Gorrie and Minister for Immigration and Citizenship
[2009] AATA 298
•30 April 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 298
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/0781
GENERAL ADMINISTRATIVE DIVISION )
Re Peter James GORRIE
Applicant
AndMinister for Immigration and Citizenship
Respondent
DECISION
TribunalProfessor GD Walker, Deputy President
Date30 April 2009
PlaceSydney
DecisionThe decision under review is set aside.
……………….[sgd]……………...
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION – visa cancellation – character test – whether the applicant passes the character test in s 510(6)(a) of the Act – failure to declare criminal convictions on incoming passenger card – sufficient to fail test – substantial criminal record as defined in s 501(7) - past and present criminal or general conduct within s 501(6)(c) – whether the tribunal should exercise its decision to exercise or affirm the decision made by the delegate to cancel the applicant’s visa, applying ministerial Direction No 21
RELEVANT ACTS:
Migration Act 1958 (Cth) (the Act): ss 5, 32, 102, 106, 109, 234, 499, 501, 506
CITATIONS
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Re Msumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192
Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780
Re Pulepule and Department of Immigration and Multicultural Affairs [1999] AATA 1018
Re Toia and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1142
Green v Minister for Immigration and Citizenship [2008] FCA 125
Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56
Re Sam and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003
Al-Kateb v Godwin (2004) 219 CLR 562
Re Zhou and Minister for Immigration and Citizenship [2007] AATA 1766
Robtelmes v Brenan (1906) 4 CLR 395
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458
Re Tuivuya and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 954
Re Toia and Minister for Immigration and Citizenship [2007] AATA 2078
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608
…
OTHER AUTHORITIES
Direction No 21
I.A. Shearer, Starke’s International Law, 11th ed., Sydney, 1994, 314-315
I Brownlie, Principles of International Law, 5th ed., Oxford, 1998, 552
Norberg, J., “In defence of global liberalism”, Policy, winter 2006, 43, 47
…
REASONS FOR DECISION
30 April 2009
Professor GD Walker, Deputy President
Basic facts
1. The applicant Mr Peter James Gorrie was born in New Zealand in September 1969 and is a citizen of that country. He is married but separated from his wife and is currently in a long-term de facto relationship.
2. He first came to Australia on 2 August 1982, remaining for 12 days as a member of a touring football team. He next arrived in Australia on 1 May 2006 at the age of 36 and was granted a class TY subclass 444 special category visa. He has not left Australia since.
3. On arrival in May 2006, he marked on his incoming passenger card that he did not have a criminal record. A New Zealand police report issued on 20 March 2008 shows, however, that the applicant has a substantial criminal history in that country. He has convictions for drug cultivation and supply, theft and burglary, a range of dishonesty offences and driving offences. The penalties imposed for those offences ranged from fines to periodic detention to imprisonment for two years.
4. His traffic offences history in New Zealand includes three convictions for driving while disqualified, five excess alcohol convictions and other contraventions. Penalties for those offences ranged from fines to community work to periodic detention and disqualification from driving. The applicant’s last New Zealand conviction was on 29 March 2006 and he was disqualified from driving for one year and three months on that date.
5. The applicant's convictions in Australia include a number of traffic offences. On 7 June 2007 he was convicted as a never licensed person driving a vehicle on a road and driving with middle range PCA. He received fines and a six-month disqualification. On 22 January 2008 he was fined for negligent driving, proceeding after stopping for red or yellow traffic arrow, and not giving particulars to other driver. He was also convicted on two charges of driving while disqualified and received a fine and sentences of six months' imprisonment and 12 months' imprisonment. The 12-month sentence was altered on appeal to 12 months’ periodic detention and a bond for two years. On 18 June 2008 the State Parole Authority revoked the applicant’s periodic detention order and imposed a 10-month, 21-day sentence of imprisonment. He was transferred to Parramatta Correctional Centre to serve that sentence.
6. The applicant was issued with a notice of intention to consider cancellation of his visa on 28 July 2008. In the course of other correspondence he was queried about the information he supplied on his incoming passenger card and given the opportunity to comment. Apart from acknowledging receipt, he did not respond to any of the correspondence sent to him.
7. A delegate of the respondent on 19 February 2009 cancelled the applicant’s visa under s 501(2) of the Migration Act 1958 (Cth) (the Act) on the ground that he did not meet the character test and that he had a substantial criminal record as defined by s 501(7) of the Act. The basis for that finding was his New Zealand conviction on counts of burglary and receiving for which he was sentenced to imprisonment for terms of two years and one year respectively.
8. The applicant applied to this tribunal on 23 February 2009 for review of the cancellation decision.
9. At the hearing, the applicant appeared in person, while Mr Greg Johnson of DLA Phillips Fox represented the respondent. The documents before the tribunal comprised the documents produced pursuant to s 501G of the Act (“the G documents”), taken into evidence as Exhibit A1, together with the other documents tendered by the parties at the hearing. The applicant gave oral evidence in person. On behalf of the applicant, Mr Jason Stone also provided evidence in person with Ms Manu Mikaere providing hers by telephone.
Issues
10. The issues in this case are:
(i)whether the applicant passes the character test in s 501(6)(a) of the Act, given his substantial criminal record as defined in s 501(7) of the Act or his past and present criminal or general conduct within s 501(6)(c) or both; and if not,
(ii)whether the tribunal should exercise its discretion to set aside or affirm the decision made by the delegate of the minister to cancel the applicant’s visa, applying ministerial Direction No 21.
Relevant law and policy
11. Under s 501(2) of the Act, the Minister may cancel a visa if the holder does not satisfy the Minister that the person passes the character test (s 501(2)(a) and (b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant grounds in the current matter are paragraphs (a) and (c) as follows:
…
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)); or
…
(c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct;
(ii) the person’s past and present general conduct;
the person is not of good character; …
…
12. “Substantial criminal record “ is defined in s 501(7) as follows:
…
(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; or
(d)the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; …
…
13. Under s 499(1) of the Act, the Minister may give written directions to a person or body performing functions or exercising powers under the Act with which, in accordance with s 499(2A), the person or body must comply. That includes this tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.
14. On 23 August 2001 the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard, notwithstanding that a person does not pass the character test, when exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
The applicant’s evidence
15. In his statement dated 11 March 2009 (Exhibit A2), which he adopted at the hearing, the applicant wrote that he came to Australia in May 2006 planning to start afresh and make a better life for himself and his family. Knowing that he would not be eligible for government assistance, he knew that finding employment should be his first priority.
16. As a skilled worker in the roofing trade, he found that there was a shortage of skilled tradesmen in that business and soon found a position with JS & B Plumbing. He has been employed with them now for the past two and a half years and has become an important part of their team.
17. Having found full-time employment, he was ready to have his de facto partner, Ms Manu Mikaere, and two children join him. They rented a property at Kogarah and he was doing well, Manu also finding employment. The children were both enrolled at school and joined rugby union and league clubs.
18. All went well until the applicant started driving. He was charged with a series of driving offences that brought him to the attention of the respondent. Having now served the punishment imposed, which put tremendous strain on his family, he was looking forward to being able to resume a normal life.
19. He apologised to the Australian public and now realised that his irresponsible behaviour would not be tolerated and could have wrecked his chances of staying in Australia. He had addressed his criminal behaviour and he would not put himself in the same situation again. With age had come maturity and he felt that he is a changed man, far different from the reckless and self-destructive man he was in New Zealand.
20. He has four other children with his first wife, Selena Gorrie, who moved to Australia with the two youngest children, Jordan and Kayla, in 2008 and they live in Queensland. He has maintained a relationship with those children while they have been in Australia. He has a son, Logan, with Ms Mikaere.
21. He feels that if he is removed from Australia, his relationship with his children would be damaged irreversibly. He had tried very hard to better himself in Australia so that his relationship with his children could continue to flourish.
22. Apart from the 2007 driving offences, he had not committed any other offences. If he were removed from Australia, the strong bond he had developed with his son Logan would deteriorate through separation. Young boys need their father in their life and that would be an injustice to Logan and his other children.
23. At the hearing, the applicant acknowledged that his New Zealand criminal record (G pp57-60) as correct. He accepted that he had been convicted in New Zealand of drug possession, but said he had left that context and those activities when he came to Australia with his present partner and Logan.
24. He did not really come to Australia to start afresh without his convictions and knew that he could never escape from his New Zealand record. He had told the judge at the time of his first Australian conviction that he had a New Zealand record, and was accordingly placed on probation. He knew that he could not hide his New Zealand background and for that reason had used his own name and his own documents and had never concealed the fact that he was a New Zealander. He knew that his background would be checked if he applied for work.
25. At the time he came to Australia he did not realise that he would need a visa or that he would be eligible for a special category visa. He acknowledged that he had given false information on his incoming passenger card (G p70), agreeing in hindsight his first action on arriving in Australia was thus to mislead the immigration authorities, but said he had not previously travelled as an adult. He had ticked the “no” box in answer to all questions, but if he had known the trouble it would cause, he would have ticked “yes” to the question about criminal convictions. He did not come to Australia to deceive and had thought that as soon as his passport was scanned his criminal record in New Zealand would be brought up. He did read and understand the form but wanted to make a fresh start. In his excitement he had flown through the questions but did not realise the ramifications of ticking “no”.
26. He now realised that if he had disclosed his convictions he would have been interviewed and that his chances of entering the country would have been affected, but he had thought if there had been security concerns about him an alert would have come up on the screen from his passport; he did not intend to deceive in relation to his record. He knew the police in the two countries worked together and that if his record came up the migration authorities might turn him around, and he only had a one-way ticket.
27. He then said that he did not think his record would have prevented entry. To answer “no” was easier in the sense that he came for a fresh start. It looked silly but he had not meant to deceive and had thought it was a simple formality.
28. He had been to jail a total of six times. He had served 17 months of the two-year sentence and some short sentences before that. The last occasion was in 2000. His total time in prison was close to three and a half years.
29. He acknowledged his Australian criminal record (G pp52-56) and said he had a problem with driving. The probation service had only been able to recommend that he take driving classes. His only Australian custodial sentence was the 12-month sentence, which had been reduced to nine months’ periodic detention on appeal.
30. He had one conviction for mid-range PCA (G p52). He did not have to go to court in relation to that matter. The court’s decision was mailed to him, but he had just moved and did not receive it. He re-offended again three weeks later and realised he should not have taken the matter lightly. He had not driven since. He did not need to do so for work and his de facto has a license herself.
31. He had not replied to the department’s correspondence, thinking it was optional because he had not been imprisoned for 12 months. He had thought that if he had an immigration problem, he would have been classified C1 at Silverwater and someone from the department would have come to see him. He had not realised that his New Zealand convictions would be taken into account, but acknowledged that the department’s letter of 14 August 2008 (G pp67-68) made it clear that they would, adding that maybe he did not “get it”, and had thought that they already knew about his New Zealand record.
32. When he had first come to Australia in 2006 he had stayed with his de facto’s brother. He also has two uncles in Australia. Before his incarceration he had been living with Manu, Logan and his stepson Karamana. He had lived with them all in New Zealand for about 10 years. He had married his wife Selena in 1991 and they had four children, three of whom are in New Zealand. The eldest (twins) are 19. Both had joined the New Zealand army and one was still serving with it. The other had left the army and was now a policeman. The applicant had served in the army himself in 1989.
33. All four children of his marriage to Selena are now in New Zealand, as Selena and Kayla had returned to New Zealand the previous day to take care of Selena’s ailing mother.
34. Of the four children of his marriage, Nathan and Jason are 19. Jason is the one who has left the army. Jordan is 15 and Kayla is 13 or 14.
35. He has regular contact with Jordan and Kayla by telephone, but less frequent contact with Nathan and Jason because they are now independent. When in New Zealand he was in closer contact, but not as often as he would like because their mother lived in another town. There had never been a custody battle between them and he was still part of the family as regards the children.
36. He had the most contact with Logan and with his stepson Karamana. He has lived with them the whole time except while in jail.
37. His parents live in New Zealand and they maintain a normal degree of contact by telephone, similarly with his two brothers and sister. He has some contact with his uncles in Australia but not a great deal. There are also three cousins here, but he does not see them very much.
38. He is an integral part of the JS & B Plumbing business. He cleans roofs and gutters, repairs leaks and re-roofs public school buildings. While in New Zealand he had done roofing work in Rotorua, but there was not much development and construction in that area. Part of the time he was thus unemployed and earned money by hunting possums (apparently lawful in New Zealand). Being unemployed, he was a principal carer for Logan.
39. His main reason for coming to Australia was to use his roofing skills, as he is a hard worker. He had found employment within three days and as soon as he obtained a full-time position, had brought Manu and the children over. He agreed that he might also be able to find roofing work in other New Zealand cities and towns.
40. Manu, like himself, had come here for a better life. She had found a good job, the children liked it here and were well settled in school. None of them wanted to move back to New Zealand. If he were returned to New Zealand it would be very hard to maintain his bond with Logan by telephone. He is much closer to Logan than he was to the earlier four children.
41. If Manu and the children stayed in Australia while he was removed to New Zealand, it would destroy the relationship, but as he wanted the best for her, he would accept it. She works full-time in a good position at Macquarie Bank and is the sole provider at present. It would be better for Logan to be here than with both parents in New Zealand. Manu had severed her New Zealand ties and everything she owns is here. Her brother is here also. The applicant felt he should not have put her in the predicament in which she now finds herself, but it would be better if she stayed in Australia. The cancellation proceedings had affected her enough as it was. Unfortunately the family unit would be destroyed.
Applicant’s supporting witnesses
42. Ms Manu Mikaere at the hearing adopted her statement (Exhibit A4), in which she wrote that she had known the applicant for over 10 years and had been in a de facto relationship with him for all that time. They have a nine-year-old son Logan and she has another son Karamana from before she met the applicant.
43. When she first met the applicant he was not very responsible and was stealing to cover his gambling habit, which meant that he went to jail twice when they began their relationship. After his last period of imprisonment in New Zealand he stopped stealing and stayed out of trouble for a long time. She had taken that as a sign of maturity and of wanting to improve his life.
44. In 2006 they decided they needed a change and resolved to start a new life together in Australia. The applicant came over first and she followed three months later. Not long after she arrived he had a permanent position and she was able to settle her children into school and find a good job, which she currently still holds on a permanent basis. She works in collections at Macquarie Bank.
45. Over the years the applicant has developed a close and loving relationship with their son as he has spent most of his life with him. She knows Logan loves his father very much. The applicant has taken an interest in Logan’s sport and has usually been his coach in the rugby union teams that Logan has joined. They also share a love of fishing. The applicant has been there for his son all his life and has developed a strong bond that unfortunately his other children had not experienced.
46. Since they have been in Australia the applicant has been trying to improve his life and his actions. He has accepted his responsibilities and has even started a savings plan, something that had never happened before. When he was sentenced for his driving offences, he realised his mistakes and has not driven since. He has no intention of driving again or of offending in any other way.
47. She believes it would be detrimental to the applicant’s relationship with Logan if he were removed, as they would eventually lose their bond; she would not move back to New Zealand because she and the children are settled here.
48. In cross-examination Ms Mikaere said that his conduct had been improving in Australia and she had hoped he would stay away from transgressions. The driving offences had placed a strain on their relationship and on their financial position. The visa cancellation proceedings were also causing strain.
49. She had not decided whether she would remain with the applicant if he were to stay in Australia as she was more concerned with the applicant’s relationship with his son, which is very good at present, and she would prefer that it did not change. His relationship with Karamana is not as close, but there are no major problems. Karamana simply did not see the applicant as a father figure.
50. She had nothing to return to in New Zealand. It had taken Logan about six months to adjust to school here, but now he is doing quite well. The applicant had coached his football team, which had helped to strengthen the bond between them.
51. She is unsure of her own relationship with the applicant at present, but she would nevertheless remain here in any event. The children were her main priority.
52. A letter from Mr Bob Stone of JS & B Plumbing Services Pty Ltd (Exhibit A3) stated that the applicant had commenced employment with their company on 4 September 2006 and had proved to be a reliable, punctual and very willing employee.
53. They are plumbing and roofing subcontractors working in the public school system in Sydney. They are expecting a large volume of work as a result of the federal government’s stimulus package for schools. The applicant has roofing skills that they rely on to complete that type of work and they are very keen for him to return to work as soon as possible.
54. Mr Jason Stone, Mr Bob Stone’s son, at the hearing said he had observed the applicant at work and fully endorsed the statements in Exhibit A3. The company has 15 staff, including office staff. Of those, five are roofers and the remainder plumbers. They had taken on extra staff because of the stimulus package and in order to fill in for the applicant in his absence but the work is hard and workers need to have their wits about them. They had employed and lost three workers in three weeks because they could not adapt to the demands of the position. Those substituting for the applicant are employed on the proviso that they would step down if he returns to work.
55. The company still needs a roofer and the applicant is one of the two best workers in the company. It is hard to find reliable roofers, and they had advertised and used contacts to find suitable staff. Their other leading roofer, a man named Chris, worked well with the applicant and was performing well on his own, but it is very hard work and they did not want to risk exhausting Chris.
56. The company had known about the applicant’s New Zealand criminal record when they employed him.
57. In a written statement dated 9 March 2009 (Exhibit A5) the applicant’s ex-wife, Selena Gorrie, wrote that she had known the applicant for 23 years and had observed his life, actions, attitudes and behaviours had travelled as if on a rollercoaster. He was in and out of jail in New Zealand for rather petty offences caused by his addiction to gambling or marijuana smoking that led to stealing. He was never a good father and was an even worse husband. His family no longer keeps in contact with him and had given up trying to help him years ago. His previous lifestyle had continued during his relationship with Manu.
58. With the birth of Logan, however, maturity and the removal of some of his vices, he had begun to change over the last five years or so. He had become an actively involved father to Logan, trying hard to do the best for him. He was often Logan’s main caregiver and took the role of stepfather to Karamana. That had given him the opportunity of learning how much time and effort goes into being a parent and the rewards of gaining a close bond with a child, something he unfortunately lacked with his other four children.
59. In the last two years he had been faithfully employed with the same company and procured a residence in Kogarah that he furnished and prepared for the arrival of Manu, Logan and Karamana. On Logan’s arrival he once again became involved in football training for the school team.
60. Last year Mrs Gorrie herself had moved to Australia. The applicant and Manu had opened their home to them for the first few days that it took them to find their feet. During that time Kayla and Jordan enjoyed spending time with their father and felt welcomed and part of the family. Considering the applicant’s history, Mrs Gorrie had been incredibly impressed at how well he had done in his new life here. For the first time, she had hoped that he was going to be all right. His attitudes and outlook have changed.
61. He has become more dedicated to Manu, Logan and Karamana and has made a huge effort to become more active in Jordan and Kayla’s lives. He even diligently saved money a couple of months ago to travel to Queensland at the end of last year to visit Kayla and Jordan for a few days. Jordan has since returned to New Zealand and is living with Mrs Gorrie’s mother, but the applicant has continued to keep in contact with Jordan by telephone and their relationship is becoming stronger. The relationship between the applicant and Kayla needs more opportunity to flourish.
62. She believes that his removal from Australia would cause irreversible damage to more than the applicant’s life. He has no ties to New Zealand now, nowhere to go and no future there. His departure would pull apart the tight bond between him and Logan, and the tentative relationship with Kayla would be dropped completely. As she knows Manu has settled in so well here, she doubts that Manu would consider returning to New Zealand for the applicant.
63. She was excited to see the applicant make such a huge effort to get things right with his older children and that he has a great relationship with Logan. His dedication to work needs to be recognised, as he had never been employed in one position for so long. She believes he is finally on the right road to turning his life around and pointing towards a positive future.
64. The applicant also tendered a letter of support from Rachel Benjamin dated 25 March 2009 (Exhibit A6) stating that she had known the applicant for about two years. She came to know the applicant, Manu and Logan, as her youngest son attends school with Logan and takes every opportunity to play with him. She has become friends with Manu and the applicant and has only ever seen him working and supporting his family. She knows of his driving offences and that he has served a custodial sentence for them. She hopes he will be allowed to remain in Australia as he has a beautiful family to look after here. He is a good husband, father and friend. A supportive note from Logan Gorrie was also tendered (Exhibit A7).
Application of the Law and Findings of Fact
65. As was stated above, the first issue for me to decide is whether, pursuant to s 501(6)(a) and s 501(6)(c)(i) and (ii), the applicant passes the character test having regard to his substantial criminal record and his past and present general and criminal conduct. The application of the character test is by reference, first, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321 at paragraph 8 the Full Federal Court said:
…
The concept of “good character” in section 501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is “not of good character” within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry.
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In ReMsumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192, the tribunal said at paragraph 37:
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The character test, therefore, requires an objective consideration of the applicant’s “enduring moral qualities” (Irving 68 FCR 422 at 431). However, this does not require the applicant to meet the highest standards of integrity. The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Goldie 1999 FCA 1277).
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66. On the other hand, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness (Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780 at 781).
67. Secondly, I am required to have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If I decide that the applicant does not pass the character test, I must consider whether to exercise the discretion in s 501(2) to cancel the applicant’s visa. In so doing, I must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.
68. In relation to s 501(6)(c)(ii), the person’s past and present general conduct, paragraph 1.9 of Direction No 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant, to the facts of the particular case where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test. Of relevance in the present case are paragraphs 1.9(a), 1.9(b) and 1.9(c), which direct the decision-maker to consider whether the non-citizen has been involved in activities indicating a contempt or disregard for the law (paragraph 1.9(a)), or has, in connection with any application for the grant of a visa or any kind of government benefit made a false or misleading statement (paragraph 1.9(b)), or has ever made a false or misleading declaration on an approved form about the non-citizen’s character or conduct or both (paragraph 1.9(c)).
69. Paragraph 1.11 of Direction No 21 states that general conduct also includes recent good conduct which may be an indication that the non-citizen’s character may have reformed.
70. By reason of his concurrent sentences of two years and one year at Rotorua District Court on 1 March 2000, he has a substantial criminal record as defined in s 501(7) of the Act. That provision is not limited to sentences imposed by Australian courts.
71. Further, he is not a person of good character having regard to his past and present general and criminal conduct within the meaning of s 501(6) by reason of his total criminal history in New Zealand and Australia.
72. Also relevant in the context of s 501(6)(c) is his making of a false statement on his incoming passenger card (G p28) by stating that he had no criminal convictions. Incoming passenger cards are created pursuant to s 506 of the Act. Criminal convictions in Australia or in a foreign country of the non-citizen are expressly included by s 506(3)(b). Under s 102 of the Act a non-citizen is required to fill in the incoming passenger card in such a way that all questions are answered and no incorrect answers are given.
73. The obligation to comply with s 102 is not removed or affected by the fact that the minister or an officer has access to information from other sources: s 106 of the Act. Giving false information is itself ground for cancelling a non-citizen’s visa: s 109 of the Act. Giving information in connection with an entry or a visa that is to the person's knowledge false or misleading in a material particular is a serious offence carrying a maximum penalty of 10 years' imprisonment or 1,000 penalty units, or both: s 234 of the Act. The applicant’s conduct in relation to the incoming passenger card would in my view be sufficient in itself to cause him to fail the character test pursuant to s 501(6)(c) of the Act: see Re Pulepule and Department of Immigration and Multicultural Affairs [1999] AATA 1018 at [51].
74. It is for the applicant to satisfy the tribunal that he passes the character test once there is a reasonable suspicion that he does not pass it: s 501(2) of the Act.
75. Direction No 21 sets out certain matters to which decision-makers should have regard in determining whether or not a visa applicant or holder is a person of good character and accordingly, whether or not the person passes the character test.
76. Paragraph 2.6 of Direction No 21 provides examples that the government considers to be very serious. They include the production, importation, distribution, trafficking, commercial dealing or selling of illicit drugs, and serious theft, including “while collar” crimes. Breaches of immigration law may also indicate contempt or serious disregard for law: paragraph 1.9(a) of Direction No 21.
77. The applicant’s criminal and general conduct falls within the minister’s view of very serious offences. He fails the character test under s 501(6)(a) or (c), or both.
78. I must therefore consider whether to exercise my discretion under s 501(2) to decide whether or not to cancel the applicant’s visa. In exercising that discretion, the tribunal has regard to Part 2 of Direction No 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
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Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
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79. Paragraph 2.3 sets out the primary considerations:
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In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
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Paragraph 2.4 explains:
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The 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.
…
80. Examples of what the government views as serious offences are set out in paragraph 2.6. This includes, in subparagraph (f), crimes of violence against persons. Paragraph 2.8 requires decision-makers, when exercising this discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.
81. With regard to paragraph 2.5(b), likelihood that the conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.11, general deterrence, “aims to deter other people from committing the same or a similar offence”.
Protection of the Australian Community
82. The first issue to be discussed under this heading is the seriousness and nature of the conduct. It is necessary to apply Direction No 21, which was made pursuant to s 499 of the Act. The direction in paragraph 2.6, which is binding on this tribunal, provides examples of serious offences. They include the offences listed in paragraph 83 of these reasons. The applicant's criminal conduct is very serious. Much weight is to be placed on the effect of his conduct on the community.
83. The applicant has multiple convictions for drug cultivation and possession. Paragraph 2.6(a) of Direction No 21 states that the government considers the production, importation, distribution, trafficking (including possession for this purpose), commercial dealing or selling of illicit drugs to be very serious. Direction No 21 goes on to state:
…
§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;
§…
84. The penalties imposed for the applicant's drug-related convictions, ranging from fines to periodic detention to imprisonment, are indicative of the severity of those convictions (Direction No 21 at paragraph 2.7).
85. The applicant has convictions for theft and burglary and a range of dishonesty offences and has received a similar range of penalties. Paragraph 2.6(l) sates the government considers serious theft very serious. Direction No 21 goes on to state:
…
§such crimes are of concern because of the amounts of money involved and/or the disruption caused to individuals, business and Government; …
…
86. The applicant also has an extensive traffic conviction history, including convictions in New Zealand and Australia. The transcript of his appearance at the Local Court Kogarah, New South Wales on 22 January 2008 shows that Magistrate Clugston stated:
…
The defendant clearly has a history of driving as a disqualified driver in New Zealand and is before the court today with the two offences of driving while disqualified. The offence of driving whilst disqualified is a serious offence because it involves the direct contravention of the court order.
…
87. The tribunal has in the past considered such acts to be very serious: see for example Re Toia and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1142.
88. The extent of the applicant’s criminal record is relevant to an assessment of the seriousness and nature of his conduct (Direction No 21 at paragraph 2.7(a)). In this case, the applicant’s criminal record exacerbates the seriousness of his offending. The applicant has multiple convictions spanning the period between 1989 and 2008, first in New Zealand and then in Australia. His first offence in Australia took place about one year after he first arrived in Australia. The applicant’s criminal convictions present a consistently high degree of severity.
89. The tribunal is also to take into account any relevant matters provided by the applicant as mitigating factors (para 2.8(a)). They should be viewed in the context of the applicant’s entire record (Green v Minister for Immigration and Citizenship [2008] FCA 125 [25]-[26]). The applicant did not advance any mitigating factors.
90. The next issue for the tribunal to consider is the risk of recidivism.
91. The respondent submitted that there is a risk of recidivism. The applicant’s overall criminal history is highly relevant in assessing his risk of recidivism: paragraph 2.10 of Direction No 21.
92. The applicant has a lengthy criminal history in New Zealand from 1989 to 2004 for a range of criminal offences and convictions for minor traffic offences. He also has a number of traffic convictions in Australia from 2007 to 2008 and was only recently released from periodic detention for five counts of various traffic offences.
93. As President Mathews J said, “Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending” (Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56 at [51]).
94. The applicant’s pattern of re-offending is indicative of his unacceptably high risk of recidivism, Mr Johnson said. The threat of imprisonment has not deterred him from repeatedly engaging in criminal activity. In the past, the tribunal has considered that those factors increase the likelihood of recidivism: see for example Re Sam and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003.
95. There is no evidence to suggest that the applicant has taken steps towards rehabilitation: paragraph 2.10(c) of Direction No 21. The fact that the applicant has further convictions for breaching his periodic detention and the fact that he failed to declare his criminal convictions on his incoming passenger card on his entry to Australia on 1 May 2008 indicate a continued general lack of respect for the law. The applicant’s offending behaviour therefore remains unaddressed.
96. Mr Johnson noted that the applicant’s driving offences were serious and referred to the sentencing magistrate’s comments (G p62), in which his Honour said that the offence of driving while disqualified is serious because it involves the direct contravention of a court order. There had been insufficient time to show more solid evidence of rehabilitation and reform. In all, although he had improved his personal life, he could not be said fully to have reformed.
97. At the same time, it appears to me that his expressions of regret and contrition are genuine. His de facto, although she has reservations about her own relationship with the applicant, was convinced that his conduct had been improving and believes he has accepted his responsibilities, even starting a savings plan, something he had never done before. He has not driven since his last conviction and has no intention of ever doing so again.
98. The applicant's ex-wife, Selena Gorrie, who, as appears from her statement itself, cannot be regarded as biased in the applicant’s favour, has seen a substantial change in the applicant in recent times. He has been in steady employment with the same company and established a place for the family to live. She had been “incredibly impressed” at how well he had done and at the huge effort he had made to become more active in his children’s lives.
99. Rachel Benjamin also spoke highly of his responsible attitudes to work and to his family. Mr Bob Stone regarded him as a key employee and was keen to have him return to work.
100. There is no psychiatric or psychological evidence in the present case, but in previous cases the testimony of credible expert witnesses has noted the importance in relation to reducing recidivism risk of the offender having a firm prospect of employment, stable living arrangements and a stable family setting to go to. Those factors are present in this case, although Ms Mikaere appeared to regard him as being on probation, as it were.
101. In light of those circumstances, and given his good work ethic, absence of a drug or alcohol problem and absence of any record of violence, I find that the applicant’s risk of recidivism is quite low.
102. In relation to the protection of the Australian community, the tribunal is also required to consider the question of general deterrence, the likelihood that visa refusal would prevent or inhibit the commission of similar offences by other persons: Direction No 21 paragraph 2.11. The deterrent effect of a particular decision is impossible to prove in advance. The concept can perhaps also be expressed in positive form by saying that if bad behaviour is rewarded, there will be more of it. That is a principle well known to parents, teachers, managers and most other members of the community.
103. Its incorporation in Direction No 21 may be simply a reflection of the need for decision-makers to consider the long-term effects of their decisions, not merely the short-term results. While visa cancellation is not intended as a punishment, paragraph 2.11 of the direction plainly contemplates that the prospect of it will operate to deter similar conduct in much the same way as the threat of punishment does.
104. As Callinan J observed in Al-Kateb v Godwin (2004) 219 CLR 562 at 659, “Deterrence may be an end in itself unrelated to a criminal sanction or a punishment. Deterrence can, for example, be an end of the law of tort”.
105. General deterrence cannot be a decisive, or even a substantial, factor in exercising the discretion, but it is appropriate that it should be given due weight in this case.
106. I therefore find that the primary consideration of community protection weighs against setting aside the decision under review in this case, notwithstanding his progress in rehabilitation.
Expectations of the Australian Community
107. With regard to the second primary consideration, the expectations of the Australian community, paragraph 2.12 of Direction No 21 states in part that:
…
Visa refusal … 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.
…
108. A long-standing principle of international law provides that individuals do not have a right to immigrate, and that general immigration decisions lie in the discretion of the state concerned (I.A. Shearer, Starke’s International Law, 11th ed. Sydney,1994, 314-315; I Brownlie, Principles of International Law, 5th ed. Oxford, 1998, 552). That principle is implicitly confirmed by international human rights treaties. For example, the International Covenant on Civil and Political Rights prohibits only the arbitrary deprivation of a person’s right to enter his or her “own country” (Art. 12.4). Consistently with those principles, it has long been accepted on all sides in Australia that migration must be conducted in a legally regulated manner. There are many reasons for that, including the obvious point, as made by the Swedish economist Johan Norberg, that a welfare state cannot have open borders (“In defence of global liberalism”, Policy, winter 2006, 43, 47). Historical and other reasons have also been advanced: Re Zhou and Minister for Immigration and Citizenship [2007] AATA 1766 at [90] to [99].
109. In Al-Kateb, Hayne J observed that in one of its earliest decisions (Robtelmes v Brenan (1906) 4 CLR 395), the High Court had held that it is an attribute of sovereignty that every nation state is entitled to decide what aliens shall or shall not become members of its community (219 CLR at page 632).
110. Callinan J added that entering aliens are taken to know and accept “as a term of admission” that restraint to the extent necessary to enable deportation to be imposed on them (at p658).
111. At the same time, there is an expectation in the community that migration law will be administered fairly and humanely (Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at [34]). A further limiting factor is that one should attribute to the community knowledge of the whole of the evidence before the tribunal (Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458 at para 7(m)).
112. In my view the community would expect that the visa of a person with such a serious and sustained criminal record and who had attempted to conceal that record on his incoming passenger card should be cancelled. They would be likely to take the view that a non-citizen who, through providing a false statement to immigration authorities in a bid to secure an Australian visa, might seek to take advantage of that false statement, should not be allowed to benefit from that conduct. Had he not misled the authorities about his New Zealand criminal record, he might not have been granted a special category visa in the first place: see s 32(2)(a)(ii) and s 5 of the Act.
113. As New Zealand citizens eligible for special category visas receive a visa at the airport on arrival virtually for the asking, it would be seen as all the more important that they should complete their incoming passenger cards in a manner that is not misleading or deceptive. That expectation would not be lessened by the knowledge that in recent times crime rates among non-citizens in Australia, including New Zealanders, have been higher than those for the Australian-born, reversing the position that applied in earlier times: see Re Tuivuya and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 954 at [57]; cf. Re Toia and Minister for Immigration and Citizenship [2007] AATA 2078 at [63].
114. I therefore find that community expectations weigh in favour of cancelling the applicant’s visa.
The Best Interests of the Child
115. The third primary consideration is the best interests of the child. The tribunal is guided on this question by the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In Wan at paragraph 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa and, second:
“to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration”.
I also note paragraph 2.16 of Direction No 21, which sets out considerations that the decision-maker must take into consideration when considering the best interests of a child including the duration of the relationship between the non-citizen and the child and the length of any separation and reasons for that separation (paragraph 2.16(b)).
116. At the time of the delegate’s decision to cancel the applicant's visa, there was no evidence available to show that there were any children whose best interest might be affected by the decision. Evidence since presented by the applicant shows that he does have children and that he has close relationships with some of them.
117. A child’s best interests are generally served if the child remains with its parents.
118. The applicant has four New Zealand citizen children with his ex-wife, Selena Gorrie, a New Zealand citizen. Two of the sons are over 18, one being in the army and the other in the police force. Jordan, aged 15, lives in New Zealand. Kayla, aged 13, was until recently living in Queensland with her mother, but as Mrs Gorrie’s mother was recently taken sick, the two returned to New Zealand shortly before the hearing. It is thought likely that they will return to Australia once Kayla's grandmother’s condition stabilises.
119. The children whose best interests must be considered as primary considerations, therefore, are likely to be Logan and Kayla, as well as the applicant’s stepson Karamana. None of the three are Australian citizens.
120. Logan’s best interests are likely to be affected if the applicant’s visa is cancelled. The applicant has been closely involved in his son’s upbringing and development and has developed a close bond with him. This is not the common case of an applicant seeking to use as a human shield a child he has to a greater or lesser degree abandoned. Logan will turn 10 next year and is still at an age where he would benefit from his father’s active involvement and might suffer if it were withdrawn.
121. Ms Mikaere has indicated that if the decision under review is affirmed, she will not return to New Zealand because Logan has settled in at school after a period of initial difficulty lasting about six months and prefers to live in Australia. She herself has steady employment in a good position with Macquarie Bank. They are established in their home and she has nothing in New Zealand.
122. In my view Ms Mikaere’s expressed intention to remain is not purely tactical and if the applicant’s visa were cancelled, Logan’s bond with his father would be seriously, if not fatally, disrupted at a crucial time in his life. The applicant is also developing a stronger relationship with his daughter Kayla and her mother would like to see it continue to grow. Although if Kayla and her mother return to Australia they are likely to be living in Queensland and not in immediate contact with the applicant, I think it would be in her best interests if the applicant were to remain in Australia.
123. Karamana’s relationship with the applicant, while positive, is more distant than those he has with his own children and it seems unlikely that Karamana’s interests would suffer if the applicant were returned to New Zealand. Little is known about the circumstances of Jordan in New Zealand, but presumably there would be some countervailing benefit to him if the applicant were repatriated.
124. I find that the best interests of Logan especially, and to a lesser extent Kayla, weigh in favour of not cancelling the applicant’s visa.
Other considerations
125. With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states 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 include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; and any evidence of rehabilitation and any recent good conduct.
126. The applicant has not previously been warned about the possibility of visa cancellation.
127. The applicant’s family in New Zealand include his parents, a sister, two brothers and three children. He has little contact with his two uncles in Australia. Cancellation of the visa might cause some emotional distress to Ms Mikaere, but she has faced and accepted that prospect.
128. His departure might have some impact on his employers, JS & B Plumbing Services Pty Ltd as he is a key employee there and the company has experienced difficulty in finding a replacement for him, even on a temporary basis.
129. Although his claims that he has been rehabilitated have not been put to the test in the wider community for an extended period, there is cogent evidence to suggest that he is reformed. If released he would be returning to a positive set of circumstances from the viewpoint of rehabilitation. He does not have a drug or alcohol problem and has no record of violent offending. The other circumstances thus weigh in favour of not cancelling his visa.
130. The strongest factor, however, is the best interests of his children. Although that primary consideration can be outweighed by the community protection and expectations considerations, in this case I find that it carries decisive weight. The applicant’s strong bonds with Logan, and to a lesser extent, Kayla, are important for their development and are also a major component in his progress towards rehabilitation. I also note that when the decision under review was made, the delegate did not have the benefit of any evidence about the applicant’s children.
131. In my view there is little risk to the community in giving the applicant one last chance to show that he can be a responsible and law-abiding member of society. No doubt the respondent will warn him of the likely adverse consequences for him of any re-offending.
132. The decision under review is set aside.
I certify that the 132 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: ……………[sgd]..........................................................
Adele Veness, Associate
Date of Hearing: 7 April 2008
Date of Decision: 30 April 2009
Solicitor for the Applicant: Self-represented
Solicitor for the Respondent: Mr G Johnson, DLA Phillips Fox
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