Garkov and Minister for Immigration and Multicultural Affairs
[2006] AATA 1014
•28 November 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 1014
| ADMINISTRATIVE APPEALS TRIBUNAL GENERAL ADMINISTRATION DIVISION | ) N2006/1341 ) ) | ||
| Re: | MARTIN IVANOV GARKOV | ||
| Applicant | |||
| And: | MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS | ||
| Respondent | |||
| DECISION | |||
| Tribunal | The Hon R N J Purvis AM QC, Deputy President | ||
| Date | 28 November 2006 | ||
| Place | Sydney | ||
| Decision | The decision under review is affirmed. | ||
___________________________
The Hon R N J Purvis AM QC
Deputy President
CATCHWORDS
IMMIGRATION – visa cancellation – spouse (migrant) visa – character test – substantial criminal record – party to importation of trafficable quantity of cocaine – whether Ministerial discretion should be exercised in the Applicant’s favour – protection of the Australian community – expectations of the Australian community – no indication of significant hardship if visa cancelled- decision under review affirmed.
Migration Act 1958; sections 501(2), 501(7)(c)
Ministerial Direction 21
REASONS FOR DECISION
| 28 November 2006 | The Hon R N J Purvis AM QC, Deputy President |
| the application |
On 4 September 2006 a delegate of the Minister for Immigration and Multicultural Affairs (“the Respondent”) cancelled the BC-100 Spouse (Migrant) Visa at that time held by Mr Martin Garkov (“the Applicant”). The visa was cancelled on the basis that the Applicant was not a person of good character within the meaning of section 501(2) of the Migration Act 1958 (“the Act”). The discretion otherwise available to the Minister was not exercised in the Applicant’s favour.
In the reasons given by the Respondent in support of the cancellation decision it was stated amongst other matters:
“…
Character Test
[1]As a consequence of the sentence received by Mr Garkov, he is deemed to have a substantial criminal record and not to pass the character test by virtue of s.501(6)(a) with reference to s.501(7)(c) of the Act.
…
Seriousness and Nature of Conduct
[3]Mr Garkov has been charged with the offence of import into Australia trafficable quantity of cocaine. I believe that Mr Garkov’s offence is very serious and that the Australian community is entitled to be protected from the possibility of such conduct recurring.
[4]I am satisfied that cancellation of Mr Garkov’s visa and his subsequent removal from Australia will be in the best interests of the Australian community.
…
Risk of recidivism
[5]I consider that Mr Garkov had no prior convictions in Australia. However, I considered that the offence committed by him is a very serious offence.
[6]I also considered the effect Mr Garkov’s criminal behaviour would have had on the health and welfare of the Australian community, particularly to young Australians.
[7]I accept that Mr Garkov may be genuinely remorseful for his actions… Mr Garkov did not provide any information as to the extent of his rehabilitation and states to have no family or financial support in Australia.
[8]I assessed that there is a possible risk that Mr Garkov might re-offend…
Deterrent to others
[9]I found that it is possible that cancellation in this instance may provide some deterrent effect.
…
Expectations of Australian Community
…
[11]I accept that the Australian community may have some compassion for Mr Garkov’s situation. Mr Garkov has resided in Australia since 10 September 2000 and obtained permanent residence in November 2001…he may have some emotional ties to the Australian community.
[12]However, in view of the serious nature of Mr Garkov’s offence, I was more inclined to believe that the Australian community would expect Mr Garkov’s visa to be cancelled, and that he be removed from that community.
…
Other considerations
…
[15]I consider that Mr Garkov has resided in Australia for six years and may have some emotional ties to the Australian community.
…
[18]In reaching my decision I concluded that the nature and seriousness of Mr Garkov’s crime, the disruption this crime would have caused others, the expectations of the Australian community and, in particular, the possibility that he might re-offend were the over-riding considerations.”
the issues
The issues for determination in this application are whether:
·The Applicant fails to pass the character test by reason of his having a substantial criminal record within the meaning of section 501(7)(c) of the Act, having been sentenced to a term of imprisonment of 12 months or more; and
·The discretion available to the Tribunal to cancel the Applicant’s visa should or should not be exercised in his favour.
the hearing
At the hearing of the application the Applicant appeared on his own behalf. The Respondent was represented by Ms Rose, solicitor of Phillips Fox Lawyers.
The Applicant had prior to the hearing been receiving assistance from Mr Y Kyselov, Migration Agent. On 13 November 2006 Mr Kyselov informed the Applicant that he could “no longer continue my representation in your case because no agreement has been signed until present”.
A Direction had been made by the Tribunal at a Telephone Directions Hearing on 25 October 2006 that “The Applicant is to file and serve statements and any other material upon which he proposes to rely on or before 4 pm on 8 November 2006.” Those statements or other material were not filed or served by or on behalf of the Applicant.
The Applicant gave oral evidence (with no objection from the Respondent) upon which he was cross-examined. Certificates obtained by the Applicant as a result of courses that he had pursued whilst serving his sentence were tendered on behalf of the Respondent.
relevant factual situation and findings of fact
The Applicant was born in Bulgaria on 14 June 1976. He completed his secondary education and attended University for three years. He obtained casual employment in order to support himself whilst studying and in order not to be a burden upon his parents.
The Applicant did not complete the University course and when in his early twenties left Bulgaria. He was employed by various shipping companies during the course of which he met the lady who became his wife. For a period of time the Applicant and his wife resided together, with his parents in Bulgaria. The Applicant’s wife was of Greek parentage and born in Australia, and it was as her husband that the Applicant, on 10 September 2000, became the holder of a UF-309 Spouse (Provisional) Visa enabling him to enter Australia. On 28 November 2001 the Applicant was granted a BC-100 Spouse (Migrant) Visa.
The Applicant was gainfully employed from the time of his arrival in Australia until his arrest. He was divorced in 2004.
The Applicant’s mother and father reside in Bulgaria. His father is a teacher. A brother is at University studying Engineering. The family, according to the Applicant, is a “strong” one. He would have no difficulty re-integrating with it and would expect to receive, if necessary, its support.
In June 2002 the Applicant was involved in the importation into Australia of a quantity of cocaine. He was arrested on 25 June 2002 and in due course pleaded guilty to the charge, was convicted and sentenced to a term of imprisonment. It is this offence that is relevant to the character determination and other considerations.
The Applicant has now served the term of his imprisonment and is presently being held in immigration detention. When told of the visa cancellation he says he was disappointed as he “was ready to get out and go on with my life”. He did complete Information Technology and Architectural Technology subjects whilst in gaol, the knowledge so obtained, being useful to him whether he is living in Bulgaria or some other place.
relevant legislation and ministerial direction
The provisions of the Act relevant to this application are as follows:
“501
...
(2)The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.
…
(6)For the purposes of this section a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined in subsection 7); or
…
Otherwise, the person passes the character test.
(7)For the purposes of the character test a person has a substantial criminal record if:
(a)…
(b)…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
…”
If the Tribunal is satisfied that the Applicant does not pass the character test then the discretion provided for in section 501(2) of the Act is available to it. In exercising the discretion, Ministerial Direction 21 is to be followed with the Tribunal having regard to the three primary considerations and a number of other considerations referred to in that direction. The Tribunal is to have regard to the importance and weight placed by the Minister on the primary considerations. Other considerations are also to be given appropriate weight, any one of which is not to individually outweigh a primary consideration.
Paragraph 2 of the Ministerial Direction 21 as here relevant states:
Protection of the Australian Community
2.4The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community. The Government is especially mindful to take reasonable steps to protect the safety of the more vulnerable members of the community, such as children and young people who are especially at risk. This is of particular importance when the offences in question are in relation to drugs and crimes of violence.
2.5The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(a)The seriousness and nature of the conduct;
(b)The likelihood that the conduct may be repeated (including any risk of recidivism); and
(c)Whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence)
Seriousness and Nature of the Conduct
2.6It is the Government’s view that the following are examples of offences considered by the Government to be very serious:
(a)The production, importation, distribution, trafficking (including possession for this purpose), commercial dealing or selling of illicit drugs:
· Persons who embark upon drug related crime for financial gain have shown a callous disregard for the insidious effects of illicit drugs on the health and welfare of Australia’s young people:
· The Government views non-citizens who have sought to profit from the import or supply of drugs whether or not motivated by their own need for illicit drugs, as extremely serious offenders. It is important both as a deterrent to other criminals and to protect Australian society that it is clearly understood that crimes involving drug trafficking, which puts the lives of young Australian’s at risk, be viewed as completely unacceptable to the community; and
· Offences involving illicit drugs of dependency or addiction, such as heroin, are also of particular concern to the government and the community;
(b)Organised criminal activity resulting in a conviction in Australia or elsewhere.
...
Further, Ministerial Direction 21 provides that:
2.7 It is the Government’s view that the sentence imposed for a crime is an indication also of the seriousness of the offenders conduct against the community.
Decision makers should have due regard to the Government’s view in this respect, including:
(a)The extent of the person’s criminal record, including the number and nature of offences, the time between offences, and the time that has elapsed since the most recent offence; and
(b)The repugnance of the crime:
·Crimes involving violence or fraud against defenceless persons (such as children, the elderly, the disabled and the incapacitated) are especially repugnant to the whole community.
…
2.10It is the Government’s view that the person’s previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism. In particular the following factors will be relevant to the assessment:
(a)a non-citizen commits a further offence after having been warned previously about the risk of refusal or cancellation;
(b)a non-citizen with several previous convictions in Australia should be considered as having an increased risk of recidivism in light of that past behaviour. In cases where there is a gap or gaps between convictions, the inference may be open that the non-citizen has demonstrated that a substantial period since an earlier conviction is not a reliable indicator that future offences will not be committed; and
(c)The extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make.
General Deterrence – the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) offence by other persons
2.11General deterrence aims to deter other people from committing the same or a similar offence. While not a conclusive factor in itself, general deterrence is an important factor in determining whether to refuse or cancel a visa. The general deterrence factor may be relevant in a number of ways:
(a)The nature of the offence may be as such that the visa refusal or cancellation may deter others from committing similar offences; and
…
Expectations of the Australian Community
2.12The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. Decision-makers should have due regard to the Government’s view in this respect.
criminal history
On 4 December 2002 the Applicant pleaded guilty at the Sydney District Court of importing into Australia a trafficable quantity of cocaine. He was convicted and sentenced to seven years imprisonment with a four year and three months non-parole period. In his reasons for sentence the sentencing Judge on 7 February 2003 amongst other matters stated:
“…That he on 25 June 2002 at Sydney did import into Australia prohibited imports… namely narcotic goods consisting of a quantity of cocaine, being not less than the trafficable quantity applicable to cocaine.
…The statement of facts sets out the circumstances under which he had arranged to make a return flight to and from Argentina and his informing his employers of that trip. The journey to Argentina was undertaken, and on the morning of Tuesday 25 June 2002, he arrived back in Sydney from Buenos Aires. He was in possession of a travel bag in which was a keg of beer, wrapped in a plastic bag.
…The keg was x-rayed and a sample was taken from its external surface which indicated cocaine.
…The street value of this cocaine was estimated to be about $699,000.
The prisoner agreed in giving evidence that he had denied knowledge of the contents of the cocaine in the barrel but otherwise declined to be interviewed by the police.
…He expressed deep sorrow for what he had done…
…Clearly, the quantity of drugs imported was towards the top of the range of trafficable quantities, approaching the two kilogram limit…
… he is properly categorised as a courier.
… the prisoner suffers from a disability in that he is blind in the right eye. He has had psychological repercussions from this physical injury in that he has, and still has, experienced feelings of inadequacy and uncertainty in his social relations which causes him to be a somewhat easily led person…
… his background suggests good prospects of rehabilitation.
… he was induced to take part in the importation of this substance…he, the prisoner, being a person easily led in that regard.
…there are mitigating factors both in relation to the objective circumstances of the offence and in relation to matters personal to the prisoner.”
He was eligible to be released on parole on 24 September 2006. On that date he was transferred to the Villawood Detention Centre where he remains pending the present decision. Whilst in gaol the Applicant, between October 2003 and July 2005, was reprimanded for offences on six occasions.
character
There is not any issue that the Applicant by reason of the provisions of section 501 of the Act is a person not of good character. The period of his sentence alone is sufficient to make this finding. I am satisfied on the evidence before the Tribunal that within the meaning of the Act the Applicant is a person not of good character.
discretionary considerations
Before turning attention to a consideration of the discretionary factors overall and assessing their respective weight, it is desirable to pay specific attention to issues relating to the protection of the Australian community, the expectations of the Australian community, the best interests of any children and the hardship that may be experienced by the Applicant if the visa remains cancelled.
The offence for which the Applicant was charged and convicted related to his bringing into Australia 1.74 kilograms of cocaine with an estimated street value of $699,000. It was within the meaning of the Minister’s Direction a very serious offence, entailing the importation and prospective “distribution, trafficking… commercial dealing or selling of illicit drugs”.
As was submitted on behalf of the Respondent the importation and trafficking of drugs has significant adverse effects on the health and welfare of the Australian community. Young members of that community are very much at risk and are particularly vulnerable to criminal conduct of this nature. The Tribunal considers such conduct to be particularly harmful to the welfare of the Australian community as a whole and deserving of much weight being placed on its significance.
The Respondent submitted that in the present instance there is an unacceptable risk of recidivism. The Applicant himself stated that “I do not think there is any chance of my re-offending” and “committing the same mistake”.
The Applicant has been residing in Australia since September 2000 initially with his wife from whom he was divorced in 2004. He has no family in Australia, his parents and brother living in Bulgaria. He has not evidenced any means of financial support in this country.
Whilst the Tribunal does not have any reason to doubt the present intent of the Applicant it cannot be unmindful of the findings of the sentencing Judge and the ease with which the Applicant was persuaded or enticed into the illicit drug importation. He may well again become a party to like activities. There is a distinct likelihood that if the required circumstances again presented themselves the Applicant would engage in antisocial conduct. The likelihood of recidivism is real.
It cannot be denied that the cancellation of his visa and deportation may well lead to hardship being experienced by the Applicant. This also to any other person who is minded to act as did the Applicant. If it is known within the community that as well as conviction and sentence a participant in the illicit drug trade who is not an Australian citizen may be liable to visa cancellation and deportation, a very strong warning should be sounded. The Tribunal attaches a significant deterrent effect to the cancellation of the Applicant’s visa and deportation to Bulgaria.
The Tribunal is further satisfied that the seriousness of the Applicant’s criminal activities is such that the Australian community would expect that a non-citizen should have his or her visa cancelled. Such conduct adversely affecting the lives of people is abhorrent to the community and should be such as to deprive a non-citizen individual of the opportunity to reside in this country.
The granting of a visa is not a right or entitlement. It is a privilege. When a visa holder engages in conduct adverse to the best interest of the citizens of Australia the holder must be at risk of losing the right of residence. The community expects no less.
There are not any children to which the Direction applies.
The Applicant’s family lives in Bulgaria and on the evidence he is able to return to that country and re-engage in life in that place. He is an intelligent man, well educated and now having competence with Information Technology, Architectural Technology and Graphic Design. There was not any evidence of the Applicant having integrated into the Australian community or of his having contributed to it in any meaningful manner. He did not display an emotional involvement with the Australian people and the country. There was not any evidence of recent good conduct. Nor was there any recognition of the hardship that might have ensued to individuals if the importation of the cocaine had been successful. Other than as mentioned by the sentencing Judge there was no expression of remorse by the Applicant.
The evidence before the Tribunal is not such as to indicate any significant hardship that might be experienced by the Applicant if his visa is cancelled.
The Tribunal is satisfied that the primary considerations of protection and expectations of the Australian community outweigh any hardship to the Applicant, such that the Applicant’s visa should remain cancelled.
The decision under review is accordingly affirmed.
I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis AM QC, Deputy President
Signed: .................[Emily Gadsby]................
Associate
Dates of Hearing 14 & 15 November 2006
Date of Decision 28 November 2006
Solicitor for the Applicant Unrepresented
Solicitor for the Respondent Ms Rose, Phillips Fox Lawyers
0
0
0