or by poking a finger against the offender’s chest. I am satisfied beyond reasonable doubt that the offender was not acting in self defence when he punched the deceased twice to his face. Specifically, I am satisfied that the deceased did not act aggressively towards the offender, that he did not step in front of the offender to prevent the offender from walking past him, that he did not make a fist and poke a finger against the offender’s chest before the offender punched the deceased the first punch to his face, and that he did not come towards the offender with a clenched fist after being punched the first time to his face and before being punched the second time to his face. I am satisfied that, although he deliberately and intentionally punched the deceased twice to his face, the offender did not intend to kill the deceased or to cause any serious injury to him. I am satisfied that the offender was annoyed by his being confronted by the deceased, and spoken to about what he had said earlier to Mr Firth and the deceased, and that, being unable to control his temper, and perhaps wishing to teach the deceased a lesson, he punched the deceased twice to his face. Unfortunately, as a consequence of being punched, the deceased suffered, among other injuries, a subdural haematoma, from which he died.
10. Mr Harris said repeatedly that he was wrongly convicted of manslaughter because there was no forensic evidence to support the conviction. I note, in this respect, the judgment of the Full Federal Court in Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234, which held that the Tribunal may not question the correctness of any conviction or the appropriateness of a sentence or the essential facts on which they are based.
11. On the basis of the evidence before me, I conclude that Mr Harris’ criminal conduct is serious.
12. In relation to the question of whether there is a risk of re-offending, I note the comments of Nield J (at G pg 77-78) on sentencing:
I accept that the offender has a short fuse, and cannot control his temper, and acts impulsively without much thought, but I see these things as part of his general make-up.
As to whether the offender is unlikely to re-offend and has good prospects of rehabilitation, the offender’s past does not instil me with much confidence for his future. He had committed two assault offences before the subject offence, he was on bail for the second assault offence when he committed the subject offence, and he has committed one assault and two assault police in execution of duty offences since committing the subject offence. The circumstances in which he committed the assault offence of 21 August 2002, see exhibit L2, and the assault offences of 18 February 2004, see exhibit L3, are not dissimilar to the circumstances in which he committed the subject offence, namely that he attacked a man without justification. He is a man who cannot control his temper, and who acts with violence when he loses his temper. I cannot say that the offender is unlikely to re-offend, because I think that, if he found himself in circumstances similar to those of 21 August 2002, or 30 September 2002, or 18 February 2004, he would act as he did on those occasions. Also, I cannot say that he has good prospects for rehabilitation. I realise that he had his girlfriend’s support and the prospect of re-employment by his former employer, but he has been in the relationship with his girlfriend since 1999, and he has been in regular employment since migrating to Australia, and having that relationship with and the support of his girlfriend and being in employment did not deter him from committing the offences of 21 August 2002, 30 September 2002 and 18 February 2004.
13. Mr Harris has a pattern of a violent behaviour beginning in the year of his arrival in Australia (1992) with a conviction for assault; commission of manslaughter in 2002; and a further assault in 2004. In 1996 and 1997 Mr Harris had convictions for driving while disqualified, driving with a mid or high prescribed concentration of alcohol, driving whilst uninsured, resisting police and using offensive language.
14. Mr Harris repeatedly downplayed the effect of his own behaviour and its contribution to the death of the victim of the manslaughter in 2002. He showed little remorse or empathy. I note that Mr Harris was unable to bring himself to write a letter of apology to the victim because, he said, he still considered he had not caused the victim’s death. In this respect, I note the evidence of Mr Harris’ brother that the best illustration of Mr Harris’ understanding of the gravity of his behaviour was a statement to the effect that if he was now in the same situation, he would just walk or run away.
15. I am mindful of Mr Harris’s statement dated 16 March 2009 in which he says:
When someone who does not know me assaults me, or a family member and I react to the situation in defence accordingly, how do they turn into the innocent victim? Ignoring and violating my god-given right to protect myself and my family members (as it is stated in section 418 of the Crimes Act 2002) is not only unfair, it is also unjustified as well as illegal!
16. When this statement was put to Mr Harris in the hearing he retreated from it and said he now has a different attitude.
17. I also note the evidence of Mr Harris’ father that the victim had been described to him by Mr Harris has a drunken brawler. Even Mr Harris’ fiancee, Ms Hopkins, said that Mr Harris does not take the responsibility for the death of the victim but does take responsibility for his own actions.
18. All of the witnesses called by Mr Harris, all family members or close personal associates, gave evidence that he is now a more reflective person who would not react to similar situations in a similar manner.
19. However, I am mindful of the progress notes of Ms Sue Frost, Psychologist, who had a number of sessions with Mr Harris in goal. In particular, I note Ms Frost’s comments on 16 December 2008 as follows:
● Legal system in Australia criticized. Anomalies in case at court-ie, time for the victim to succumb to effects of brain haemorrhage and lack of evidence presented in court.
● Intolerant and judgemental of other inmates, stating their weaknesses in a deriding manner.
● Arrogant stance-has narcissistic traits (observed) and lacks insight for other’s perspectives-for MCMI-111 next session and PICTS.
● Has finished his sessions with Kim Hyland – considered to have exhausted treatment options due to lack of client amenability and progress=poor insight, limited social perspective taking (victim), and responsibility in the escalation of the conflict in the situation of the offence.
20. The psychologist further noted as a recently as 26 March 2009:
● Has a dispositional style which may engender reactions in others – he demonstrates an assertive and intense manner which may present as confronting.
● Mr Harris is sensitive to criticism and can interpret comments as threats to self which provokes a reaction (he states that the victim called him a “fucking boy”). His offence contained those situational factors which he interpreted as hostile and racist (possibly triggering past experiences). His offence account identified the provocation of the victim (in company), his perception of status threat/hostility and his “hot headed’ behavioural response which more that matched the initial provocation. The offence situation reflected his adherence to the masculine beliefs…”that when you stand up to a bully, they will never ‘bully’ you again”…” I knew that I had to defend myself”.
21. In this vein, I note the Personal Relapse Prevention Plan prepared by Mr Harris in which he stated as a strategy for dealing with high-risk situations that he will simply not associate with anyone who does not get along with him. On other occasions, Mr Harris has said that he would simply run away. In the absence of any anger management or similar course or training, this appears to be an inadequate strategy for future high-risk situations that will inevitably arise. It is also a strategy that has been developed in the confines of prison and remains untested in the wider community.
22. It appears that nothing has really changed over the period of Mr Harris’ incarceration. He still has a girlfriend or fiancee, albeit a different one; he still has prospects of employment (see letter of DecoRug; Exhibit A13); he still has contact with, or has resumed contact with, his son. According to his prison records he has done no anger management or violence rehabilitation courses. There is merely his assertion that he would change his response by running from a conflict situation. This is against a background of still not accepting responsibility for the victim's death and not displaying empathy for the victim or his family.
23. I note the optimism of Mr Harris’ family and fiancee. It is not unexpected when the alternative is deportation, but I accept the sincerity of views they expressed. However, other evidence does not support their view that Mr Harris is a changed man.
24. Mr Harris submitted that if he can manage to not re-offend in prison where, he says, there is a great deal of provocation, he will be able to avoid re-offending when released. However, prison is a highly structured and regulated environment with fewer choices in relation to one's own behaviour than are available in the outside world. I am not persuaded by this argument.
25. Mr Harris also said that his manslaughter offence was a long time ago ─ seven years. But seven years is not so long in the life of an adult in his middle years, particularly in the absence of behaviour modifying courses addressing uncontrolled anger.
26. I am mindful of the comment of President Davies J in Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81 that even if the risk of recidivism is not high, it will strongly support deportation (or visa cancellation) when recidivism, if it does occur, may cause great harm. The Full Court of the Federal Court in Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198 held that a real risk of recidivism is one that is not far fetched or fanciful, and can include a low or minimal risk. I consider that the risk involved for Mr Harris is real, in that it is not far fetched or fanciful, and it is clear that, given the violent nature of the offences, any repetition could cause harm.
27. Mr Harris’ conduct is serious and there is a real risk of recidivism. This consideration weighs heavily against him.
whether a minor when began living in australia
28. Mr Harris was 30 years old when he came to Australia in 1992. He was therefore not a minor when he first came to Australia. This primary consideration does not assist him.
length of time resident in australia prior to criminal activity
29. I note that Mr Harris first came to Australia in 1992, has been resident in Australia for the past 16 years and had his first conviction for assault in 1993.
30. As Deputy President Walker said in Heyward v Minister for Immigration and Citizenship [2009] AATA 536, “It is not the total period of ordinary residence that is relevant under Direction No 41, however, but the length of time before engaging in criminal activity or activity that bears negatively on the applicant’s character.”.
31. Mr Harris lived in Australia for only a very short time before he commenced criminal conduct. This primary consideration weighs heavily against him.
international obligations – the best interests of the child
32. Mr Harris has an eight-year-old son who is an Australian citizen, born to a New Zealand mother. He has lived here all his life. Mr Harris did not meet his son until he was two years old, at which time he had six to eight meetings with him and then no further contact until Mr Harris commenced telephone contact with him in April of this year.
33. In these reasons for decision, I will not identify Mr Harris' son. I will instead refer to him as "the child". To assist the protection of the child’s identity, I will describe his mother as “the child’s mother” rather than by referring to her by name.
34. The Direction states that under Australian law it is generally presumed that a child's best interests will be served if the child remains with his parents. In this respect, the Direction also provides that abuse or neglect of the child, or conduct causing physical or emotional trauma, may indicate against this being in the child's best interests. There is no evidence of such abuse, neglect or trauma in relation to the child.
35. The Direction sets out a number of factors to be considered in ascertaining the best interests of a child. They include, relevant to the cirumstances of this application, the nature and duration of, and interruptions to, the relationship between the person and the child; the likely effect of any separation on the child; the likelihood of the person playing a full parental role in relation to the child; the child's age, citizenship and relationships with others in a parental role; the impact of the person’s prior conduct on the child and any known wishes expressed by the child.
36. There has been extremely limited contact between Mr Harris and his son. The limited contact between them when the child was two, followed by no contact at all for five years and then daily and later weekly telephone contact, is by any calculation an inadequate period in which to establish parental rights or meaningful contact. I note that in her letter to the Tribunal the child's mother said that she hopes Mr Harris and the child will have an opportunity to get to know each other better and build a father ─ son relationship and bond. This suggests that the child's mother does not consider that such a relationship or bond yet exists.
37. According to the child's mother, the child saw Mr Harris "on a few occasions" in 2003 and then she and the child moved to Queensland. She said that Mr Harris did not tell her that he had been charged with manslaughter. She also said she did not tell Mr Harris that she was moving to Queensland.
38. The child's mother said that the last time she saw Mr Harris was at Christmas five years ago. I note that on 18 February 2004, Mr Harris was charged with maliciously destroying or damaging property, resisting an officer and common assault and was sentenced to six months imprisonment. It appears that there was no contact between Mr Harris and the child between Christmas 2003 and February 2004, notwithstanding that Mr Harris was not yet in custody during that time.
39. Mr Harris said that that following his incarceration he made no serious attempt to contact the child until some five years later in April 2009. He said he had lost his mobile phone when taken into custody and was unable to retrieve it. He also said he was concentrating, during that period, on securing his release.
40. Mr Harris’ brother, Jeffrey Harris, who migrated to Australia in 2003, gave evidence that Mr Harris told him about first making contact with the child soon after the contact took place. Similar evidence was given by Mr Harris’ mother and father. However, none of those witnesses said they had attempted to assist Mr Harris in locating the child during the period of his incarceration nor did they give evidence of having been asked to do so.
41. The child's mother said she tried to call Mr Harris on his mobile phone at one point and had no success. She said the only other attempt she made to contact Mr Harris during the five-year period was prompted by a Centrelink requirement that she attempt to obtain financial assistance from him.
42. Although the child's mother said she is "absolutely happy" for Mr Harris to have a relationship with his son, she also said she was not aware that Mr Harris is engaged to be married, even though she now speaks to him regularly. She said the child would be unhappy if Mr Harris went back to the United States because he is looking forward to seeing him. She said if Mr Harris did move back to the United States the contact between him and the child could continue by telephone and the child could visit Mr Harris there if both his and her fares were paid for.
43. In answer to the suggestion that he only made contact with the child because it would assist him with his visa cancellation, of which he had notice in December 2007, Mr Harris denied this and said he no longer had a contact number for the child’s mother and didn't know what to do. He also said he was prompted by the Minister's request for the child's birth certificate to prove his existence. He said he also made inquiries of the US Consulate in October 2008.
44. Mr Harris said he wishes to be involved in the child's life but, on past conduct and level of interest, even taking into account the limitations arising from his incarceration, it appears unlikely that he would play a full parental role in the child's life.
45. The only evidence of the child's wishes is that of his mother who said that the child is looking forward to seeing Mr Harris.
46. I note that the Direction states the general presumption that a child's best interests will be served if the child remains with his parents. The evidence here is that the child has never been with Mr Harris in the sense of Mr Harris playing a parental role. Any relationship between Mr Harris and the child remains a potential one, begun more than 5 years ago when the child was an infant, and then suspended after only a few weeks and some six to eight visits. The Direction addresses the presumption in favour of continuing an existing relationship between a child and parent, rather than the establishment of one. It is not clear to me that a parental relationship, of the kind envisaged by the Direction, now exists between the child and Mr Harris. I am concerned that Mr Harris’ apparent and recent interest in contact with the child is prompted more by his interest in remaining in Australia, and availing himself of this primary consideration in the Direction, than it is by any genuine interest he may have in a meaningful relationship with his son. I am concerned that he would lose interest.
47. I am also mindful that there is no evidence of discussion between the child’s mother and Mr Harris about how any relationship between the child and Mr Harris would be arranged or supported. I also note that she was unaware of Mr Harris’ involvement with and engagement to Ms Hopkins, although when asked about it, she said she did not mind. Ms Hopkins also said, when asked, that she had no concern about Mr Harris having contact with his son.
48. Mr Harris relied on the evidence of his mother and father and his brother that he has been and continues to be thrilled to have made contact with the child. However, this is contradicted by his lack of attempt to make contact over the five years following his incarceration. I note that this year Mr Harris’ mother, who lives in the United States, has spoken to the child on the telephone on three occasions.
49. Although it is in the best interests of the child to have a relationship with both of his parents, the likelihood of him having a continuing relationship with Mr Harris, were he to remain in Australia, is not high. His past conduct in relation to the child does not suggest an abiding interest in him. There has been some contact between them, but it has been extremely limited. The existence of the child and his interests in having a relationship with his father weighs in favour of Mr Harris remaining in Australia, but not to the same degree as it would were there regular, longstanding and meaningful contact between them.
other considerations
family ties
50. Mr Harris has a brother living in Queensland, both his parents, his daughter and her son, and his three half siblings live in the United States. Mr Harris’ contact with his brother in Queensland was by telephone and could be maintained on that basis no matter where Mr Harris resided. He has not indicated that he would move to Queensland were he to remian in Australia. Mr Jeffrey Harris gave evidence that if his brother returned to the United States, their parents would give Mr Harris assistance to settle.
51. Mr Harris has a relationship with Ms Catherine Hopkins, whom he variously described throughout the proceedings as his girlfriend, his fiancee and his de facto. Ms Hopkins said she expects that they will marry in approximately 12 months. Mr Harris said he expects that they will marry by approximately 2012.
52. Ms Hopkins gave evidence that she would accompany Mr Harris if he was to return to the United States and that she expects she would be able to obtain employment there.
age
53. Mr Harris is 47 years old and there is no evidence to suggest that he is in need of any particular services that would not be available to him in the United States where he lived until he was 30 years old.
health
54. There is no evidence that Mr Harris has any medical conditions that give rise to favourable consideration.
links to the united states
55. Mr Harris lived in the United States until he was 30 years old. His parents and three half siblings live there. His 23 year old daughter, Crystal, and her son, Mr Harris’ grandson, live there. His links to the United States are therefore substantial.
hardship
56. This consideration raises similar factors to the consideration concerning family ties and I refer to paragraphs 50 to 52 above. All but two of Mr Harris’ immediate family members reside in the United States. Mr Harris’ brother Jeffrey has generally only had telephone contact with him and that could continue to the United States. Mr Harris’ son also has had mainly telephone contact with him and that, too, could continue. Both people could visit Mr Harris in the United States and the child’s mother gave evidence of a willingness to do so.
57. In addition, while Mr Harris and his parents said that the economic situation in the United States has made employment difficult to obtain, there is no objective evidence that in the fields relevant to Mr Harris, employment there is significantly worse than it is in Australia. Mr Harris’ reliance on the letter of 27 April 2009 (Exhibit A13) to him from his former employer, DecoRug, exaggerates that employer’s preparedness to re-employ him on his release from goal. Employment by DecoRug is clearly expressed to be dependent on economic factors.
58. I also note that there is no evidence of any person in Australia in a position of financial dependence on Mr Harris. Nor is there any significant language or cultural difference between Australia and the United States that would create hardship if Mr Harris were to return, nor if Ms Hopkins were to accompany him there.
level of education
59. Mr Harris was an articulate advocate on his own behalf.
60. There is no question that Mr Harris, during his incarceration, obtained over 30 certificate qualifications.
formal advice
61. Mr Harris received no previous formal advice of the possibility of visa cancellation.
the balance of considerations
62. Of the primary considerations, the interests of the child weigh in Mr Harris’ favour. However, they do so to a degree far less than would be the case where contact with the child has been regular, longstanding and meaningful. On the other side of the balance, the protection of the Australian community from serious violent criminal conduct and the very short period of residence in Australia before he commenced criminal conduct weigh heavily against him. The remaining primary consideration does not assist him. The balance of primary considerations is against his remaining in Australia.
63. Of the other considerations, Mr Harris is only marginally assisted by the difficulty he may have in obtaining employment in the United States. All other non-primary considerations do not assist him.
64. On the balance of considerations, Mr Harris’ visa should be cancelled.
decision
65. The decision under review is affirmed.
I certify that the 65 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member.
Signed: .............................SGD...................................................
Associate: Felicia DanieleDate/s of Hearing 29 July 2009
Date of Decision 13 August 2009
Solicitor for the Applicant Self-Represented
Solicitor for the Respondent Ms Linacre, Clayton Utz.
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