Gonzales and Minister for Immigration and Multicultural Affairs

[2006] AATA 1011

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 1011

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/1011

GENERAL ADMINISTRATIVE DIVISION		)
Re		BORIS IGOR ASTORGA GONZALES

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal The Hon R N J Purvis, AM Q.C., Deputy President

Date27 November 2006

PlaceSydney

Decision The decision under review is affirmed.

..............................................

The Hon R N J Purvis, AM Q.C.              Deputy President

CATCHWORDS

IMMIGRATION - visa cancellation - transitional (permanent) visa – lengthy residence in Australia -  character test - substantial criminal record – drug dependency – risk of recidivism – expectation of Australian community – deterrence – interests of child – decision affirmed

Administrative Appeals Tribunal Act 1975; sections 37, 42A(a)

Migration Act 1958; sections 500(6)(b), 501, 501G

Ministerial Direction 21  

REASONS FOR DECISION

27 November 2006 The Hon R N J Purvis, AM Q.C., Deputy President      

the application

1.      Mr Astorga Gonzales (“the Applicant”) arrived in Australia with other members of his immediate family on 30 August 1985. At the time of his arrival he was 10 years of age and was the holder of a Special Humanitarian Program/Chileans in Chile, Visa. He was granted permanent residence on his arrival. Under the Migration Reform (Transitional Provisions) Regulations 1994 his visa continued to be in effect as a Transitional (Permanent) Visa.

2. On 13 July 2005 a Delegate of the Minister for Immigration and Multicultural Affairs (“the Respondent”) cancelled the Applicant’s visa a consequence of which is his likely deportation back to Chile. The visa was cancelled on the ground that he did not satisfy the character test pursuant to section 501 of the Migration Act 1958 (“the Act”). The discretion available to the Respondent was not exercised in his favour.

3. The Applicant on 9 August 2005 lodged with the Tribunal an application seeking review of the Respondent’s decision. This application had not been made within the period prescribed by section 500(6)(b) of the Act and on 30 August 2005 it was dismissed. The Applicant however had not been notified of the decision of 13 July 2005 in accord with section 501(G)(1)(f)(v) of the Act and accordingly by consent, and on 20 June 2006 the application for review was reinstated pursuant to section 42A(a) of the Administrative Appeals Tribunal Act 1975. It is this application that is presently before the Tribunal.

4.      In the reasons for her decision the Respondent amongst other matters stated:

…(73) As a consequence of Mr Astorgagonzalez’s sentences, Mr Astorgagonzales is deemed to have a substantial criminal record and not pass the character test by virtue of section 501(6)(a) with referenced to section 501(7)(c) of the Act.

…

(79) I considered that Mr Astorgagonzalez’s criminal history shows he has a history of re-offending within short intervals.

(80) The nature of Mr Astorgagonzalez’s conduct and its effect on the community is such that I gave this consideration great weight, having taken the view that the Australian community is entitled to protection from such conduct.

risk of recidivism

(81) I considered the pattern of Mr Astorgagonzalez’s criminal behaviour and noted that he commenced his criminal offending as a minor and has continued into adulthood.

…

(84) I assessed that there is a continuing risk that Mr AstorgaGonzalez might re-offend. I placed great weight on his risk of recidivism.

deterrent to others

(85) In considering whether the cancellation of Mr Astorggonzalez’s visa would act as a deterrent to other non-citizens who might engage in similar activities, I found that cancellation in this instance may provide a deterrent effect. I considered that this was not a significant factor and overall I placed little weight on this consideration.   

expectations of the australian community   

(86)… I considered that the Australian community expects non-citizens to obey Australian laws while in Australia.

(87) I also accepted, however, that the Australian community would have some compassion for Mr Astorgagonzalez’s situation.

(88) In view of Mr Astorgagonzalez’s pattern of criminal offending and the seriousness of those offences, however, I believe that the Australian community would expect Mr Astorgagonzalez’s visa to be cancelled and him to be removed from Australia. I gave great weight to this consideration.

…

(92) I accepted that Taylor’s [son of the Applicant]  best interests would be served if Mr Astorgagonzalez is permitted to remain in Australia. I gave this consideration great weight.

other considerations

…

(94) Mr Astorgagonzalez has resided in Australia for 20 years. He has his immediate family and some extended family in Australia and does not have contact with his relatives overseas. He has one son Taylor Cousins, who is 7 years of age, to his former de facto spouse.

(95) I took into account Mr Astorgagonzalez’s comments that he does not have any support in Chile and that he would experience difficulties as he does not have a fluent command of Spanish.

(96) I accepted that Mr Astorgagonzalez would suffer considerable hardship should his visa be cancelled resulting in his removal from Australia.

(97) Although comments have not been received from Mr Astorgagonzalez’s family, I also concluded that they would suffer hardship should Mr Astorgagonzalez return to Chile.

…”

the issues for determination

5.      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

·The discretion available to the Tribunal to cancel the Applicant’s visa should or should not be exercised in his favour.

the hearing of the application

6.      At the hearing of the application the Applicant was for a part of the hearing represented as amicus curiae by Mr Richard Killalea of counsel. Otherwise he appeared on his own behalf. The Respondent was represented by Mr John Bird, Solicitor of Phillips Fox Lawyers.

7. The documents lodged with the Tribunal and served upon the Applicant pursuant to the provisions of section 37 of the Administrative Appeals Tribunal Act 1975 were admitted into evidence and marked G1 to G17. Written material tendered by or on behalf of the parties was admitted as exhibits and marked accordingly, namely:

Exhibit A       Report of Dr Gregory Fathers, Psychologist dated 19 October    2006

Exhibit B       Affidavit of Mr Astorga Gonzalez dated 15 December 2006

Exhibit 1        Sentencing remarks from District Court dated 17 June 2004

8.      The Applicant gave evidence upon which he was cross-examined.

relevant legislation and ministerial direction

9. 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 that 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

…”

10. 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.

11.     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 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 Australians 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.

...

(f)        murder, manslaughter, assault or any other form of violence against                   persons;

…

(n)       any other crimes involving violence or the threat of violence:

•         such crimes are of special concern to the welfare and safety of   the Australian community

12.     Ministerial Direction 21 further 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;

(b)The repugnance of the crime;

(c)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;

(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.

The Best Interests of the Child

2.13This consideration only applies if the child is or would be under the age of 18 years when the decision comes into effect.  The best interests of any children aged 18 years or more is not a primary consideration but may be considered with other considerations under paragraph 2.17

…

2.17When considering the issue of visa refusal or cancellation other matters, although not primary considerations, may be relevant.  It is the Government’s view that where relevant it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations.  These other considerations may include:

(a)The extent of disruption to the non-citizen’s family, business and other ties to the Australian community

…

(c)The degree of hardship which would be caused to immediate family members lawfully resident in Australia including Australian citizens (including whether the immediate family members are able to travel overseas to visit the non-citizen); the nature of the relationship between the non-citizen and the immediate family members; whether immediate family members are in some way dependent on the non-citizen for support which cannot be provided elsewhere

(d)Family composition of the non-citizen’s family both in Australia and overseas

…

(h)Any evidence of rehabilitation and any recent good conduct

…”

factual situation generally and findings  of fact

13.     As aforementioned the Applicant entered Australia on 30 August 1985. He was born in Chile on 6 May 1975 and had lived in that country with his family up until the time of his leaving for Australia. Seemingly his father had been out of favour with the Chilean authorities, had been incarcerated and tortured by them and on this account the father was accepted by Australia, with his family, as immigrants under its Humanitarian Program.

14.     The Applicant was aware of the then political situation in Chile and of the position in which his father found himself. The three to four years prior to the family leaving Chile were unsettling for the Applicant and his family. They lived in a “climate of constant fear” (Exhibit A). The Applicant says that in addition to the political ramifications affecting him, he was the subject of sexual molestation by a relative.

15.     The Applicant says that he has “bad memories of that place” and “never intended to go back”.

16.     The family application for migration was organised by the Roman Catholic Church. The family then consisted of the father, mother, the Applicant and a younger brother and sister. The latter mentioned siblings are both now married with families living in Sydney.

17.     Accommodation was obtained for the family at Coogee, a suburb of Sydney, the family later relocating to Eastlakes where the Applicant’s parents still reside.

18.     Initially the Applicant experienced difficulties in adjusting to life in a new country. He attended English language classes and was enrolled in school where he remained until he was part way through year 11. He was unsettled in his schooling, his conduct disturbing to others. He says he “mixed with the wrong crowd” and joined in the use of marihuana, LSD and amphetamines. He used substances from his first year in high school, that is, from about the age of 12 years and by the time he left school was “regularly ingesting ecstasy and amphetamine products” (Exhibit A, p3).  By the time he was 21 years of age he was using narcotics and injecting heroin.

19.     The Applicant attributes his addiction to the latter mentioned drugs to the influence of a girlfriend with whom he had a son Taylor. He lived with this lady for about four years. The son is now eight years old living in Melbourne with his mother. The Applicant has not had any contact with mother or son since 2001.

20.     The Applicant maintains that a cause of his drug addiction even from an early age was a need on his part to belong, to be accepted by other young people. He felt initially as an outsider, rejected by his peers and the use of drugs illustrated or proved that “he was one of them”. The Tribunal accepts this evidence of the Applicant, even be it a sad reflection upon the willingness of young Australians to accommodate a person who is “different”, and coming from an unfamiliar background. However, for the Applicant this was not a passing phase. He continued to use drugs up until recent date. Indeed the evidence before the Tribunal is that unless and until the Applicant undergoes a successful treatment program the probability is that he will return to the use of drugs on his release from detention.

21.     The Applicant’s employment history is spasmodic. He has worked at various occupations including hairdressing, fabric laying, a storeman and a bar attendant. 

22.     In 1997 the Applicant was involved in a motor vehicle accident. According to a report of 23 July 2001 of a Dr Chris Eliades:

“… He had multiple skull fractures involving both maxillary antrums, nasal fracture, skull base fracture and compound left sinus fracture and left temporal lesion. He also sustained intra cerebral injuries including brain stem contusion as well as multiple facial lacerations. There was quite a prolonged period of recovery as well as ongoing counselling for same.” (G8/63)

23.     The Applicant says that consequent upon the accident and the injuries that he sustained he felt weak and often disoriented. Thereafter however he continued his use of drugs. He moved to Melbourne to be with his partner. He remained there for about 12 months. He had not recovered from his injuries but did attempt to undergo a course of “basic electronics” at a TAFE college. It was at this time that the son was conceived. The girlfriend’s parents came to her assistance, providing no help to the Applicant. The Applicant left his partner and began to live alone in a boarding house where his drug use and dependence increased. He committed offences in order to support his drug addiction. He was seemingly, at this time, not afforded any assistance by his parents or siblings.

24.     The Applicant has attempted to deal with his substance use by attending drug and alcohol counselling and therapeutic programs whilst in gaol. They were however to a limited effect. He was introduced to Methadone in 2003 and is still on a program.

25.     On his release from jail in 2003, whilst living for a while in his parents flat, he sought out his former drug oriented associates and in whose company he felt “free of criticism and judgement”. He was under the influence of drugs when he committed the 2004 offence.

26.     According to Mr Gregory Fathers, a Psychologist who examined the Applicant for the purpose of these proceedings and reported upon him (Exhibit A), the Applicant “said that he felt unsettled and angry and was often impulsive and disinhibited. These behaviours intensified when he used narcotics”. According to the psychologist, the Applicant has never been through detoxification or a non-institutional based drug program.

27.     The Applicant was initially notified of his liability to visa cancellation on 4 December 2002 (G5/39). This was whilst he was serving his sentence for robbery. He committed the 2004 offence with knowledge of his liability to visa cancellation.

criminal history and sentencing observations

1992 November 16	Assault and use of offensive implement Possession prohibited drug		Good behaviour
1993 January 21	Larceny	Good behaviour bond
1996 September 30 October 11 1997 May 20 1998 November 22 1999 February 15 March 6 March 7 October 15 2000 April 20 August 30 September 8 October 4 November 7 2001 January 24 April 24 May 15 2004 February 19	Possession of prohibited drug Receiving Break/enter and steal Break /enter and steal Possess prohibited drug Possess prohibited drug Fail to comply with bail conditions Drive under influence of drug Possess prohibited drug Possess prohibited drug Possess prohibited drug Supply prohibited drug Possess prohibited drug Possess prohibited drug Breach of bail conditions Goods in custody suspected stolen Possess prohibited drug Supply prohibited drug Possess prohibited drug Supply prohibited drug Goods in personal custody suspected stolen District Court Robbery and assault District Court Assault occasioning actual bodily harm Maliciously inflict grievous bodily harm		Convicted, fined $150 Convicted, fined $150 Convicted Community service order Convicted, fined Convicted, fined Convicted, breach of recognisance   Convicted, fined Convicted, fined Convicted, fined imprisonment 6 months Convicted,  fined Bail order made Convicted Convicted, sentenced to imprisonment Convicted, imprisonment 4 years Convicted, imprisonment 27 months Convicted Imprisonment 27 months

Whilst in detention the Applicant in March 2003 was found to have stolen goods and in October and November 2004 failed a urine test.

observations of sentencing judges, pre-sentence and pre-release reports

28.     In the course of giving his reasons for sentence, the District Court Judge on 2 November 2001 amongst other matters stated:

“..The prisoner adhered to pleas of guilty before me to three counts, one of robbery, two of assault…

The prisoner at a time when he says he was affected by drugs, heroin and the drug he had taken, that had been prescribed to him, Valium, went up to a young lady, drawing money from the teller machine for own use, as she was entitled to do. He threatened her with the words ‘give me the money or I’ll stab you’, in fact he did not have a knife and she was not to know this but she stepped back and he took the money. He went off, he was pursued by people, one of whom was a young lady who was hit by him with a piece of wood and subsequently he was overpowered by a number of people whereupon it was seen that he had in his sock a syringe, which he pulled out and threatened the other person with and ultimately he was overcome and charged…

At the time these offences were committed he was on a bond…

It is said that from 1998 he has had no fixed residence and he has lived with various people at hostels and on the streets. It is a sad state of affairs. He has done some from time to time and there is no doubt that he was at a time of the matter affected by drug. He says that he is making efforts to rehabilitate himself…

Having said all those things and the fact remains that the main offence and those that follow from it is a very serious matter…

It is to no effect to tell people that it happened because I was intoxicated by drugs that does not people any happier and neither is it any mitigation as I understand the law that that be so…

It is up to you then whether you in fact rehabilitate yourself. No one else is going to do it for you; you are the only one that has got to do it for yourself….” (G14/89)

29.     In a Pre Sentence Report of 19 October 2001 it was stated:

“The offender reports he commenced smoking marihuana when he was 12 years old, using LSD and speed in his teens and heroin and cocaine in his early twenties…

Mr Astorga presents as man whose life has been disrupted by longstanding drug use. The offender appears to have become increasingly unstable following a car accident in 1997.

Unless he addresses his drug issues, Mr Astorga appears at risk of further offending. Due to the longstanding nature of the drug problems, it appears that a long term rehabilitation programme may provide the most favourable opportunity for the offender to resolve his personal issues.” (G16/96)

30.     Under date at 31 January 2003 and in a Pre Release Report a probation and parole officer states:

“Mr Astorga is confident that he has acquired the skills necessary to assist him to refrain from further drug use post release. An added incentive for him is the fact that his visa could be withdrawn by the immigration Department should Mr Astorga fail to lead a law abiding lifestyle.” (G16/101)

31.     In the course of delivering his reasons for sentence the District Court Judge on 17 June 2004 amongst other matters stated:

“…he then violently with fists and feet attacked an elderly invalid person who apparently on descriptions appeared as I have just described.

The attack was cowardly. There was little provocation for it and was carried out with the offender having lost control of himself and, with no regard to the victim, continued with his feet and fists a prolonged assault that was only ultimately stopped by passers-by and police officers…

The offender at the time of the commission of this offence was on parole…  The offender says that in addition to a prescribed dose of methadone he had taken Normison and I take it proffers this as a reason for his uncontrollable rage, behaviour and assault.  I do not accept that such was provoked merely by those medications and I am of the view that the offender had taken other substances which contributed to his violence and his failure to control himself.

Such an offence is one which must, in my view, result in a prison sentence. The offender has a long history of criminal activity, including violence, break and entering and stealing and for the robbery to which I have referred. It is not a record which would allow the Court to extend to the offender any leniency whatsoever. It may be that the offender’s background is one of which he has had no control of and has left him in unfortunate circumstances. Be that as it may, he had control of himself of this day [sic]  and has control of his life and the conduct of his life…”

32.     The Applicant was represented by counsel at the time of his appearance in June 2004. The Applicant maintained before the Tribunal that the man he attacked was assaulting a girl and that his action was in aid of protecting her. No submission to this effect was made to the sentencing judge. The Tribunal does not accept that the conduct of the Applicant was other than as described by the sentencing judge.

33.     The Applicant maintains that he is “non criminal by nature”. His criminal record says otherwise. Anything he has “done [he says] was [done] with drugs and the associating people”. This is no defence and causes the Tribunal to be concerned as to the distinct likelihood of the Applicant re-offending if released into the Australian community. The Tribunal has no hesitation in finding that on the basis of the Applicant’s past criminal history, the above observations and the reports, including that of the psychologist, that there is a distinct likelihood of his resuming the use of drugs and re-offending.

character

34. 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 most resent sentence alone is sufficient to make this finding. Before turning attention to a consideration of the discretionary factors overall, however, it is desirable to pay specific attention to issues of recidivism, the best interests of the child and the hardship that may be experienced by the Applicant and members of his family if the visa remains cancelled.

35. I am satisfied on the evidence before the Court and within the meaning of the Act that the Applicant is a person not of good character.

discretionary considerations

Protection of the Australian community

36.     The 2004 and 2001 criminal conduct of the Applicant was very serious. It was brutal and carried out regardless of the consequences. It was thoughtless. It was drug affected. It was such conduct as the Ministerial Direction specifies as being abhorrent to the Australian community. It may be that the Applicant now expresses a desire to be rehabilitated. He has also so expressed a desire in the past. It may be however that he does not have the capacity to rehabilitate himself. He has been warned and given the opportunity to repair his conduct but to no avail. He continued to behave as before even in prison. He is whilst affected by drugs not able to appreciate the consequences of his actions. He is likely to revert to the use of drugs when the way of his life becomes difficult or his family, as on the history is likely, provides him with, as he sees it, insufficient support.

37.     The Applicant was given the opportunity on a number of occasions, by the Courts and by the Minister, to change his conduct to conform with the Australian society and not act in a way that is adverse to its interests. He failed to do so.

38.      On 17 June 2004 the Applicant as above mentioned was convicted of assault occasioning actual bodily harm and sentenced to a term of imprisonment of two years and three months with a non parole period of 18 months. As described by the sentencing judge (Exhibit 1) the offence entailed the Applicant “violently with fists and feet” attacking “an elderly invalid person”.  The attack was described as “cowardly”.

39.     Yet only 15 months earlier in stating why his visa should not then have been cancelled the Applicant stated (G8/59):

“Yes I believe I have been rehabilitated. I have done programmes to help me with my offending behaviours, I feel I have changed in a very positive way my family feels the same.

I want to show them that I have also show the community that I have and stay positive for the sake of my family and my son…

To start I have all my family here, I also have a son in Australia.

The reason why I think my visa should not be cancelled, mainly is because I made a mistake and I’m paying for that mistake by being sent to jail.

While I been in here I’ve learnt how inconsiderate it was of me to make that mistake.

There is not a day that goes by without me thinking how this has ruined some of my life, and I don’t ever want to make the people around me suffer like this ever again and Australia is my home.”

40.     It is implicit from the psychologist’s report that unless the Applicant receives treatment the risk of recidivism is high. An observation to a similar effect was made by the sentencing judges. The Applicant, on release after serving the sentence of imprisonment in 2001, made little attempt to obtain assistance. In fact he reverted to his earlier form of conduct. The Tribunal is satisfied that the risk of recidivism is high.

41.     Whilst not of paramount significance in this application the deterrence effect of visa cancellation cannot be disregarded. Non citizens will be warned against acting contrary to Australian law. If they do seriously offend, they may be subject to visa cancellation and deportation. The Applicant seemingly did not take any notice of the warning that he was given in 2002 as to possible visa cancellation or alternatively he deliberately ignored the warning. Others may be minded to do the same. If so, it is at their own risk or peril as to visa cancellation.

expectation of the australian community

42.     It was submitted on behalf of the Applicant that “he should be given a second chance”, this having in mind the experiences of his childhood, including the molestation and his father’s incarceration, the trauma of life in Chile, his drug addiction and its significance in the criminal history. The Applicant, it was said, now understands “the severe psychological impairments he lives under”.

43.     The Applicant has been already given a second chance. He has indeed been given many opportunities to alter his pattern of behaviour and desist from his anti-social conduct. This by the Local Court Magistrates, District Court judge and the Minister. He has paid no heed to warnings given to him. He has, as it was put on behalf of the Respondent, “breached the trust” that was vested in him.

44.     It is true that the Applicant suffered during his childhood from trauma in Chile and may have experienced difficulty in adjusting to life in Australia. But he is not an unintelligent person and he should have heeded the examples set by his parents, brother and sister. He chose to live his life his way. He must bear the consequences.

45.     It may be that with treatment his drug addiction could abate. He has had opportunities to undergo such treatment in the past. He failed to do so. He may genuinely wish to change his ways and become “a different person”.

46.     The Tribunal is satisfied however that the Australian community not only expects non citizens, as with citizens, to obey the law. It expects that persons who with clear intent refuse over a lengthy period to act in a socially acceptable fashion should not be allowed to remain in the community but sent back to the place from where they came.

best interests of taylor cousins, born 7 january 1998

47.     It was in about 1994 that the Applicant formed a relationship with Taylor’s mother. They separated in 1998. There was thereafter and up until 2001 infrequent contact. Since 2001 there has not been any association between the Applicant, his ex partner, nor the son.

48.     There is not any evidence as to the child’s mother maintaining an interest in the Applicant. The evidence would indeed indicate to the contrary. If the Applicant sought to do so, he could just as easily communicate with Taylor by letter from Chile as from Sydney.

49.     There is not any evidence of a father-child relationship that is likely to be affected adversely by the father being absent from Taylor and living in Chile.

50.     It is true to say, as did the Respondent, that it is preferable for a child to have contact in a personal sense with his or her father. However the benefit of such conduct must depend upon the nature of the relationship and the extent to which the child might well benefit from it. If the Applicant should revert to his previous drug addiction and have contact with the child the same may not be in the best interests of the child. However this is conjuncture for there is no evidence of a meaningful relationship, or indeed any relationship at all, existing at this time.

physical and mental condition of the applicant

51.     The psychologist earlier mentioned in these reasons, following up on a four hour examination, made an assessment of the Applicant. Amongst other matters he stated:

“…

The results indicate that Mr Gonzalez would have problems with attention to task, complex sequencing and decision-making. He would experience cognitive and behavioural disorganisation, loss of abstraction, loss of hypothesis generation and testing, impaired problem solving, attention regulation and working memory.

At the time off {sic} the alleged offences one would also have had to take into account his heavy substance use. He would have presented as impulsive, disinhibited, with loss of foresight and social judgment and an inability to delay gratification…

Mr Gonzales reported poor socialisation and impulse control, poor emotional adjustment, persecutory ideas and thinking disorder, social introversion and a tendency to self-depreciation. Mr Gonzalez reported that he was aware of his unusual behaviour patterns…

His memory was vague. His attention span was clear. Mr Gonzalez cognitive status was mildly clouded. He presented as suspicious… he lacks judgement and foresight and therefore is not a forward planner. His behaviour is reactive and typically impulsive and often disinhibited, especially given his substance abuse history…

Mr Gonzalez has a chronic “substance abuse disorder”. Over time he would have experienced Anxiety Disorder/Mood Disorder, Intoxication and Intoxication Delirium, memory loss, disordered perception, episodes of Psychotic Disorder and Withdrawal and Withdrawal Delirium…

There is evidence of underlying personality dysfunction and poor personal and social adjustment. He seemed to have been able… to express a limited range of emotion in social interactions and formed few if any close relationships with others. Obviously, his history has much to say in that regard. He has tended to behave impulsively; his relationships, self-image, and emotions are unstable…

Mr Gonzalez has not attended, had any formal, clinic-based therapeutic drug program. He should be assessed for detoxification and further treatment. He has unresolved problems related to his childhood experiences and his poor social adjustment…

Mr Gonzalez also should have a vocational assessment, vocational training and work experience placement. He has no work skill set to call on and is not work hardened. ..

I would argue that these issues or problems remain as untreated and need to be treated in line with the recommendation above. If Mr Gonzalez were treated appropriately then the risk of recidivism reduces markedly. No guarantees can be given, obviously. What is important to note, however, that he has not been offered such treatment and support previously in the community setting.

If Mr Gonzalez were referred to a clinic it would be hoped that a clinical psychologist or psychiatrist would assess him. His history is a complicated one and there are many issues to untangle, apart from any effort to re-socialise Mr Gonzalez. His mood and affect would require further assessment once he has been detoxed to further stabilise and support him.” (Exhibit A/pp6-9)

other considerations

52.     In the event of the Applicant’s visa being cancelled, his parents and other members of his family in Australia will suffer some hardship. They were present during the currency of the hearing before the Tribunal but did not give any evidence. They have suffered from the Applicant’s criminal behaviour in the past. They have experienced his reversion to drug addiction and antisocial behaviour. The Applicant says that his family have not given him their assistance in times when he was in need. 

53.     The Applicant says that he has had time whilst in detention to think. He has “a different view of life now”. He wants, he says “to do the right thing and set my life straight”. He has said much the same in times gone past. He has a grandfather in Chile, but little current awareness of conditions in that country. Nevertheless his mother has recently returned from visiting relatives in Chile. The Applicant will suffer hardship if he should be deported. This is a factor to be considered in the totality of the evidence but one of which he was well aware at least since 2002.

54.     The Tribunal, for the reasons set forth in support of the decision under review, is satisfied that the Applicant is not owed protection by Australia.

decision

55.     The Tribunal, on the basis of the evidence before it and the above discussion of that evidence, is satisfied that the criminal conduct of the Applicant was very serious and of a nature abhorrent to the Australian community. It is further satisfied that there is a high risk of the Applicant on release again engaging in anti-social conduct. It is not confident that he will seek treatment for his addiction or his psychological impairment. He has had the opportunity in the past and not availed himself thereof. There is reason to believe and accept that visa cancellation might deter other non citizens acting contrary to the law and/or taking it into their own hands. Such conduct is not acceptable in the community.

56.     The Tribunal is satisfied that consideration of protection of the Australian community and the expectations of that community override the consideration of the best interests of the son Taylor, even be it such interests might be served by his father remaining in Australia. The latter however might not be assured if the Applicant reverts to his previous addictions and behaviour. The other considerations including those of hardship to members of his family do not weigh in favour of the Applicant so as to warrant a finding in his favour.

57.     Accordingly the decision under review is affirmed. 

I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis AM Q.C., Deputy President.

Signed:         K. Portus           .....................................................................................

Associate

Date of Hearing  31 October 2006

Date of Decision  27 November 2006
Solicitor for the Applicant               Self-represented

Solicitor for the Respondent         Mr J. Bird