Gabriel and Minister for Immigration and Border Protection

[2013] AATA 906

[2013] AATA 906

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/5359
Re	Sean Gabriel
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Deputy President J W Constance
Date	18 December 2013
Place	Melbourne

1.          The reviewable decision, being the decision of the Minister for Immigration and    Border Protection made 4 October 2013 to cancel Mr Gabriel’s Class TY       Subclass 444 Special Category (Temporary) visa is set aside.

2. In substitution it is decided that in accordance with the provisions of subsection 501(2) of the Migration Act 1958 (Cth) the discretion to cancel Mr Gabriel's Class TY Subclass 444 Special Category (Temporary) visa is not exercised.

...........................[sgd].............................................

Deputy President J W Constance

CATCHWORDS

CITIZENSHIP AND IMMIGRATION – visa cancellation under s 501 Migration Act 1958 (Cth) – character test – Direction [no. 55] – substantial criminal record – protection of Australian community from criminal or other serious conduct – nature and seriousness of the conduct – risk to the Australian community should the conduct be repeated – likelihood of engaging in further criminal or other serious conduct - strength, duration and nature of ties to Australia – best interests of minors in Australia affected by the decision – whether risk of future harm acceptable - decision under review set aside.

LEGISLATION

Migration Act 1958 (Cth) ss 499, 500, 501

SECONDARY MATERIALS

Direction no. 55 – Visa refusal and cancellation under s501

REASONS FOR DECISION

Deputy President J W Constance

18 December 2013

INTRODUCTION

1. Mr Gabriel entered Australia in 1999, when he was 10 years old.  Since his arrival he has resided continuously in Australia.  From August 2002 until 4 October 2013 he held a Class TY Subclass 444 Special Category (Temporary) visa.

2. In 2009 Mr Gabriel was sentenced to a term of imprisonment of nine years and nine months. On appeal this sentence was reduced to seven years. On 4 October 2013 the Minister for Immigration and Border Protection cancelled Mr Gabriel's visa as he suspected that Mr Gabriel did not pass the character test set out in section 501 of the Migration Act 1958 (Cth) and as Mr Gabriel did not satisfy him that he did pass the test.

3. Mr Gabriel has applied to the Tribunal to review the Minister’s decision.

4. For the reasons which follow, the decision of the Minister will be set aside and the discretion to cancel Mr Gabriel's visa will not be exercised.

   FACTUAL BACKGROUND

5. Unless otherwise stated the following findings of fact are based on the evidence of Mr Gabriel.

6. Mr Gabriel was born in New Zealand in 1988.  He is a citizen of New Zealand.

7. Mr Gabriel’s parents separated when he was about three years old.  His mother re-married and she and her second husband had three children (two sons and a daughter), the youngest of whom is eight years younger than Mr Gabriel. As he was growing up Mr Gabriel felt that his step-father treated him less favourably than he treated his own children.

8. In 1999, when Mr Gabriel was ten years old, he was sent by his parents to live with his maternal grandmother in Queensland.  Several months later the rest of his family migrated to Australia and settled in Melbourne.  Mr Gabriel joined them.  He completed his school education in Melbourne.

9. Mr Gabriel's stepfather is a Muslim and Mr Gabriel regarded his upbringing as strict, involving corporal punishment.  In his words, Mr Gabriel “rebelled against” his stepfather and felt estranged from him.

10. At High School Mr Gabriel was both bullied and a bully.  When he was aged 15, Mr Gabriel “spear-tackled” a student on two different occasions and on each occasion caused him serious injury.  Although the assaults on Mr Gabriel's fellow-student were intentional, I am not satisfied that Mr Gabriel intended to cause the injuries he did.  He was not charged with any offences arising from these incidents, however a court did issue an order restraining Mr Gabriel from approaching the student, who subsequently transferred to another school.  Regardless of whether Mr Gabriel intended to cause the injuries he did, he was made aware of the serious consequences which were caused by his actions.

11. During a period of less than two hours in September 2008, Mr Gabriel, in company with three others, engaged in a course of horrific conduct involving extreme physical violence.  The events were described by the Supreme Court of Victoria Court of Appeal:

    The offences [under consideration by the Court, not all of which involved Mr Gabriel] involved 34 victims, the majority of whom were deliberately targeted by the applicants because they were vulnerable and alone on the street or in parklands in the Melbourne metropolitan area.  Azzopardi and Baltatzis were involved in each incident.  They were sometimes joined by one, or occasionally two other co-offenders.  Gabriel joined with Azzopardi and Baltatzis in the offending constituting five separate incidents, all of which occurred on 27 September 2008.

    …

    … I shall refer in more detail to five of the seven incidents which occurred on the evening of 27 September 2008.  These incidents included the most violent offending, and are incidents in which all three applicants were involved.

    Sometime after 7:30 pm on Saturday 27 September 2008, Azzopardi, Baltatzis and a co-offender Shannon Cooke, after having already committed armed robberies against three other victims that night, called Gabriel and drove to [Mr Gabriel's home] to collect him.  At about 10:05 pm the offenders, having driven along the beachfront in Williamstown looking for targets, spotted [the first victim], who was 19, walking alone.  Azzopardi, Baltatzis and Cooke, armed with a metal pole, a knife and a metal baseball bat respectively, emerged from the car with Gabriel.  Gabriel reached [the victim] first and grabbed him by the neck.  One of the offenders told [the victim] to give them his phone, and as he was attempting to comply with this request, Azzopardi struck him in the upper back of his left thigh with the baseball bat.  After Azzopardi took the phone from [the victim] he struck him again, causing [the victim] to fall to the ground.  Some of the offenders then hit or kicked him while he was lying on the ground.  Azzopardi demanded he give him his wallet, and after [the victim] had handed over his bag and was attempting to get up, Azzopardi struck him to the head with the baseball bat.  The offenders then left him and returned to their vehicle.  [The victim] was taken to hospital and was found to have sustained a bruise to the front of his right thigh and a laceration of five centimetres to the left side of the front of his head, which required sutures… 

    At approximately 10:30 pm Azzopardi and Baltatzis had committed another armed robbery.  Then at 10:45 pm all three applicants as well as Cooke approached [the second victim], aged 48, who was walking alone through a dark area in a parkland in Williamstown.  Baltatzis was armed with a knife and Cooke with a baseball bat.  As the group approached [the second victim], Baltatzis pointed the knife at him and demanded his phone and wallet.  Gabriel then tried to grab the victim and they fell to the ground.  While Gabriel was holding the victim, Cooke struck him six or seven times with the bat.  Azzopardi said ‘pass the baseball bat’ and ‘you’re not doing it right’, and Azzopardi then struck [the second victim] four or five times on the head with the bat.  [The second victim] managed during the attack to pass his wallet to the offenders.  Azzopardi then took a step back from the victim, who was still on the ground, took a full backswing and struck him to the head with the bat, which caused [the second victim’s] skull to audibly crack.  The offenders then ran towards their vehicle.  …  As a result of this attack, [the second victim] suffered a large open wound across his scalp, a fracture to the right side of his skull and a severe brain injury, bruising to the upper left chest wall, and a bruised and swollen right knee.  A CT scan of his brain revealed two blood clots in the brain.  He underwent emergency surgery after which he was placed in a medically induced coma for approximately 24 hours.

    As the applicants were running back to their vehicle after attacking [the second victim], they saw [the third victim] walking towards their car.  Azzopardi yelled out ‘let’s go bash him, get rid of him’. Gabriel punched [the third victim] twice in the face.  Azzopardi then struck him in the head with a baseball bat, and told him to hand over his wallet and phone, which he did.  [The third victim] said that he saw that Baltatzis was holding a knife.  The offenders then left and got into their vehicle.  [The third victim] sustained a 8 to 10 centimetre laceration to the forehead requiring sutures, bruising to the left occipital region at the back of his skull, bruising to the right eye and the right elbow…

    The three applicants then committed two more armed robberies together that night, the first against [victim four].  Gabriel struck him on the legs with a baseball bat causing [the fourth victim] to fall to the ground.  He was then struck with the bat in the head while attempting to run away.  Whilst he was lying on the ground his clothes were searched, and his mobile phone was taken.  In the last armed robbery involving all three [victim five] was threatened by Cooke with a baseball bat.  Gabriel then grabbed [the fifth victim] around the throat and pushed him, demanding to know what was in his bag and warning him that if he said anything he would be bashed.  After searching his bag and his person, the offenders took his wallet and two mobile phones… [1]

    [1] Exhibit A1 pp.38-39.

12. Before me, Mr Gabriel was questioned at length concerning the offences he committed.  His evidence was consistent with the facts referred to by the Supreme Court and I accept that he gave an honest account of what happened.  I appreciate the detailed and careful cross-examination of Mr Gabriel by Counsel for the Minister.  This was of great assistance in my assessing the truthfulness of Mr Gabriel and ultimately in deciding that the risk of his re-offending is acceptable.

13. Mr Gabriel met Baltatzis a few months prior to his offending and was impressed by his apparent ready access to money, his lifestyle and his freedom.  Mr Gabriel's parents had recently separated and Mr Gabriel felt a sense of freedom from the constraints placed on him by his stepfather.

14. When he was asked to join the others on the night of the offences, Mr Gabriel believed that the group intended to spend the night “nightclubbing.”  Once in the car Mr Gabriel observed the weapons and realized that the group was intending to attack victims.  He did not attempt to leave the group at that time.

15. Mr Gabriel witnessed the additional armed robbery committed by Azzopardi and Baltatzis to which the Court referred.  It involved the robbery of a young woman at knifepoint.  Mr Gabriel remained in the car during this incident as he did not want to be “involved in hitting a girl.” [2]

    [2] Transcript of Mr Gabriel's evidence 5 December 2013.

16. When he heard the sound of the fracturing of the second victim’s skull he was concerned that the victim may have been killed.  After the offenders returned to the car Mr Gabriel expressed his concern on several occasions.  His co-offenders laughed.  When the next victim was identified Azzopardi told Mr Gabriel that he should take a “bigger role” in this attack.  This was the victim that Mr Gabriel struck in the legs and the head with the baseball bat.

17. At times during these events Mr Gabriel felt what he described as an “adrenalin rush” and a need to “carry on”.  However as the evening progressed he began to feel that “things had got pretty bad” and after the attack on the fifth victim he requested that he be driven to his home.  As he left the vehicle he said to his co-offenders that he would not be involved in any more crimes.  When asked why he did not stop his involvement in the attacks earlier, Mr Gabriel said that at first he felt a sense of excitement and then he feared he would be assaulted.  It was after the last assault that he finally had the courage to ask to be driven home.

18. After his release from prison on 23 October 2012 Mr Gabriel obtained a job doing carpentry work but found that he could not keep up with the other workers.  He resigned from that position and within three days obtained employment in a tyre supply business.  He continued in this job until he was taken into immigration detention on 15 October 2013.

    THE RELEVANT LEGISLATION

19. Subsection 501(2) of the Migration Act 1958 (Cth) provides:

    (2)The Minister may cancel a visa that has been granted to a person if:

    (a)the Minister reasonably suspects that the person does not pass the character test; and

    (b)the person does not satisfy the Minister that the person passes the character test.

20. Subsection 501(6) paragraph (a) provides:

    (6)For the purposes of this section, a person does not pass the character test if:

    (a)the person has a substantial criminal record (as defined by subsection (7));

21. Subsection 501(7) paragraph (c) provides:

    (7)For the purposes of the character test, a person has a substantial criminal record if:

    …

    (c)the person has been sentenced to a term of imprisonment of 12 months or more;

22. The power of the Tribunal to review the decision to cancel Mr Gabriel's visa is provided by Section 500. Under subsection 499(1) the Minister has given written directions as to the exercise of the power to review the decision. Subsection 499(2A) provides that these directions must be complied with. The relevant direction is Direction [55] which commenced on 1 September 2012.

    THE CHARACTER TEST

23. As Mr Gabriel was sentenced to detention for nine years and nine months he has a “substantial criminal record” in accordance with subsection 501(7) of the Act.  As a result, in accordance with subsection 501(6) he does not pass the character test and I must consider whether the Tribunal should exercise the discretion to cancel his visa.

    DIRECTION [55]

24. Paragraph 7 of the Direction sets out how the discretion is to be exercised.  “Informed by” the principles in paragraph 6.3, I must “take into account” the considerations in Part A where relevant, in order to determine whether Mr Gabriel will forfeit the privilege of continuing to hold a visa.  In so doing I am required to determine whether the risk of future harm by Mr Gabriel is unacceptable.

25. Under the heading General Guidance, Direction [55] provides in part:

    The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

26. In paragraph 6.3 the Minister sets out the principles that provide the framework within which the task of exercising the discretion to cancel a visa should be approached.  The principles include the following:

    (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

27. Paragraph 7 sets out how the discretion is to be exercised.  It relevantly provides:

    (1)Informed by the principles in paragraph 6.3 above, a decision-maker:

    a)must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold a visa; and

    b)is required to determine whether the risk of future harm by a non-citizen is unacceptable.  This requires a balancing exercise, involving a consideration of the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community.

28. The Direction requires the decision-maker to take into account the primary and other considerations relevant to the individual case.[3]  Primary considerations should generally be given greater weight than the other considerations.[4]

    [3] Direction 55, paragraphs 6.2(3) and 8(1).

    [4] Direction 55, paragraph 8(4).

29. Paragraph 9(1) provides:

    In deciding whether to cancel a person’s visa, the following are primary considerations:

    a)Protection of the Australian community from criminal or other serious conduct;

    b)The strength, duration and nature of the person’s ties to Australia;

    c)The best interests of minor children in Australia;

    d)Whether Australia has international non-refoulement obligations to the person.

    REASONING

    A.       PRIMARY CONSIDERATION

    (a)     PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT

30. I note that I must have regard to matters set out in paragraph 9.1 being:

    ·the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens;

    ·the nature and seriousness of the person’s conduct to date;

    ·the risk to the Australian community should the person commit further offences or engage in other serious conduct[5].

    A.1     The nature and seriousness of Mr Gabriel's conduct to date

    [5] ‘Serious conduct’ is defined in Annex B to the Direction to include conduct which may not constitute a criminal offence.

31. Mr Gabriel's conduct to date has been extremely serious and is at the very high end of the scale of the types of conduct which the Tribunal has to consider in matters such as this.  It involved cowardly gang attacks on defenceless victims.  It was conduct which could have involved the death of one, and possibly more, of the victims.  In all cases the physical violence was totally unnecessary to achieve the offenders’ aim to obtain property from those they targeted.

32. I have in evidence statements from some of the victims of the attacks and from members of their families.  These statements highlight the seriousness of the conduct in that they show the far-reaching effect of the offences committed by Mr Gabriel.  In a statement made on 22 November 2013, the victim who suffered the most serious injuries states that he still suffers from the effects of the attack upon him and that he and his family have been seriously affected.[6]

    [6] Exhibit T1.

33. The extreme seriousness of his conduct was conceded by Mr Gabriel.

34. In addition to the criminal offences committed by Mr Gabriel, I take into account that he engaged in bullying conduct as a 15 year old minor which was sufficiently serious to cause physical injuries to another and to warrant the intervention of a court to end that bullying.  However I note that Mr Gabriel was not charged in relation to these instances and that there is no evidence that Mr Gabriel intended to cause the serious harm which he did.

35. Mr Gabriel was involved in a number of incidents while in prison. Two incidents involved Mr Gabriel fighting with other prisoners, one of which resulted in his losing his privileges for two weeks.  Other incidents involved his being found in possession of items which did not belong to him, including items being carried between prisons at the request of others.  Mr Gabriel has also been involved in a traffic offence while he was on parole. These actions show a lack of respect for Australian law and institutions, which I am required to take into consideration.

    A.2 The risk to the Australian community should the person commit further offences or engage in other serious conduct

1. Paragraph 9.1.2(1) provides guidance in considering  the risk to the Australian community and requires the Tribunal to have regard to, cumulatively:

   a)The nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and

   b)The likelihood of the person engaging in further criminal or other serious conduct, taking into account:

   i.     information and evidence on the risk of the person re-offending; and

   ii.    evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

   A.2.1The nature of the harm to individuals or the Australian community should Mr Gabriel commit further offences or engage in other serious conduct

2. The nature of the harm to the Australian community should Mr Gabriel engage in further criminal and/or conduct of the nature of that in which he has engaged in the past, would be extremely serious.  The consequences to individuals would be serious physical and psychological harm and possibly death.  Families and associates would suffer the psychological and economic effects of the conduct.  The nature of these consequences is set out in the statements of victims and family members to which I have referred.

3. A repetition by Mr Gabriel of conduct such as that described would certainly cause concern, and probably fear in sections of the community.

   A.2.2   The likelihood of Mr Gabriel engaging in further criminal or other serious conduct

   The Sentencing Remarks of Gullaci J. in the County Court 18 November 2009 [7]

   [7] Exhibit A1 pp. 97-133.

4. When sentencing Mr Gabriel, Gullaci J. observed that he was an active player in the offences, immature, of borderline intelligence and easily led or intimidated. His Honour said that in his opinion Mr Gabriel had better prospects of rehabilitation than his co‑accused.

5. The Court referred to the evidence of Ms Lechner, Consultant Clinical and Forensic Psychologist, who had assessed Mr Gabriel for the purposes of the Court proceedings.[8]  Ms Lechner was of the opinion that:

   ·Mr Gabriel presented as a cognitively and emotionally immature person;

   ·he was in the borderline range of verbal intelligence;

   ·he was easily intimidated by others, especially those whose acceptance and approval he craves;

   ·he was keen to gain the acceptance of his peers;

   ·his judgement was further clouded by alcohol intake at the time of the offences;

   ·he expressed remorse and shame for his actions. [9]

   [8] Exhibit A1 p.119.

   [9] Exhibit A1 pp.151-156.

6. I have given careful consideration to the report of Ms Lechner, which was made after she assessed Mr Gabriel in March 2009.  At the time he was in custody awaiting sentence.

   Victorian Intervention Screening Assessment Tool 3 December 2009[10]

   [10] Exhibit R1 pp.1-19.

7. Mr Gabriel was taken into custody after committing the offences.  He was not released on bail. The VISAT assessment was undertaken just over 12 months later.

8. In relation to his violent offending Mr Gabriel was given a total score of 10. The Summary of Assessment stated that if the score is one or more the offender must be referred to the Violence Intervention Program.  This was not done despite Mr Gabriel being imprisoned for almost three years after this assessment was made.  His general risk of re‑offending was assessed as moderate.

   Assessments on transfer to Judy Lazarus Transition Centre

9. Mr Gabriel successfully applied for transfer to the Centre and arrived on 30 May 2012.  A prisoner has to be assessed as suitable for transfer as the Centre allows time to be spent in the community, some of which is unsupervised.

10. In a report dated 14 May 2012 the Prison Case Manager at Dhurringile Prison, where Mr Gabriel was incarcerated, stated that “his behaviour while at Dhurringile (3 months) has been good.  I have had no major issues with him.” [11] This comment was made in response to a request for comment on Mr Gabriel's risk of re-offending.

    [11] Exhibit R1 p.55.

11. Mr Gabriel spent just over four months at the Centre.  During that time he engaged in home visits with his family and other activities in the community, some of which were unescorted.  He also completed a pre-apprenticeship course in carpentry at Victoria University.  In several reports issued during the time Mr Gabriel was at the Centre it was stated:

    Sean has received excellent reports in regards to his conduct and compliance with permits during this 2-week period and Observation Checklists (Schedules 2.3 and 2.4) indicate that there are no significant issues or concerns. [12]

    Offending Behaviour Program Screening 12 December 2012[13]

    [12] Exhibit R1 p.89.

    [13] Exhibit R1 pp.92-97.

12. This screening of Mr Gabriel was carried out by the Department of Justice to assist in managing Mr Gabriel while he was on parole.  It is noted in that report that VISAT assessment carried out September 2012 rated his risk of re-offending as moderate.[14]  However it is recorded that “Mr Gabriel was deemed low-risk of violent re-offending and therefore unsuitable for The Violence Intervention Program”[15].  It was noted that it was of concern that he had not completed any offence-specific intervention.

    Offending Behaviour Programs Tier 2A Assessment Report 7 February 2013[16]

    [14] Exhibit R1 p.92.

    [15] Exhibit R1 p.94.

    [16] Exhibit R1 pp.98-106.

13. This assessment was carried out more than three months after Mr Gabriel's release on parole.  It was conducted by Dr Langskaill, Clinician.  Dr Langskaill gave evidence.

14. In the assessment report prepared by Dr Langskaill on 28 March 2013 she stated:

    Mr. Gabriel detailed a history of alienation from peers.  Such alienation appears to underlie his strong desire for acceptance from others, thereby increasing his vulnerability to negative peer influences as he may be easily pressured to engage in antisocial behaviour in order to “fit in” with others.  It is further hypothesised that Mr. Gabriel’s evaluation of his and others’ success via external or superficial measures (i.e. expensive car and house) may perpetuate the financial stress he reports often experiencing.  He may therefore resort to offending behaviour as a means in which to acquire these goals.

    Mr. Gabriel appears to present with protective factors that include his current employment, support from his family and partner, and his desire to avoid negative peers and live the “honest way”.[17]

    [17] Exhibit R1 p.101

15. In giving evidence Dr Langskaill said that Mr Gabriel's employment was a particularly important protective factor.  She was satisfied that his anger was being appropriately managed.  Dr Langskaill did not make an assessment of the risk of Mr Gabriel’s re‑offending as part of this assessment.

16. In her report Dr Langskaill recommended that Mr Gabriel engage in an individual intervention with an OBP clinician to address “problematic beliefs regarding his need for acceptance and his susceptibility to negative peer influences” with such intervention to include the development of assertiveness and conflict resolution skills.

    Evidence of Mr Cummins, Consultant and Forensic Psychologist

17. Mr Cummins assessed Mr Gabriel on 14 November 2013.  He provided a report dated 19 November 2013[18] and gave evidence.

    [18] Exhibit A2.

18. At the time of the assessment Mr Gabriel was being held in immigration detention.

19. Mr Cummins reported:

    In my opinion Mr Gabriel’s current level of maturity is much greater than that which he was experiencing at the time of his offending and is much greater than that which was assessed by Ms Lechner on 27/3/2009.  In my opinion this noticeable improvement in his level of immaturity and level of overall psychological development has led to an increase in his communication skills and hence it is his overall IQ would now be assessed [sic] as falling within at least the below average range and no longer as being within the borderline range.

    In my opinion Mr Gabriel’s prospects for long term rehabilitation remain favourable and most probably very favourable.  In my opinion the risk of him reoffending is low.  In my opinion he would not currently attract any specific clinical diagnosis, although he does report feeling upset and confused regarding being held in immigration detention... 

    …

    … In my opinion he has significant and important supports here in Melbourne in terms of available employment and his ongoing relationships with his mother, stepfather, his mother’s current de facto partner, his girlfriend and his half siblings…

    …

    … In my opinion he appears to have very well developed goals in terms of wanting to commence and complete a carpentry apprenticeship and maintain his ongoing intimate relationship with a view to eventually living with his partner and purchasing a property with her.  I did not assess him as having an Antisocial Personality Disorder or an antisocial personality style.  In my opinion there are no obvious barriers to his ongoing and already advanced rehabilitation.[19]

    When he gave evidence Mr Cummins described Mr Gabriel's attempts to rehabilitate himself as “rigorous and impressive.”

    [19] Exhibit A2 p.11.

    Consideration

20. Having had regard to all of the evidence to which I have referred, I have come to the conclusion that the risk to the Australian community of Mr Gabriel re-offending in the manner of his past offences is in the low to moderate range.

21. In reaching this conclusion I have considered that the VISAT testing on two occasions has placed the risk of Mr Gabriel re-offending in the moderate range.  However I found Mr Cummins to be a witness of considerable knowledge and experience who gave a detailed report and well-considered answers to the questions asked of him.  I accept his evidence that Mr Gabriel has matured since the commission of the offences and that this has been accompanied by an increase in his level of psychological development and his communication skills.

22. I note that I am to have regard to evidence of rehabilitation achieved at the time of making my decision and that I am to give weight to the time spent in the community since the offences were committed (paragraph 9.1.2).

23. It is to Mr Gabriel's benefit that he spent four months at the Judy Lazarus Transition Centre during which time he was able to experience a gradual return to living in the community at a time when he was still subject to detention.  I have taken into account also that he was able to live in the Australian community for just over 12 months without re-offending.  This has been a very important factor in my assessment of the risk to the community.  In that time Mr Gabriel was able to demonstrate that he could live with his family, engage in employment and establish a new relationship with Ms Feite who appears to have been able to provide him with positive support.  Importantly Mr Gabriel has avoided association with a peer group of the like of that with which he associated at the time he committed the offences.

24. I have also given consideration to factors which may increase the risk to the Australian community.  It is of major concern that despite Mr Gabriel's four years of incarceration, he was not provided with specific treatment to address the violent nature of his offending and his apparent problems with anger management.  I am satisfied that there should have been greater effort made by the appropriate authorities to assist him in his rehabilitation at an early stage.  The lack of appropriate assistance with rehabilitation is particularly regrettable in view of the violence of Mr Gabriel's offending, his youth and apparent problems in his psychological development and communication skills.

25. Despite the lack of education which could have been provided I accept the evidence of Mr Cummins that Mr Gabriel has made “rigorous and impressive” attempts to rehabilitate himself and that now he is in the situation of having made significant progress in his rehabilitation.  In the time since his release from prison he has re‑established himself within his family, including rebuilding the relationship with his step-father, which has been under considerable strain.  He formed a relationship with Ms Feite.  He has undertaken training and some employment to further his prospects of obtaining employment in his preferred occupation of carpenter.

    B.       PRIMARY CONSIDERATION

    (b)     THE STRENGTH, DURATION AND NATURE OF THE PERSON’S TIES TO AUSTRALIA

26. Paragraph 9.2(1) of the Direction provides:

    Reflecting the principles at 6.3, decision-makers must have regard to:

    a)How long the person has resided in Australia, including whether the person arrived as a young child, noting that:

    i.Less weight should be given where the person began offending soon after arriving in Australia; and

    ii.More weight should be given to time the person has spent contributing positively to the Australian community.

    b)The strength, duration and nature of any family, social and/or employment links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

27. Mr Gabriel came to Australia when he was 10 years old and has lived here since. He has spent all of his adult life here and regards Australia as home.  He has extended family in Australia and has lived with his immediate family for almost all of his time in Australia, with the exception of time spent in custody, in prison or in immigration detention.

28. I am satisfied that Mr Gabriel's ties to Australia are strong and much stronger than the ties, if any, which he has to New Zealand.  His mother Mrs Gabriel, sister Ms Ismail and partner Ms Feite provided statements and gave evidence which confirmed the strength of his relationship ties.  I accept this evidence.

    Evidence of Mrs Gabriel[20]

    [20] Mrs Gabriel’s statement dated 6 May 2013 is at p.173 of exhibit A1.

29. Mr Gabriel lived with her and his sister prior to his being taken into custody and returned to live with them from his release until he was taken into immigration detention.  Mrs Gabriel visited Mr Gabriel frequently whilst he was detained.  She wishes that he live with her and his sister indefinitely should he return to live in the Australian community.

    Evidence of Ms Ismail[21]

    [21] Ms Ismail’s statement (undated) is at p.174 of exhibit A1.

30. Ms Ismail is 16 years old.  During the time Mr Gabriel lived in the family home after his release from prison they enjoyed a close sibling relationship.

    Evidence of Ms Feite[22]

    [22] Ms Feite’s statement dated 12 May 2013 is at pp.175-176 of exhibit A1.

31. Ms Feite has known Mr Gabriel for just over 14 months.  They have formed a close relationship.  After Mr Gabriel's release from prison she encouraged him to reintegrate into the community.  She believes that their relationship will be long term, even if Mr Gabriel is required to return to New Zealand.

    Statement of Mr Ismail, Mr Gabriel's step-father [23]

    [23] Exhibit A1 p.181

32. Mr Ismail was part of Mr Gabriel's family from 1991 until 2008.  He visited Mr Gabriel while he was in prison.  During that time he noticed a change in Mr Gabriel's persona in that he showed greater respect for his family.  Once he was released from prison he organised his life and settled in quickly.

33. Mr Ismail did not give evidence as he was unavailable to do so on the second day of the hearing.  He did attend the Tribunal on the first day.

    Mr Gabriel's evidence

34. I accept Mr Gabriel’s evidence that he is close to his partner, mother and sister.  I accept also that he has at least partly reconciled with his step-father and that there is a reasonable likelihood that they will continue to have a relationship which will provide additional support to Mr Gabriel.  His two brothers, grandmother, uncles, aunts and cousins live in Australia.

35. I am satisfied that Mr Gabriel’s expressions of remorse and intention not to reoffend are genuine.  I accept also that he now has a greater understanding of his desire to be accepted by his peer group and the risks associated with this.  He has learned mechanisms to cope with peer pressure and to control his anger response.   I am satisfied that he will fulfil the conditions of his parole and that he understands that if he does not he may return to prison.

    Mr Gabriel’s employment

36. Mr Gabriel was able to obtain employment shortly after his release from prison. He worked for six months with a tyre supply business until August 2013 when he resigned to undertake a two month trial to be considered for a carpentry apprenticeship.  A statement from the owner of the tyre business indicates that Mr Gabriel was an excellent employee.[24]

    [24] Exhibit A1 pp.179-180.

37. At the time he was taken into immigration detention Mr Gabriel was about to start his apprenticeship.  There is a reasonable likelihood that he will be able to take up this apprenticeship if he is able to remain living in Australia.[25]

    Consideration

    [25] Exhibit A2 p.7.

38. The members of Mr Gabriel's family and Ms Feite are either Australian citizens, Australian permanent residents or have an indefinite right to remain in Australia.

39. Mr Gabriel’s ties to Australia are very strong and have existed since he was ten years old.  His strong family ties are augmented by his employment.  Although he does not have employment at present, based on his efforts since his release from prison I am satisfied he will quickly find employment and there is a reasonable likelihood that this will be as an apprentice carpenter.

40. Based on the evidence of Mr Gabriel and Ms Feite I am satisfied that Mr Gabriel has some connection with his Church, but I am unable to determine the strength of this.

41. The considerations which are negative for Mr Gabriel are the short time in which he has been making a positive contribution to the Australian community and the fact that he committed the serious crimes which he did within his first ten years living in Australia and very early in his adult life.

    C.       PRIMARY CONSIDERATION

    (c)     BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION

42. Mr Gabriel's sister, Ms Ismail, will be emotionally affected should Mr Gabriel be required to return to New Zealand.  I am satisfied that their relationship has strengthened over the past 12 months and that Mr Gabriel has, for a short time, assisted in her care.  I am satisfied that that cancellation of Mr Gabriel's visa would not be in Ms Ismail’s best interests.

43. Taking into account the matters referred to in paragraph 9.3(4) I have concluded that this consideration should only be given minimal weight.  The relationship is non-parental and has only developed to its present significance recently. Apart from the occasions when Ms Ismail visited her brother in prison, his incarceration of necessity meant that the contact between them was minimal.

44. Ms Ismail is now 16 and impressed me as a confident person who will manage well, even if Mr Gabriel is required to leave Australia.  In less than two years she will be 18 years old.  She would still be able to readily maintain contact with Mr Gabriel should he be living in New Zealand.

45. Ms Ismail is living with her mother who will continue to play the primary parental role.

    D.       PRIMARY CONSIDERATION

    (d)     INTERNATIONAL NON-REFOULEMENT OBLIGATIONS

46. This consideration is not relevant in this application.

    E.       OTHER CONSIDERATIONS AS SET OUT IN THE DIRECTIONS

47. Paragraph 10 of the Direction sets out other considerations which must be taken into account where relevant.  I note that these considerations are generally to be given lesser weight than the relevant primary considerations.

48. The relevant other consideration listed in the Direction are:

    a)Effect of cancellation of the person’s visa on the person’s immediate family in Australia, if those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely;

    …

    c)Impact of a decision not to cancel a visa on members of the Australian community, including victims of the person’s criminal behaviour, and the family members of the victim or victims where that information is available and the person being considered for visa cancellation has been afforded procedural fairness;

    d)The extent of any impediments that the person may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

    i.The person’s age and health;

    ii.Whether there are substantial language or cultural barriers; and

    iii.Any social, medical and/or economic support available to them in that country.[26]

    [26] Direction 55, paragraph 10(1).

1. On the basis of the evidence I have referred to I am satisfied that the cancellation of Mr Gabriel's visa would have an effect on his family members and would be particularly distressing for his mother. 

2. The impact of a decision not to cancel Mr Gabriel's visa on members of the Australian community is a relevant consideration but I do not have evidence available to enable me to make a finding in this regard.

3. The Minister has provided a statement of one of the victims which gives details of the devastating consequences of the attack upon himself and his extended family.  It should serve as a reminder to Mr Gabriel of the long-term effects of his crimes.  However the victim chose not to make a statement as to the impact a decision not to cancel Mr Gabriel's visa would have on him or his family. I note that statements from other victims similarly do not refer to the effect, if any, of a decision not to cancel Mr Gabriel’s visa.

4. I am satisfied that Mr Gabriel would suffer greater impediments in re-establishing himself in New Zealand than he would face if free to remain in Australia. He has not lived in that country as an adult and his recollection of his time living there is negative.  He does not have the prospect of the same degree of family support as he has in Australia, although there is the possibility that Ms Feite may choose to accompany him to New Zealand.  Mr Gabriel would be unlikely to have any social support outside that which could be provided by his family members living in Australia.

5. As a citizen of New Zealand Mr Gabriel would be entitled to such support as is provided by the government.

6. Mr Gabriel is young and enjoys good health.  There are no language or social barriers which he would experience if he was required to return to New Zealand.

7. I do not regard the other considerations as being of significance in considering whether Mr Gabriel’s visa should be cancelled.

F.       THE BALANCING EXERCISE

1. In this application two considerations each have substantial weight – the need to protect the Australian community from criminal activity such as that engaged in by Mr Gabriel in the past and the strength of Mr Gabriel's ties to Australia.

2. The offences committed by Mr Gabriel are very serious, involving senseless extreme violence against totally innocent and defenceless victims selected at random.  As I have already indicated I have decided that there is a low to moderate likelihood that Mr Gabriel will reoffend.  I have reached this conclusion on the basis of the evidence of experienced professionals.

3. Notwithstanding the seriousness of Mr Gabriel’s conduct and the risk of recurrence, I have determined that the risk of future harm by Mr Gabriel is an acceptable one.  This has been a difficult decision and one made after very careful consideration of all the material before the Tribunal.

4. In reaching the decision I have taken into account what the Supreme Court of Victoria Court of Appeal said in relation to the principles applicable to the sentencing of young offenders.  These comments were made in its reasons for judgement on Mr Gabriel's appeal against the severity of his sentence.  Although these principles relate to sentencing they support my conclusion that the risk of Mr Gabriel's re-offending has been reduced by his maturing and the degree of rehabilitation he has been able to achieve to date.  I have considered these factors of relevance in deciding that the acknowledged risk of future harm is an acceptable one.

5. The Court of Appeal referred to two principles which are relevant in considering this application:

   There are a number of considerations which underlie the general primacy of an offender’s youth as a sentencing consideration.  Firstly, young offenders being immature are therefore ‘more prone to ill-considered or rash decisions’.  They ‘may lack the degree of insight, judgment and self-control that is possessed by an adult’.  They may not fully appreciate the nature, seriousness and consequences of their criminal conduct.

   …

   Secondly, courts ‘recognize the potential for young offenders to be redeemed and rehabilitated’.  This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour.[27]

   [References omitted]

   [27] Exhibit A1 p.43.

6. The report of Ms Lechner[28] has provided me with an understanding of Mr Gabriel's stage of development at the time of his offences. I do not propose to reproduce that information in these reasons.  However on the basis of her report and the evidence of changes in his situation since it was written, I am satisfied that Mr Gabriel has matured since he committed the offences.  At the time Ms Lechner identified Mr Gabriel's need for appropriate rehabilitation programs.

   [28] Exhibit A1 pp.151-156.

7. The fact that Mr Gabriel spent 12 months in the community between his release from prison and his being taken into immigration detention has been a very important factor in my decision that the risk is acceptable.  In that time he did not reoffend, he returned to live with his mother and sister, he entered a new relationship and found employment.  In addition to these factors themselves being protective against the risk of re-offending, they indicate the developing maturity and rehabilitation to which I have referred. 

8. I have also taken into account that on his release into the community Mr Gabriel will continue to be subject to the supervision imposed by his conditions of parole until 24 October 2015.[29]  This supervision is an additional factor which will provide support to Mr Gabriel and which I have taken into account in deciding the risk of harm is acceptable.  I have considered also that Mr Gabriel complied with his parole conditions and co-operated fully with his parole officers following his release from prison.

   [29] Exhibit R1 p.154.

9. In a Special Report to the Parole Board on 15 October 2013[30] it was stated, in part:

   [30] Exhibit R1 pp.157-159.

   Since the commencement of his Order Mr Gabriel has accrued no absences to date and is currently reporting on a monthly basis.  Mr Gabriel has been identified as a Stream A serious violent offender and thus subject to intensive case management and Case Management Review Meetings.  (CMRM)

   Mr Gabriel is a young offender assessed using the Victorian Intervention Screening Tool (VISAT) as moderate risk of reoffending.  He presents and engages well in discussions around his past offending behaviour and thoughts and strategies to address his offending. 

   Mr Gabriel has developed a case plan in conjunction with the writer, which includes agreed goals and strategies to address his risk and need, and has also participated in the completion of workbooks attached to ‘The Courage to Change’ interactive journaling system.  Mr Gabriel has reported pro social supports from both his family and his partner and her family.  He has reported to have been in a steady relationship with his current partner for over almost 12 months. 

   Mr Gabriel recently left his employment at [tyre supply company] to take up a carpentry apprenticeship with a local company after completing a pre apprenticeship whilst at [the Judy Lazarus Transition Centre] and at the commencement of his Parole.

   Offender Programs

   Mr Gabriel was referred to offender behaviour programs resulting in him being assessed as suitable for individual intervention commencing 15.10.13.  Unfortunately, due to him being detained in immigration he was unable to commence the program.  It is unknown at this time, if Mr Gabriel is successful in his appeal when he will be able to re engage in the program.

   Drug and Alcohol Assessment and Treatment

   Mr Gabriel was assessed by the ‘Community Offenders Advice and Treatment Service’ on 24.10.12.  The report notes, ‘a referral for treatment was not considered necessary at this time.’

   …

   Conclusion and Recommendation

   This report has been completed to inform the [Parole] Board that Mr Gabriel was taken into immigration detention on 14.10.13 after his VISA was cancelled.  It is the understanding of this service that Mr Gabriel will be appealing this decision with this service to continue to monitor the outcome.

   In relation to Mr Gabriel’s response to his Parole Order thus far, this service reports no issues or concerns.

   This report was prepared by Ms McFarlane, Leading Community Corrections Officer and Ms Whear, Senior Community Corrections Officer.

   CONCLUSION

10. Having decided that the risk of harm by Mr Gabriel is an acceptable one and considering the Principles and Considerations set out in the Direction, I determine that based on the evidence before me, Mr Gabriel should not forfeit the privilege of holding a visa entitling him to remain living in Australia.

11. The reviewable decision, being the decision of the Minister for Immigration and Border Protection made 4 October 2013 to cancel Mr Gabriel’s Class TY Subclass 444 Special Category (Temporary) visa will be set aside.

12. In substitution it will be decided that in accordance with the provisions of subsection 501(2) of the Migration Act 1958 (Cth) the discretion to cancel Mr Gabriel's Class TY Subclass 444 Special Category (Temporary) visa is not exercised.

I certify that the preceding 102 (one hundred and two) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.

...........................[sgd].............................................

Associate

Dated 18 December 2013

Date(s) of hearing	5 and 6 December 2013
Counsel for the Applicant	Mr G Gilbert
Solicitors for the Applicant	Hamiltons Migration Law
Advocate for the Respondent	Mr D Brown
Solicitors for the Respondent	Australian Government Solicitor