Grant and Minister for Immigration and Multicultural and Indigenous Affairs

[2005] AATA 3

CATCHWORDS – IMMIGRATION – visa – cancellation - character test – failure of character test - whether discretion should be exercised to cancel visa – decision set aside.

Migration Act 1958 ss. 31(1), 31(2), 31(3), 499, 501(2), 501(6), 501(7), 501(12), 501G
Migration Regulations 1994 Schedule 2

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
R v Howells [1999] 1 WLR 307; 1 All ER 50 (CA)

DECISION AND REASONS FOR DECISION [2005] AATA 3

ADMINISTRATIVE APPEALS TRIBUNAL     )          
  )          V2004/1195
GENERAL ADMINISTRATIVE DIVISION     )          

Re                JEFFERY ADONIS GLEN GRANT

Applicant

AndMINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal:                   Deputy President S A Forgie
Date:  6 January 2005
Place:  Melbourne

Decision:The Tribunal:

1.sets aside the decision of the respondent dated 6 October 2004; and

2.substitutes a decision that the applicant’s Class BC subclass 100 (as dependent) visa not be cancelled on the basis that he does not pass the character test pursuant to s. 501 of the Migration Act 1958.

S A FORGIE
  Deputy President

REASONS FOR DECISION

The respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (“Minister”), cancelled the Class BC subclass 100 (as dependent) (“visa”) held by the applicant, Mr Jeffery Adonis Glen Grant. He did so on 6 October 2004 after concluding that Mr Jeffery Grant does not pass the character test under s. 501(6) of the Migration Act 1958 (“Act”). I have also decided that Mr Jeffery Grant does not pass the character test but have decided that the discretion inherent in s. 501(2) should be exercised in his favour. Consequently, I have set aside the Minister’s decision and substituted a decision that Mr Jeffery Grant’s visa not be cancelled on the basis that he has failed the character test pursuant to s. 501 of the Act.

1. At the hearing, Mr Jeffery Grant was represented by Mr Hurley of counsel and the Minister was represented by his solicitor, Mr Brereton. I had regard to the G documents lodged pursuant to s. 501G of the Act (“G documents”) as well as to written statements by Mr Jeffery Grant, his parents (Mrs Jacqueline Grant and Mr Dalton Grant), his brothers (Mr Roderick Grant, Mr Dalton Grant Jnr, Mr Roger Grant and Mr Max Grant), his girlfriend (Ms Zoe Morrell), Mrs Grant’s fiancée (Mr Andrew Crome), his uncle (Mr Lincoln Edwards) and Pastor Kent. Reports of Mr Jeffrey Cummins, psychologist, dated 2 October 2002 and 15 December 2004 and of Dr Lester Walton, consultant psychiatrist, dated 15 December 2004 were also admitted. Mr Jeffery Grant gave evidence in support of his case together with his parents, his brothers, his uncle and his girlfriend. Specialist evidence was given by Dr Walton and Mr Cummins.

ISSUES

1. As Mr Jeffery Grant does not pass the character test set out in s. 501(6) of the Act because he has a substantial criminal record, the only issue in this case is issue is whether the discretion in s. 501(2) should be exercised to cancel his visa.

BACKGROUND

1. In this section of my reasons, I set out the findings I have made regarding the facts forming the background to the issue that I must decide.  I have made those findings based on the evidence to which I have referred above and in light of the lack of controversy between the parties about them.

1. I find that Mr Jeffery Grant was born in Jamaica on 10 March 1984.   He is the middle brother of five brothers who were born between 1979 and 1986 in Jamaica to his parents.  His parents are committed Christians and his mother attends church regularly.

1. In 1986 when Mr Jeffery Grant was two years of age, his father decided to migrate to Australia to improve his family’s finances and their prospects.  Mr Grant senior has worked hard at a variety of positions and has risen to be the Victorian Branch Manager of the CFS Group with responsibility for some 100 contractors and telemarketers.  Mr Grant senior was in contact with his family at least once a month.  On two occasions, he returned to Jamaica for periods up to six weeks.  In 1994, he returned from such a visit with his two eldest sons, Roderick and Dalton Jnr.  Mr Jeffery Grant was then approximately ten years of age and was placed in the role of the eldest brother of the three remaining in Jamaica.  Mr Jeffery Grant longed for the family to join his father and brothers.  While he waited, he continued his education and obtained a scholarship to attend high school.  Mrs Grant travelled to Australia with her three younger children on 1 April 1998.

1. In the years that he had been in Australia without his family, Mr Grant senior had fathered two more children; a boy, Matthew, who is now 15 years of age and a girl, Rachael, Raquel or Rockel, who is approximately 14 years of age.  He told Mrs Grant of his two additional children in 1995 or 1996.  His two eldest sons also knew of the other children.  His remaining sons in Jamaica did not know until after their arrival in Australia.  Mr Grant senior informed them at a family conference held three or four weeks after his wife and remaining children had joined him.  The family remained together but Mr Grant senior and his wife separated.  The date and even the year of their separation is unclear.  According to Mr Grant senior’s evidence, it was early in 2001 and that was also Mrs Grant’s evidence.  Mr Jeffery Grant said that it was 1999.  Given Mr Grant senior’s evidence regarding the efforts he and Mr Jeffery Grant’s mother made regarding their middle son’s attendance at school, I find that they separated some time before 2001.

1. Mr Jeffery Grant attended Brighton Secondary College as did his four full brothers.  All but Mr Jeffery Grant completed their VCE at that school.  He was suspended in 1999 when he was in Year 9 and after it was alleged that he had set fire to a rubbish bin.  Mr Jeffery Grant denies that the allegation has any truth.  He then attended Bentleigh Secondary College but was expelled from that institution in approximately 2000.  Mr Jeffery Grant’s explanation for his expulsion is that he was “… not doing too good in Year 11” and the school thought that he was not attending often enough to be there.  He did not complete Year 11.

1. Between 1999 and 2001, Mr Jeffery Grant worked in a casual position as a waiter/kitchen hand at the Yeah Maan Restaurant (“restaurant”).  That restaurant is owned by Mrs Grant and Mr Roderick Grant.  He has been apprenticed at the restaurant and has been under Mrs Grant’s supervision. Mrs Grant works at the restaurant as a chef on some evenings during the week.  In all, the restaurant employs four of the Grant siblings. 

1. Apart from Mr Jeffery Grant, I find on the evidence I have been given that no other member of the Grant family has been convicted of committing an offence.  Mr Roderick Grant works for a finance company as well as at the restaurant.  Mrs Grant works as a nurse at an aged care facility during the day.  She is marrying Mr Crome in February 2005.  Mr Dalton Grant Jnr was a dancer with the Australian Opera Company and overseas but is now a representative for Lexus Motor Vehicles.  Mr Max Grant is a sales assistant at a clothing shop.  Mr Roger Dalton is looking for work. 

1. Mr Jeffery Grant has an eighteen year old girlfriend, Ms Zoe Morrell.  Except for a short period of separation during the period he was committing his offences, Ms Morrell has had a relationship with Mr Jeffery Grant for the past five years.  Ms Morrell is studying for a Bachelor of Arts degree in Criminal Justice Administration at the RMIT University at Bundoora.  She also has a part time job at the Albert Park College in office administration. 

1. I find that, on 18 December 2002, Mr Jeffery Grant was convicted of one count of armed robbery, 19 further counts of armed robbery, one count of attempted armed robbery and the theft of a motor vehicle.  Those offences were committed between September 2001 and February 2002.  The maximum sentence that could have been imposed was 25 years for armed robbery, 20 years for attempted armed robbery and 10 years for stealing.  He was sentenced to a total of six years and two months’ imprisonment with a non-parole period of three years.  That was made up of three years’ imprisonment on the first count of armed robbery and a further three years on each of the remaining 19 counts.  Two years and ten months of each of the nineteen three year terms were to be concurrent i.e. three years and two months were not to be served concurrently.  An additional term of one year’s imprisonment was imposed for the convictions of attempted armed robbery and the theft of the motor vehicle and they were served concurrently with the other terms.  The period of 306 days that Mr Jeffery Grant had served by way of pre-sentence detention was declared to be a period of his sentence already served.  Mr Jeffery Grant’s driver’s licence was disqualified from driving for four years. 

1. Mr Jeffery Grant has completed a number of courses and programmes since being imprisoned (G documents, G6):

   Drug education at Port Phillip Prison comprising sessions on what is a drug and the drug triangle; alcohol education and values and beliefs; cannabis and other drug education; and harm reduction.  He displayed adequate understanding of the topics and partook in the course’s activities and discussions regarding the risks associated with drug use.  The course, completed on 10 May 2002, comprised four sessions each of two hours and a further four hours of homework.

   Relapse Prevention at Port Phillip Prison comprising sessions on belief, self talk and self esteem; conditioning, relapse and lapse; motivation and goal setting and affirmations.  He displayed adequate understanding of the topics and partook in the course’s activities and discussions regarding the risks associated with drug use.  The course, completed on 7 June 2002, comprised four sessions each of two hours and a further four hours of homework.

   Certificate in basic welding at Port Phillip Prison.  Mr Jeffery Grant was graded as competent in occupational health and safety on 14 May 2002.

   Alcoholics Anonymous at Port Phillip Prison.  Mr Jeffery Grant maintained ongoing participation in the programme and the certificate was granted on 3 December 2002.

   Anger management at Port Phillip Prison comprising modules on understanding emotions and emotional traps; situations, people and issues creating anger; strategies to improve the way we deal with anger; and completion of a personal anger plan.  The course, completed on 10 December 2002, comprised a 12 hour programme of 10 hours of group work and 2 hours of out of class work.

   Relationships Program at Dhurringile Prison comprising conflict resolution, healthy relationships, self-esteem and assertiveness training.  Mr Jeffery Grant was granted a certificate on 4 March 2004.

   Short Course Food Handlers – Level 1 at Fulham Correctional Centre.  Mr Jeffery Grant was graded as competent in following work place hygiene procedures and a certificate granted by the Gippsland Institute of TAFE on 23 June 2004.

1. Since being at Fulham Correctional Centre, Mr Jeffery Grant has been assessed as suitable to attend the Cognitive Skills Program.  He has also been advised by the local Review and Assessment Committee on two occasions in relation to participating in the Intensive Drug Treatment Program and four Relapse Prevention Programs.  None had been actioned as at 14 December 2004.  There have been no incidents at that centre.  A note from an officer of the GEO Group Australia Pty Ltd that has responsibility for the Fulham Correctional Centre stated that Mr Jeffery Grant is employed as a Unit Billet and receives good work reports from the supervising staff (Exhibit C).

1. If his visa is restored to him, Mr Jeffery Grant has been informed by the Parole Board that he will be released on parole on 27 January 2005.  His parole period will be three years and two months expiring in 2008.

THE EVIDENCE

Life in Jamaica

1. Mr Jeffery Grant said that he communicated with his father over the telephone and by letters once his father began living in Australia.  He regarded himself as close to his father even though he did not see him often and thought often of the day when the family would be reunited.  His mother confirmed that was so.

Life in Australia before the offences

1. Mr Jeffery Grant said that he was shocked when his father told him of his two youngest children.  He had thought that his father would have told him about them when he was in Jamaica.  Had his father done that, he said, he would have known what to expect on his arrival in Australia.  His parents stayed together for approximately a year and separated in 1999.  That year was a very difficult year because everyone had wanted the family to be together and they were not seeing their father as often as they had thought they would.  His father moved out to live in another house and it was as if he was living in Jamaica again without his father.  Mr Jeffery Grant said that he began to wake up during the night after suffering from nightmares. 

1. Mr Jeffery Grant admits that he did play truant from Brighton High School.  He did so because he could not focus and could not concentrate as well as being late for class.  At Bentleigh Secondary College, he studied Year 11 in 2000 or 2001.  He continued to attend church although not as regularly as he had in Jamaica.  Even though his mother organised counselling for him at school, he did not make the effort to attend.  When he was expelled and the matter was discussed with his family, Mr Jeffery Grant decided to start a career in hospitality.  He also admits that he did not take up the counselling his mother offered through her church. 

1. Mr Jeffery Grant said that he started using drugs when he started to go out with other people.  He thought that those people were his friends.  Whenever he was out of the house, he would not think about what had happened at home.  Those people, who were twice his age, were a bad influence on him.  They used drugs and had no plans for the future.  His mother had told him to choose his friends carefully but he had been stubborn and stupid and had not listened to her.  He started to find himself in debt but was too embarrassed to ask his father for assistance. 

1. Mr Grant senior said that all of children were very upset when he told them about their half brother and sister.  His wife was devastated.  Even though all of his children had wanted to come to Australia, he thought that Jeffery had placed more store on his coming than had the others.  Mr Grant senior said that Jeffery could not sleep at night after he had told him the news.  His son suffered from nightmares.  His wife had been open to their working things through as that accorded with their views that marriage was for life. 

1. Mr Grant senior said that his son, Jeffery was neither functioning nor cooperating at school.  Mr Grant senior still regards Mrs Grant as his best friend.  Throughout the period after he left the family home, she would telephone him and he would go to her to talk through it.  Together, Mr Grant senior said, they tried to get Jeffery to see a counsellor.  Jeffery’s problems at school worsened after he had left, his father said.  He became rebellious and would not communicate with his father as he had previously done.  He would not cooperate with him as Mr Grant senior felt that he should.  His son was angry and hurt and disappointed in him, Mr Grant senior felt.

1. Mrs Grant said that she attempted to arrange counselling sessions for her son when he told her that he was having trouble sleeping and having nightmares.  He had become a “bit difficult to manage” when he had found out what was happening between his parents.  In her earlier letter to the Department of Immigration and Multicultural and Indigenous Affairs (“Department”), she said that she had felt that:

   “… it was very unfair that he was refused bail considering his age at the time (17) he was young and foolish and I did not know how to handle the emotional stress and peer pressure he was going through.  I know what he did was wrong and I am not proud of this fact as a mother, I sincerely wish that I could reverse things but I can’t so I will do all that I can to ensure that Jeff does not get into trouble again.” (G documents, G10 at 1-2)

1. Mr Dalton Grant Jnr said that he had known of his father’s additional children before he came to Australia in 1994.  He was prepared for it when he arrived.  Their brother, Jeffery, never really talked to him or to his brother, Roderick, about it.  As the middle child, Mr Dalton Grant Jnr thought that Jeffery felt that he was alone.  It took a long time for his brother to adapt to a new country and the fact that the family would not be together again.  Mr Dalton Grant Jnr knew nothing about his brother’s robberies.  Jeffery did not tell him about the money he owed or the problems he was experiencing.  He felt that his brother would have been embarrassed and totally disgusted with himself.  That would have been why he did not tell his family about his problems.   

1. Ms Morrell said that she knew nothing of the robberies but wrote:

   “At the time of his offences Jeffery was going through difficult family problems.  His parents had separated, however his best friend and I, his girlfriend, were unaware of the situation, as Jeffery did not tell anyone.  He was not able to express himself emotionally and only lashed out on people that tried to care for him.  He did not know how to deal with the hurt he felt over his parents break-up.  He was clearly effected by it, but because he was unable to express any hurt or anger, he started taking drugs and became reckless in his decision-making.  He had previously been a quiet and sensitive individual, but in the period before he was arrested he was uncaring, irresponsible, and blocked any attempts made to help him.” (G documents, G16 at 44-43)

2. In her oral evidence, Ms Morrell said that Jeffery had become more distant and more involved with his friends in the period before his arrest.  She felt that she did not know him anymore.  After they had been going together about eighteen months and in about June 2001, they separated.  They were separated for about two months.  Towards the end of 2001, they started talking again but were not going out together at that time.  They got together again after he had been arrested.

1. Ms Morrell further explained that she had met some of the friends but had not been fully aware of what they were involved with.  A lot of them were not nice people.  One of the reasons they separated for a bit was that she did not like the friends he was associating with.  When they were together, Mr Jeffery Grant was not spending a lot.  She always paid her way and he never splashed out. 

The offences

1. Judge Davey summarised the circumstances of the offences in the following way:

   “… These offences all took place in the south eastern suburbs of Melbourne, that is the Bentleigh, Glenhuntly, Oakleigh, North Brighton area.  Three of the victims were robbed twice.  You used a variety of weapons, an imitation pistol on some six occasions, a machete on some six occasions, a knife on eight occasions, and according to one witness a sword on another occasion.  The vehicle that you stole was used by you on a subsequent robbery on the same night, and on another occasion you borrowed a friend’s car, it appears, for that purpose.

   Your targets were what you euphemistically referred to as soft targets, convenience stores such as 7-11 which you either attacked late at night or early in the morning.  There would only be one attendant looking after the store.  Over the period of these robberies, which commenced in September 2001 and concluded in February 2002 when you were arrested by the police, you had staked out a convenience store in Hampton.  You engaged in a one man crime spree.  The eight victim impact statements which were produced by the Crown in their opening testified to the terror you inflicted upon the store attendant when confronted by a masked bandit brandishing a gun, or a knife, or a machete and demanding money.  A number of them are now unable either to work at all, or at least could not continue in their position as a late night store attendant.

   It is estimated that you obtained cash and property to the value of $12,600 over the period.  …  Looking at the dates of the offences as set out in the presentment, it would appear on some occasions that you were committing up to three armed robberies on a night.  Normally you would have one night a week when you would go out and commit armed robberies.

   Breaking the armed robberies down into months, you committed four armed robberies in September, two in October, five in November, four in December, and one in January.  You committed five in February including the occasion when you were apprehended.  In the outline of the Crown case, brief descriptions are set out of your modus operandi.  On most occasions you either wore a balaclava over your head, or on some occasions a bandana over your face or a grey hood.  On many of these occasions, you put the shop attendants in fear of their lives when you demanded money from them late at night or in the early hours of the morning.  On 22 November 2001 you stole a Holden Commodore station wagon from the driveway of the owner’s home in Murrumbeena and you used that vehicle for an armed robbery committed that night.

   In relation to the count of attempted armed robbery at a 7-11 store in Warrigal Road, count 21, on that occasion apparently nothing was stolen.  The victim, who is also the victim in counts 8 and 16, saw you coming and ran from the shop and hid in a rear office. …” (G documents, G5 at 43-45)

The reasons for committing the offences

1. One of the drug dealers, Mr Jeffery Grant said, had suggested to him that he undertake some armed robberies.  Of his behaviour, he said that it was “terrible” and that he “… beat[s] himself about it every day …”.  There was no reason to put his family, himself and his victims through it.  He thinks about what he has done every day.  He did not consider that he has a gambling problem.  Rather, the people he was with would go to the Crown Casino and he would gamble with them.  At the time, he was 16 years of age.  At times, Crown Casino would not admit him.  When he was caught committing his last offence, he had planned that to be his last. 

2. In his sentencing remarks, Judge Davey also recorded that Mr Jeffery Grant had told the police that he had spent the $12,600 “… mainly on going out to nightclubs and buying drinks, although you spent a small amount buying cannabis.” (G documents, G5 at 44)  His Honour also noted that Mr Jeffery Grant had told Dr Walton a different use of the money.  Dr Walton had recorded in his report dated 5 December 2002:

   “… Due to his various indulgences in drugs, entertainment, and gambling, Mr Grant found himself in a situation of mounting debt, in particular, debt owed to his drug dealer and that resulted in threats being directed at Mr Grant’s family.  No doubt he was somewhat addled by his ongoing drug abuse at this time.  It was in this context that he engaged in his foolhardy series of robberies.” (Exhibit A, Exhibit LAW-1 at 3)

Dr Walton also noted that Mr Jeffery Grant had told him: “I feel pretty bad.  At the time I wasn’t thinking” and “I feel pretty bad.  Gaol is not a place I want to be.  I realise now all the people I’ve hurt.” (Exhibit A, Exhibit LAW-1 at 1 and 2).

1. Mr Jeffery Grant explained any apparent inconsistency in the motives he had told the police and Dr Walton.  He said in cross examination that he had not told the police that the drug dealer had threatened his family if he did not pay him.  Had he told the police of that, he feared that the drug dealers would have gone back to the family.  It would have been worse for the family.  When asked if he thought that the drug dealers would have hurt his family when they were not paid, Mr Jeffery Grant said that they would know that he had been arrested and they would then not hurt them.  In response to a question whether his former friends would chase him for the remaining $150 he owed them, he thought that they knew what he went through to get the money back.  He had not had any contact with them.

1. He had spent some of the money he obtained in the armed robberies on drugs as well as some on entertainment and gambling.  In the last three months, though, he had not gambled much.  He stopped going out with friends because they were threatening his family and just wanted him to take drugs.  At times, he had gone out with them socially even though they had threatened his family.  Mr Jeffery Grant agreed that he was easily led.  No-one forced him to commit the robberies as he was on his own at the time.  He agreed that his crimes would have been very terrifying for his victims.  At the time he committed them, he agreed in cross examination, that his conduct was affected by drugs because he had been upset by what happened in the family. 

2. Dr Walton was of the view that Mr Jeffery Grant did not have an antisocial personality disorder although he noted that he had an established history of illicit drug abuse and there was a pattern of truancy.  Even though he might have been prone to relatively brief episodes of drug-induced psychosis associated with taking amphetamines, there was no evidence of enduring psychotic illness.  Dr Walton could not make a diagnosis of a depressive disorder although he had periods of depressed mood as a result of drug use and his then predicament.  He did consider that Mr Jeffery Grant would qualify for a diagnosis of an adjustment disorder.  The central maladjustment had been in relation to his not coping with relocation to Australia and his father’s alternative relationship.  Mr Jeffery Grant’s reaction had been more extreme than most and was perhaps indicative of an underlying personality vulnerability.  For all that, it is well recognised, Dr Walton said, that simply migrating is a significant psychosocial stressor even when not complicated by additional factors.

1. In his oral evidence, Dr Walton said that the fact that the long anticipated family reunion had not taken place as Mr Jeffery Grant had hoped and the fact of his parents’ separation led to his drifting into drug abuse.  That drug abuse was not just part or a piece of a long standing pattern of criminality.  Instead, it reflected his emotional turmoil at the time.  Of Mr Jeffery Grant’s pattern of offending, Dr Walton said that it was “striking”.  There was no graduated history of offending as is normal.  Instead, Mr Jeffery Grant committed a large number of armed robberies out of the blue and there are factors that contributed to it.  His history is in strong contrast to that of most young male offenders.  Ultimately, Dr Walton said, he could not explain the pattern of offending.  Migrating from a foreign country is material in itself.  Mr Jeffery Grant’s siblings had similar experiences although the two older siblings did not have the same experiences as he did.  Objectively, his experiences were a major challenge for a young person.

1. In cross-examination, Dr Walton said that he could neither rule in nor rule out that Mr Jeffery Grant had a pathological gambling habit.  He was certainly gambling a lot but had a relatively brief history of it.  At the time, he was “pretty young” and at an age before a normal gambling addiction would have taken hold.  Although Mr Jeffery Grant was approaching a pathological gambling habit at the time of his offences, Dr Walton doubted that the habit was fully established at that point. 

2. Mr Cummins wrote in his report dated 2 October 2002 of his assessment of Mr Jeffrey Grant the day before.  He recorded Mr Jeffery Grant’s reasons for committing the offences:

   “I asked him why he committed these offences and he said – ‘I was just feeling overwhelmed about my parents having separated – dad having left mum – I was missing dad and I was feeling the whole family had broken down and then I started using dope, alcohol, Speed and E’s – I was only earning about $50-60 per week at the restaurant – mum had some idea I might have been using drugs because I was so skinny – I’ve now put on about 8 kilos and I’m going to the gym and I’m starting to build myself up – I just started using all the drugs to try to cope with how I was feeling and then I got these drug debts at some of the nightclubs … and these people started threatening me and they started threatening my family and I thought oh well I have to get some money to repay these drug debts and some of these people who I got the drugs from tole me it was easy to do an armed robbery and that’s what I did.’  I asked him whether at the time of offending he gave any consideration to the seriousness of his offending and/or to the likely consequences for him if he were apprehended and/or to the likely reactions of the victims and he then said – ‘well I knew what I was doing was wrong but perhaps I didn’t know it was so wrong – I guess I was just so focused on repaying the drug debts.’

   I asked him whether there was anything else he wanted to state about his offending and he then assertively stated – ‘well I guess the only thing I really want is for my folks to get back together – but I don’t think that will ever happen – and I just want to get out of here and get on with my life – I’m determined to never use drugs again.’” (Exhibit N, Exhibit JEC-1 at 3-4)

In his oral evidence, Mr Cummins said that Mr Jeffery Grant’s explanation for his extreme offending behaviour was plausible. 

1. Mr Cummins concluded at that time that Mr Jeffery Grant did not have a personality disorder generally or an Anti-social Personality Disorder in particular.  He found that Mr Jeffery Grant was, though, somewhat immature and naïve as well as moderately agitated and mildly depressed.  Mr Jeffery Grant did not present as being paranoid.  Mr Cummins concluded that he was experiencing an adolescent adjustment reaction at the time of offending.  That disorder was developed in response to his difficulties in accepting and coping with his parents’ unexpected separation.  In October 2002, he had still not made an adequate psychological adjustment to his parents’ separation.  Mr Jeffery Grant, Mr Cummins noted, spoke in a very responsible and respectful manner regarding his parents and considered that he was capable of rehabilitation.

1. In his second report prepared some two years later on 15 December 2004, Mr Cummins recorded that Mr Jeffery Grant had told him that “‘… Back then I was 15, 16 and 17 and when I committed the armed robberies I took everything out against him.  I was so angry then.  I’ve just learnt so much about myself since being in jail.’” (Exhibit O, Exhibit JEC-2 at 3)  Mr Cummins did not find it surprising that he had not told the police of his wider problems. 

Rationale of Judge Davey’s sentence

1. Judge Davey observed that he could not use Mr Jeffery Grant’s possible deportation as a factor that might mitigate the sentence.  What he did take into account were the following:

   “         It is clear that you are a youthful offender and the normal principles as to youthful offenders must apply to you.  However, when the offences, as I believe, are extremely serious, the principles in relation to giving priority to rehabilitation and reformation for a young offender may become less important than those of a general deterrence.  However, in sentencing you I have taken into account the principles in relation sentencing of youthful offenders as set out in the case of Mills 1998 4 Victorian Reports 235 at 241 where it stated that in the case of a youthful offender, rehabilitation is usually more important than general deterrence.  That principle, as I have noted, must be tempered by the circumstances of the offending.

   However, I think that the principle may well support a shorter than normal period before you are eligible for parole and indeed that is consistent with the plea made on your behalf.  Although the offences are all separate and unrelated offences, the principle of totality means there will need to be substantial concurrency in respect to the sentences in order to confine the head sentence within reasonable limits.  I should observe that although you are still young enough to be sentenced to detention in a youth training centre, it is in my view unsuitable, because the maximum term of such a sentence would not be sufficient to reflect the criminality of your conduct and further, I would be unable to set a time for you to be eligible for parole.” (G documents, at 47-48)

Mr Jeffery Grant’s activities and outlook since being imprisoned

1. Mr Jeffery Grant said that he had made pool tables at Loddon Prison and has undertaken all tasks asked of him.  He said that he took a time to settle into each of the prisons.  At Loddon Prison, he also worked in the laundry and, at Dhurringile Prison, he worked in the kitchen and then became head cook.  Since his incarceration, he has become a lot bigger and healthier as he is eating properly and exercising. 

1. He has had periods of leave from prison ranging from a few hours of supervised leave to a 24 hour unescorted pass.  As the periods became longer and more frequent, Mr Jeffery Grant said that the time he was serving seemed to become slower.  He was always thinking about his leave that was to come.  His last and only 24 hour leave was spent with his girlfriend and his family.  He found leaving them all very hard to do but he made sure that he was back at the Dhurringhile Prison on time.  In his letter of 22 November 2004, he wrote:

   “The next day I was working in the kitchen and a person that I worked with had Amphetamines (speed) and he offered me some I had a soft drink in my hand at the time and I put a little in my drink and drank it, it did not affect me and it did not make me feel any better.  I am very disappointed in myself for having it because the whole time I have been in prison I have never ounce used any form of drugs, different people have offered it to me but I always refuse it.  Since my incarceration I have been tested for drugs quite often sometimes twice a week and they’ve all been negative.  I don’t have a drug problem, which I want to continue on my release.  Upon my release from prison I will continue to do programs and what ever it takes to maintain a drug free healthy lifestyle.” (Exhibit B, Exhibit JG-1 at 5)

2. Mr Jeffery Grant said in cross-examination that he underwent a drug test two days after he had taken the amphetamine and tested positive for it.  He said that he had no good reason for accepting the drug.  He should not have done it.  After staying for the night with his family, he had been feeling a bit down.  That was no excuse, though.

1. In cross-examination, Mr Jeffery Grant said that he did not think that he would succumb to drug taking again if he were upset or depressed.  He will be able to call on his family for support as well as his girlfriend. 

1. As for his past offending behaviour, Mr Jeffery Grant said in that letter that he sees it in this way:

   “Although I know that won’t make up for what I put them [the victims] through.  I am happy I got caught for what I have done and I have accepted my punishment because I deserve to be punished.

   At the time of committing my offences I was 17 years old, before these crimes I have never been in trouble with the law I was young, naïve, and easily led however my term of imprisonment has given me the sufficient time to reflect on my attitude towards society and to gain respect for others in the community.  My actions at the time of committing the crimes was that of a young juvenile and over the time of my Prison sentence I have witnessed other prisoners the way they live and continually ruining there lives by reo fending and returning to jail.  I have worked hard in jail on my past failings.

   …

   Since I have been in prison I have grown up quite a lot I’m a lot smarter with choices I make, this is not the lifestyle I want to live and I know that I will never ever commit another crime, even though I have wasted 3 years of my life I am still young and I still want to make something of my life I want to have a future I want to work hard and make a honest living I want to give back to the community what I have taken out of it.” (Exhibit B, Exhibit JG-1, at 4-6)

2. Of his parents’ situation, Mr Jeffery Grant said that he had accepted that they were not going to stay together just because their sons wanted them to.  His mother’s engagement to Mr Crome had initially bothered him and he did not want a stepfather but he has now accepted Mr Crome as part of his family.  He has hurt his mother very badly and he wants to make her proud.  As he is still young, he needs his parents’ guidance and he wants to be there for them as they have been there for him.  His relationship with his father is a lot stronger and better than it has been.  Mr Jeffery Grant feels that he is now a lot more open with his father and believes in him as he did when he lived in Jamaica.  When he arrived in Australia, he blocked him out a little because he was angry and disappointed in his father for not trying harder to make his relationship with his mother work and for not telling him about his half siblings.  He feels guilty for making his father feel that he has not been a father to him.  Of his siblings, Mr Jeffery Grant said that he felt that he had a special bond with them.  He is getting to know Mathew and Rockel, who live with their mothers.  Since his incarceration, his relationship with his two older brothers has improved and it is now very open. 

1. Mr Jeffery Grant said that he was on a list to undergo a gambling course when he was at Loddon Prison but he was moved to Dhurringhile Prison before he could participate in it.  He did not think that gambling is a problem.

Mr Jeffery Grant’s girlfriend

1. Mr Jeffery Grant said that he met his girlfriend, Ms Zoe Morrell, in 1999 through a mutual friend.  As they were both very young, it was not serious at the time but they fell in love.  In the months leading up to his arrest, he would say that everything was fine even though she could see that something was wrong and would ask him what it was.  He did not want her to know about the crimes he was committing or that he was in debt.  Mr Jeffery Grant said that he wishes that he had spoken to his girlfriend.

1. Mr Jeffery Grant said that he and Ms Morrell speak of getting married and having a future together.  She visits him whenever she can.  After she obtained her driver’s licence, Ms Morrell visited him every fortnight but, in the past six months, she has visited every week.  Mr Jeffery Grant said that she had told him that she could not live without him were he to be removed from Australia.  She would leave behind a brother, two sisters, two uncles, one aunt, both parents and two cousins.  Ms Morrell is Mr Jeffery Grant’s first girlfriend.  He said that he loves her very much.  He had told Mr Cummins of dating a Japanese exchange student at school.

1. Ms Morrell wrote in her undated letter to the Department that Jeffery had been her closest friend and supported her emotionally through some very difficult times.  That had occurred even when he had been imprisoned.  If he were not allowed to remain in Australia, she would be devastated.  She would find it harder to support his reintegration into society.  As for their recent experience, she wrote:

   “For the term of his imprisonment I have visited him, and written to him as often as possible, in order for him to have emotional support, and strength to come out of the correctional process positively, as a stronger, more responsible individual.  When he gets released I will be there for him to rely on as someone who has experienced with him, the last three years of his life.  My aim is to be there to help him out whether through emotional support during his reintegration into society and beyond, trying to slowly get him use to once again being around people and places, or simply driving him to work.  I see the best assistance I can offer him is, that he knows that like his family, I am going to be there to constantly support and help him.” (G documents, G16 at 44)

1. Mrs Grant recalled her son and Ms Morrell breaking up a short time before he committed the offences.

The future

1. If he were to be removed from Australia permanently, Mr Jeffery Grant said, he and his siblings would be very hurt.  His siblings would find it very hard to move on with their lives and he would not be able to go on without them.   In Jamaica, he has a couple of cousins but he has not seen them for years. 

1. If he were permitted to remain in Australia, he will live with his mother and his two younger brothers.  He is “pretty close” to Mr Crome.  At the restaurant, he would continue his apprenticeship.  That apprenticeship was started with a private firm, MAS International, and he does not attend a TAFE. 

1. When it was suggested to him that his past behaviour was a guide to his future behaviour, Mr Jeffery Grant said that he would turn for help.  He has given up a lot for what he did.  Previously, he did not think about his actions but now he has his family.  He admitted that he could have done that in the past. 

1. Mrs Grant said that she felt that her son had learned that counselling was very important.  Should things start going wrong, she was sure that she could get help for him and that he would accept it.  She would be aware of the signs of trouble.  Previously, she had not seen drugs.  Although she had seen the signs of her son’s taking drugs, she had not known what they were.  She did not think that her son would be able to keep things such as the robberies from her because this time she will be looking.  She had seen him coming home later and not eating but she had never thought he was committing robberies.  He was always asking her for money and she would give it to him every day for the bus or train and for food.  She bought his shoes and his clothes as he never had any money.  Things are different now as the restaurant is doing a lot better.  Her son will be employed there for six days each week.  This time, she will have the help of Mr Crome, who has some understanding of drugs.

1. When asked whether Mr Jeffery Grant would be at a higher risk of falling into pathological gambling if he were in a situation of stress, Dr Walton replied that he had engaged in a range of antisocial behaviour when faced with a situation of stress.  Gambling had been one of that range.  Mr Jeffery Grant has been in a process of maturation.  Dr Walton would expect the risk to be minimal although he could not say that authoritatively.  Having engaged in the behaviour in his youth, there would be a risk if Mr Jeffery Grant faced stressful circumstances.  If he were released back to his supportive family and he had a job waiting for him, Mr Jeffery Grant’s likelihood of re-assimilating into normal society were that much more enhanced.  Provided he finds himself in circumstances other than those that are very stressful and provided that he can refrain from further drug abuse, Mr Jeffery Grant should be able to apply himself successfully to work.  When Dr Walton saw him, Mr Jeffery Grant was drug free and expressing strong motivation to work and to gain qualifications.  When asked whether Mr Jeffery Grant had to avoid stressful circumstances, Dr Walton replied that this applied to anyone.  Anyone in stressful circumstances finds it difficult to sustain work.

1. In his report written before the sentencing, Dr Walton wrote that:

   “… this young man would seem to represent somewhat of a sentencing dilemma.  On the one hand, he is presented as a cleanskin but, on the other hand, he has engaged in a series of quite serious offending relatively uncommonly encountered in one of his age and especially with an absence of prior offences.  No doubt general deterrence would usually loom large in a case such as this, and I could not state that Mr. Grant I afflicted by a major mental disorder which would automatically raise Anderson/Tsiaras considerations, but it is certainly my view that this young man was far from being in a state of mental equilibrium at the material times and, perhaps, those factors may be seen as having at least some relevance.  Mr Grant certainly impresses as making every effort towards reforming himself and there would seem to be no obvious reason why he may not be able to follow through with his current positive aspirations.  He is fortunate that, once released, he will be able to immediately return to employment in the family restaurant and resume his hospitality training.  It is clear that he enjoys considerable family support and also his girlfriend has stuck by him.  In my view the mere threat of incarceration should carry sufficient specific deterrent impact.

   … I would urge that some consideration be given to this rather psychologically immature young man placed in youth rather than adult custody, where rehabilitative options are more freely available.” (Exhibit A, Exhibit LAW-1 at 4)

1. In his second report, Mr Cummins said that:

   “It is my opinion Mr. Grant has continued to mature in a very satisfactory manner whilst in custody.  This process of maturation has continued in spite of the fact he has received no psychiatric or psychological treatment.  He has, however, participated in a number of educational programs and he states he has benefited from participation in these programs.

   …

   … it is my opinion he would be regarded as having been close to a model prisoner.  He has had one dirty urine after which he was shifted from Dhurringile Prison to Fulham Correctional Centre.  At Fulham Correctional Centre he has continued to maintain a drug-free state.  Significantly, he used amphetamine under circumstances where he was feeling emotionally overwhelmed and distraught following a 24 hour prison release, during which he spent time with his parents, siblings and girlfriend.  He stated upon his return to Dhurringile Prison following this weekend release, he had no counsellor with whom he could discuss his emotional turbulence.  He states, although he has had caseworkers and case managers, it has been made clear to him those relationships were not counselling relationships.” (Exhibit O, Exhibit JEC-2 at 5-6)

2. Mr Cummins said that he remained “… of the opinion … this young man’s prospects for a long-term rehabilitation are at least good, and possibly very good.  Indeed … [he was] now prepared to express the opinion his prospects for long-term rehabilitation are most probably very good.” (Exhibit O, Exhibit JEC-2 at 6)

1. In his oral evidence, Mr Cummins said of Mr Jeffery Grant’s positive drug test that it indicated that he was almost certainly not a regular drug user and not even an intermittent drug user.  Had he been one of those, there would have been other positive drug tests.  Although it varies from prison to prison, drug tests may take place weekly or biweekly or even randomly.  If the prison officers decide that a prisoner is unlikely to be a user, the frequency of the drug tests is reduced.  Had Mr Jeffery Grant had an earlier positive drug test, the frequency of his drug tests would have been increased.

1. Mr Jeffery Grant is now able to talk about matters such as the effect on him of his father’s actions.  Initially, he thought that Mr Grant had not composed the letter he sent to the Department but he now understands that he did.  He regards it as a most impressive letter.  Initially, he had thought that Mr Jeffery Grant’s prospects of rehabilitation were good but, having seen him shortly before the hearing, he now thinks that his chances are better than good.  The quality of his relations with others has matured and improved.  He now has a good deal of insight into what motivated his behaviour and a good understanding of his present psychological state. 

1. As for his amphetamine use in prison, Mr Cummins was asked whether Mr Jeffery Grant would relapse into the use of drugs given that he had taken an amphetamine at a time when he was psychologically overwhelmed.  His reply began with his initial understanding of what had happened at Dhurringile Prison when he was offered the amphetamine.  Mr Jeffery Grant had realised that Mr Cummins had misunderstood the situation and had been at pains to make it clear to him that he had taken the drug.  He had also been upset that the way he had worded his statement might have led Mr Cummins to believe that he had refused the offer of the drug.  Observing that he had 24 years experience in treating and assessing drug users, Mr Cummins considered that Mr Jeffery Grant’s prospects of success were very good or, perhaps, better than very good.  He would not expect Mr Jeffery Grant to relapse into drug use because of his family support network.  The family support network is far greater than any he has had in the custodial setting.  The circumstances in which he used the drug were extreme in their type.  For the majority of prisoners, returning to prison after a period of leave is a very emotional time.  He was vulnerable to the offer of amphetamine. 

1. The chances of his re-offending are small and even very small.  He was not prepared to say that there was no chance.  As for his gambling, he was not prepared to say that he certainly would not return to it.  What he would say was that gambling is common, and some would say rife, in a custodial setting.  Mr Jeffery Grant would have had numerous opportunities in prison to gamble and yet he indicated that he has not done so.  That was not a surprise to Mr Cummins because he had the impression that Mr Jeffery Grant’s arrest and being charged was quite a cathartic experience.  If he were still reacting to stressful situations by keeping everything secret, Mr Cummins would be concerned that he might re-offend.  As it is, Mr Jeffery Grant is no longer reacting in that way.  He has, in Mr Cummins’ opinion, matured quite significantly in the short time he has been in custody. 

1. Mrs Grant said that:

   “… I will be marrying an Australian citizen and have no intention to go back to Jamaica to live.  If Jeff were to go back this would have a devastating effect on my entire life.  I cannot let him go back there on his own without any family or support.  He left Jamaica when he was a young boy and his knowledge of Jamaica is very limited.  Financially I cannot afford the air fare to go to Jamaica on a regular basis to see my son.

   …

   Should he be sent back I feel my life would be further traumatised this will affect my relationship, and every aspect of my life including my health.  I am physically and emotionally exhausted, and this can only add more stress and strain to my life.  Jeff has reformed totally; I have seen the changes in him and I know in my heart that he will do well, and that he will not be a threat to society and that he could be a positive influence to other young people who find themselves in similar circumstances.  He needs to be with his family here in Australia, which would be the best chance for his rehabilitation, I will be there for him to achieve his dream of getting a degree in the hospitality industry.” (Exhibit D, Exhibit JG-1 at 1-2)

1. Mr Grant senior said that he believes in Australia; everything that he does is for his children.  He came for a better life and his children have excelled.  They are ambitious, part of society and people like them.  Australia is a blessed country and he likes it here; Australia is his home.  In coming, he has missed out on essential days in his sons’ lives but the sacrifice has been justified. 

2. In oral evidence, Mrs Grant confirmed that she felt that her son had become more like the child she had before.  He has gone back to being a gentle person; a mature person.  She knows that from the way in which he speaks. 

1. Mr Roderick Grant said that he did not believe that his brother would offend again.  His brother had matured over the past three years.  He stresses to his younger brothers not to follow his path.  Mr Max Grant expressed similar sentiments.

1. Mr Crome had not known of Mr Jeffery Grant’s positive drug test until the day of the hearing.  He believed that his future step son has shown genuine remorse for his victims and is contrite for his crimes.  In his time in prison, Mr Jeffery Grant has reflected on what has happened.  In Mr Crome’s view, Mr Jeffery Grant has changed quite dramatically for the benefit of all victims, family and friends.

1. Ms Morrell said that she was aware of Jeffery’s convictions and of his positive drug test in prison.  She thought that he was “absolutely not” likely to commit further offences.  She based her belief on the fact that he has a more open relationship with his family and is much more open about explaining matters.  Jeffery can handle things in a much more mature manner than by taking drugs.  He has the support of his family.  She would not still be there for Jeffery if she thought that he would re-offend.  He has become truthful with her and the family even if they do not want to hear the truth.

1. If Jeffery were to remain in Australia, Ms Morrell said that she saw them as beginning a life together soon and moving in together.  If he is not, she will spend the next two years completing her studies and then taking steps to meet him.

CONSIDERATION

Framework of Act

1. Under the Act, the Minister may grant visas either to travel to and enter Australia or to remain in Australia or to do both. There are classes of visas (s. 31(1)). Some are specified in the Act itself and some are prescribed in the Migration Regulations 1994 (“Regulations”) (s. 31(2)). The Regulations may prescribe criteria for a visa or for a visa of a specified class (s. 31(3)). For the purposes of this case, the prescribed criteria for the grant to a person of a visa of the type held by Mr Jeffery Grant are found in the primary criteria (and secondary criteria, if any) set out in the relevant Part of Schedule 2 to the Regulations. Among the primary criteria that must be satisfied for a Class BC subclass 100 (as dependent) is that, at the time the decision is made, the person satisfies the requirements of public interest criterion 4001 i.e. that there is no evidence that might justify refusal of the visa under s. 501.

1. Even if a person satisfies the primary criteria for a visa, s. 501(2) of the Act provides that:

   “The Minister may cancel a visa that has been granted to a person if:

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

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

1. The “character test” is set out in s. 501(6), which, in so far as it is relevant, provides that:

   “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

   (b)…

   (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; or

   (d)in the event the person were allowed to enter or to remain in Australia,

there is a significant risk that the person would:

(i)engage in criminal conduct in Australia; or

(ii)harass, molest, intimidate or stalk another person in Australia; or

(iii)vilify a segment of the Australian community; or

(iv)incite discord in the Australian community or in a segment of that community; or

(v)represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.

Otherwise, the person passes the character test.”

A “substantial criminal record” is defined in s. 501(7) to mean, in part, that:

“…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

(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; or

(e)…”

The term “imprisonment” means “… any form of punitive detention in a facility or institution” (s. 501(12)). 

The Direction

1. Pursuant to s. 499, the Minister may give written directions to a person or body about the performance of functions or the exercise of powers under the Act. The person or body must comply with those directions which must not be inconsistent with the Act or the regulations made under it. On 23 August 2001 the Minister made directions under s. 499 for the guidance of decision-makers in making decisions to refuse or cancel a visa under s. 501 of the Act, Direction – Visa Refusal and Cancellation under section 501 – No. 21 (“the Direction”). This is a matter to which the Tribunal will pay regard and particularly so as is it is policy formulated by the Minister. At the same time, “… the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.” (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590 per Bowen CJ and Deane J).

1. In commenting generally upon his power to refuse or cancel a visa, the Minister stated in the Preamble to the Direction:

“In exercising this power, the Minister has a responsibility to the Parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to refuse to grant visas, or cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it.

… When a visa applicant or a visa holder does not pass the Character Test, decision-makers will decide whether to refuse the application or to cancel a visa.  Exercise of this discretion will take into account a wide range of factors including the expectations of the community, the nature of crimes committed, the non-citizen’s links to Australia and any relevant international law obligations.”

1. The Minister goes on to give a direction as to the purpose for which the powers of refusal or cancellation were given by the Parliament in enacting s. 501 when he said:

   “The purpose of refusing or cancelling a visa under section 501 is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to enter or to remain in the community.”

The Direction - application of the character test

1. The Direction is then divided into two: the application of the character test and the exercise of the discretion. Taking first the application of the character test, there is no dispute between the parties, and I find, that Mr Jeffery Grant has a substantial criminal record within the meaning of s. 501(7)(c) and so does not pass the character test.

The authorities regarding “good character”

1. Although Mr Jeffery Grant has not passed the character test, it is worthwhile to focus for a moment on what is meant by the expression “good character”.  It was considered in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 where Deputy President McMahon said that:

   “‘Good character’ cannot have the meaning commonly attributed to it in criminal trials. In that context, it usually means absence of convictions or, at most, absence of adverse police notice. The distinction drawn in the two subparagraphs between criminal and general conduct supports the view that here, good character does not have the narrow criminal law meaning. There are many cases dealing with prohibited references to bad character and the effect on trials when evidence of that nature is allowed before a jury. In the present context, it is more likely that good character was intended to be given a broader meaning.

   The Macquarie Dictionary defines character as ‘1. the aggregate of qualities that distinguishes one person or thing from others; 2. moral constitution, as of a person or people; 3. good moral constitution or status; 4. reputation; 5. good repute; 6. an account of the qualities or peculiarities of a person or thing.’ In assisting the Minister to determine whether a person has a good aggregate of qualities, as distinct from a bad one, regard should be had to the structure and purpose of the legislation.” (pages 154-155)

1. In Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780, Deputy President McDonald added:

   “A decision about whether a person is of good character requires a consideration of an aggregate of qualities.  It is true to say, however, that, 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.” (page 781)

1. What is meant by the expression “good character” was also considered by the Full Court of the Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 (Davies, Lee and Nicholson JJ). While each rejected the notion that good character referred to a person’s reputation or repute, Lee J expressed that to which it does refer in the following passage:

   “Unless the terms of the Act and regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion …

   …

   Notwithstanding the breadth of the disqualifying elements of the prescribed criteria, the purpose of reliance upon the concept of good character in the regulations is of importance. Common sense suggests that the Act and regulations are not concerned with infractions or patterns of conduct that show weaknesses or blemishes in character but with ensuring that the exercise of a sovereign power to prevent a non-citizen entering Australia is only invoked when the non-citizen is a person whose lack of good character is such that it is for the public good to refuse entry.” (page 94)

1. Finally, regard should be had to the judgement of the Full Court of the Federal Court in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321 (Spender, Drummond and Mansfield JJ). Speaking generally of s. 501, the Full Court said that it:

   “… does not charge the decision-maker with the task of making a judgment, general in nature, about the character of a person, ie, a judgment to which the statutory context is of no relevance. The concept of ‘good character’ in s 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 s 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry.

   … Even though the appellant sought a long-term entry permit, the tribunal may well have set too high a standard in determining, on the basis upon which it acted, that he was not a person of good character: it appears to have concentrated, in making this finding, on considerations showing a lack of the highest integrity on his part, without making any attempt to test the deficiencies it identified in his conduct against the level of harm to the public good that would be presented by his admission into the Australian community on a permanent basis.  However, no challenge being made to the tribunal’s decision on this ground, so it is unnecessary to pursue this question.” (pages 324 and 327)

The Direction – exercise of the discretion

1. As I have found that Mr Jeffery Grant does not pass the character test, I must now consider whether or not his visa should be cancelled.  This is the discretionary aspect of the character test.  The Minister has directed that there are both primary and other considerations to which a decision-maker should have regard in exercising the discretion.  Decision-makers are directed that they:

   “… 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.” (Direction, cl. 2.2)

1. The three primary considerations are:

   “(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 relationship or other close relationship between a child or children and the person under consideration, the best interests of the child or children.” (Direction, paragraph 2.3)

1. The Minister then deals with each primary consideration in turn.  The consideration of the protection of the Australian community requires me to consider three factors: the seriousness and nature of Mr Jeffery Grant’s conduct; the likelihood that he will repeat it; and whether visa refusal might prevent or discourage similar conduct in the future (Direction, cl. 2.5).

1. Of particular significance in relation to the seriousness and nature of Mr Jeffery Grant’s conduct, I must have regard to the Direction that:

   “It is the Government’s view that the following are examples of offences which are considered by the Government to be very serious:

   …

   (e)armed robbery (including robbery involving the use of imitation weapons), home invasion;

   …

   (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;

   …”

   (Direction, cl. 2.6)

1. In assessing such matters, regard must also be had to any relevant factors put forward by Mr Jeffery Grant as mitigating factors (Direction, cl. 2.8(a)).  The sentence imposed for any offence is regarded as an indication of the seriousness of the offender’s conduct against the community (Direction, cl. 2.7).  Regard must also be had to the likelihood that his conduct may be repeated and to the need to deter other people from repeating such conduct.  In assessing that in the context of

Mr Jeffery Grant’s case, it is relevant to have regard to:

“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.” (Direction, cl. 2.10(c))

General deterrence, the Direction continues, is intended to deter others from committing the same or similar offences (paragraph 2.11(a)).

1. Consideration must be given to the second primary consideration i.e. the expectations of the Australian community as they have been identified by the Minister as follows:

   “The 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.  …” (Direction, paragraph 2.12)

1. The third primary consideration relates to the best interests of a child.  That is not relevant in this case as Mr Jeffery Grant does not have any children.

1. The Minister has recognised that there are considerations, other than primary considerations, which may be taken into account.  As each of those other considerations is given less weight than is given to the primary considerations, I will return to them later in these reasons.  Before doing so, I should mention the manner in which I am required to consider primary considerations.  This was considered by the Full Court of the Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133 (Branson, North and Stone JJ) in the context of the primary consideration relating to the best interests of the children. The Full Court said:

   “32    An identification by the Tribunal of what the best interests of Mr Wan’s children required, and a recognition by the Tribunal of the need to treat such interests as a primary consideration, would not have led inexorably to a decision by the Tribunal to adopt a course in conformity with those interests.  That is, even had the Tribunal concluded that the best interests of the children indicated that Mr Wan should be granted a visa, it was legally open to it to refuse to grant Mr Wan a visa. Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of Mr Wan’s children, it was entitled to conclude, after a proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children.  However, it was required to identify what the best interests of Mr Wan’s children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.

   33      The written reasons of the Tribunal suggest that it regarded the expectations of the Australian community as a primary consideration (indeed, it might be thought, the primary consideration) in the exercise of the discretion to grant or to refuse to grant Mr Wan the visa for which he had applied.  The Tribunal was entitled to regard the expectations of the Australian community as a primary consideration provided that it did not overlook that, on the procedure which it had adopted, procedural fairness demanded that it act on the basis that the best interests of Mr Wan’s children were a consideration of equal significance (that is, also a primary consideration). So, for example, the Tribunal might have concluded that the best interests of Mr Wan’s children required that Mr Wan be granted the visa, but that the damage to their interests that would flow from his being refused the visa would be of only slight or moderate significance.  If the Tribunal had also concluded that the expectations of the Australian community were that a non-citizen who engaged in conduct of the kind engaged in by Mr Wan would not be granted a visa, and that a decision to grant such a visa would be a most serious affront to the expectations of the Australian community, it would have been entitled to conclude that, in the circumstances of the case, the best interests of the children were outweighed by the strength of community expectations.” (page 142)

1. Before returning to the balancing of the primary considerations, I will set out the remaining considerations of which the Direction requires consideration.  These considerations are considered by the government to be relevant but of less individual weight than the primary considerations.  In so far as they are relevant in this case, they include:

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

   (b)     genuine marriage to or de facto or an interdependent relationship with an Australian citizen;

   (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 dependant 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;

   (e)     …

   (f)     …

   (g)     …

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

   (i)     whether the application is for a temporary visa or permanent visa;

   (j)     the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances; and

   (k) the fact that a non-citizen has been formally advised in the past by an officer of the Department of Immigration and Multicultural Affairs about conduct which brought him or her within … the visa refusal and cancellation provisions at section 501.” (Direction, paragraph, 2.17)

Should Mr Jeffery Grant’s visa be cancelled on the basis of his not passing the character test?

1. This is a most difficult case.  The easy decision would be to say that Mr Jeffery Grant’s visa should be cancelled.  After all, he has committed not just one serious offence but 20 of them.  They are offences in which he has been armed either with an imitation pistol, a machete or a knife (that may have been a sword, or perceived as a sword, on one occasion).  The victims of those offences have been confronted with at least the threat of violence in the form of the weapons and a number of them are now unable either to work at all, or at least could not continue in their position as a late night store attendant.  Why should Australia tolerate the presence of such a person?  He has violated the Australian community’s trust and faith in permitting him to come to its shores.  Even in prison, he has taken an amphetamine.  Does that not show that he will take drugs again when he is released?  If he takes drugs, it is but a short step to his again owing money to his drug suppliers and so to embarking on another, to use Judge Davey’s words, “one man crime spree”.   Certainly, he has the support of his family.  It is a good and strong family but he had that support in the past and did not take the assistance it offered.  Why should the Australian community expect that he will turn to it in the future?  He will simply repeat his past behaviour.  The risk of his doing so and the consequences of his doing so outweigh the hardship to him and his family.

1. Faced with that sort of logic, it could be thought hard to reach the decision that his visa should not be cancelled. Yet, that is the decision that I do reach and the Direction guides me to make it. First, care must be taken to understand the principle behind the sentence imposed on Mr Jeffery Grant’s on being convicted and that behind the character test in s. 501 as well as the Direction and the manner in which each is achieved.  In the case of criminal offences:

   “… sentences are in almost every case intended to protect the public, whether by punishing the offender or reforming him, or deterring him and others, or all of these things.  Courts cannot and should not be unmindful of the important public dimension of the criminal sentencing and the importance of maintaining public confidence in the sentencing system.” (R v Howells [1999] 1 WLR 307; 1 All ER 50 (CA) at 312; 54)

The principle behind the character test is the same.  As the Minister has said, “… to protect the community from criminal or other reprehensible conduct …” (Direction, Preamble). 

1. Are the tools for achieving the principle the same in each case?  The passage from R v Howells reveals three tools: punishment, deterrence and reformation.  Each is apparent in Judge Davey’s remarks.  He clearly tried to impose a sentence that required Mr Jeffery Grant to be imprisoned for a term significant enough to show that his offences were regarded as serious and so that the offender should be punished as well as to deter others.  At the same time, he wanted to give Mr Jeffery Grant a chance of rehabilitating himself and has given him a period of parole that is quite lengthy compared with the total sentence. 

1. The tools used to achieve the same principle underpinning the character test are slightly different.  Deterrence and rehabilitation are certainly aspects that are taken into account but they are not the same tools as are used in sentencing.  Whereas in the sentencing process, the sentence itself fashions the tool for deterring others from committing similar crimes, it is the likelihood of the visa refusal or cancellation that fashions it in the character test.  It follows that I do not accept Mr Hurely’s submission that I should not take deterrence into account in considering the discretion under the character test for Judge Davey has already considered it.  So his Honour has but I am required to consider it from the different aspect.  It cannot, contrary to Mr Hurley’s submission, be regarded as punishing Mr Jeffery Grant twice.

1. Rehabilitation also becomes a differently fashioned tool under the character test from that which it is in sentencing.  The sentence may well, as it has in this case, be imposed to achieve the rehabilitation of the offender and so the protection of the public.  Rehabilitation in the context of the character test is not intended to reform the person whose visa is under consideration.  Regard is had to that which has been achieved and to that which may be achieved. 

1. Punishment is the point at which sentencing and the character test diverge.  Unlike sentencing, punishment of the person has no place in the application of the character test.  It is understandable that those who have a visa cancelled or refused because of the application of the character test and their families may feel that it is otherwise.  Despite that, it is very important that the principle behind the character test and the tools used to achieve it are kept firmly in mind.  Punishment is not part of the principle or one of the tools.

1. There is no question that the offences Mr Jeffery Grant has committed are very serious offences indeed.  Judge Davey chose to sentence Mr Jeffery Grant as an adult rather than as a youthful offender for that very reason.  The more difficult question is whether he is likely to repeat them. 

1. On the basis of all of the evidence, including that of Dr Walton and Mr Cummins as well of Mr Jeffery Grant and his family, I find that he committed the offences at a time when he was very disturbed after learning of his father’s two extra-marital children.  His childhood dream (and he was still very young) of the resumption of family life with his father as a constant presence in his life slipped away from him.  He had responded badly by not concentrating on his school work and by truanting.  A change of school neither assisted him nor led to a change in his outlook.  When help in the form of counselling was offered to him by his parents, he refused it.  His brothers did not suffer in the same way but that does not detract from the fact that Mr Jeffery Grant did. 

1. He took up with friends who then led him to drugs and gambling.  Although he told the police one thing and everyone else another, I accept Mr Cummins’ evidence that it is not out of the ordinary for a person in Mr Jeffery Grant’s position to omit the real reasons for his offending.  Consequently, I accept that Mr Jeffery Grant used the majority of the money from his armed robberies on repaying his drug debts.  I also accept that he had repaid all but one or two hundred of the debt he owed the drug dealer. 

1. Although Mr Jeffery Grant has undertaken drug education, courses on relapse prevention and anger management and participated in Alcoholics Anonymous, he has not undertaken a course in reducing his gambling.  It is not relevant that he has not done so.  That is because I have accepted that Mr Jeffery Grant’s gambling was consequent upon, or incidental to, his drug taking.  It was not gambling that led him into debt but the acquisition of drugs.  I accept that he does not have a gambling problem in isolation from the suite of circumstances that led to his committing the offences.  I do so on the basis of his evidence but, more importantly, on the basis of the evidence of Dr Walton and of Mr Cummins and on the fact that there is no indication that he has engaged in it after he committed his offences and during his term of imprisonment.  That is so even though I find on the basis of Mr Cummins’ evidence that gambling is very common, if not rife, in prisons. 

1. All of the evidence points to Mr Jeffery Grant’s having benefited from his time in prison.  He has grown up.  At the time he was committing his offences, he was 17 years of age.  He is still only 20.  He has gained maturity simply by growing up but has also from his experiences in prison.  He has gained insight into his actions and those of others.  Certainly, he and his family speak of these qualities’ having emerged.  Given their previous experience with people in Mr Jeffery Grant’s position, it is even more important that Dr Walton and Mr Cummins have noted them.  Both were impressed by his efforts to rehabilitate himself.  I am satisfied that he has gained insight into his past behaviour and the reasons for it.  He has gained insight into the behaviour of others and the way in which he should regard himself in light of their behaviour to him.  Whereas he previously reacted to his father’s behaviour and his parents’ marriage difficulties by joining others in activities in which he would not think about it, he is now able to talk about such matters and their impact on him.  He is also now more accepting of his parents’ actions and does not rail against them.  Mr Jeffery Grant has learned to turn to those who love him and to seek their support even when he or they have not lived up to his expectations or dreams. 

1. I find that, other than the positive drug test, Mr Jeffery Grant has not committed any infringements since he has been in prison.  I accept his evidence that the positive urine test occurred two days after the only occasion on which he had taken drugs in prison.  I note that a minute from the Department’s Character Section referred to an advice stating Mr Jeffery Grant had tested “… positive to amphetamine use whilst on temporary leave from Dhurringile” (G documents, G19, emphasis added).  The note is ambiguous and suggests either that the drug test took place whilst he was on leave or that he used while he was on leave.  If the latter, there is no evidence regarding the timing of the test other than that given by Mr Jeffery Grant.  If it occurred, as he states, that it occurred two days after his return, it is difficult to see how the drug test could indicate use of a drug while he had been on leave rather than, as he states, on his return.  Given his otherwise excellent record in prison, it is disappointing that he did so and could sow a small seed of doubt as to his future rehabilitation.  I have decided that it is only a small seed as I accept the evidence of Mr Cummins that, had Mr Jeffery Grant succumbed on other occasions, he would have returned other positive urine tests during his imprisonment.  That supports Mr Jeffery Grant’s evidence that he had not taken drugs on any other occasion.  The seed of doubt is also small because of the time at which Mr Jeffery Grant took the amphetamine.  He took it at a time when he was, to use Mr Cummins’ words, psychologically overwhelmed, as other prisoners are on their return from leave.  At the time, he was also without a support network.   

1. I do not consider that his use of the amphetamine on one occasion is indicative of a propensity to re-engage in drug taking on his release.  His case also differs from many in that there is a discrete six month period of offending.  Although there was truancy before that, there is no evidence of misbehaviour before that time.  It is not a case in which there has been a history of offending with periods of non-offending in between.  There is no pattern that has been repeated other than the pattern within the discrete period but that has been explained by the circumstances in which he found himself at the time.  At that time, he lacked the maturity and insight he now has.  Judge Davey had some faith that he would rehabilitate himself by setting a relatively lengthy parole period.  That will be a period in which he is supervised and his behaviour monitored.  On the evidence, I am satisfied that he is in the process of justifying that faith.  The professional evidence of Dr Walton and Mr Cummins is that the chances of his rehabilitation are good or better than good.  The other side of that is that the risk of his re-offending is small.  I accept their evidence.  Mr Jeffery Grant will no doubt be faced with stressful circumstances in everyday life but I accept that he is better armed to cope with them and to find a way of dealing with them other than committing further offences. 

1. Deterrence in the context of the character test is always difficult.  There is no empirical or other evidence that I have been given as to the deterrent effect that refusing a person entry to Australia or requiring their departure has on other people’s behaviour.  It may be that people who know Mr Jeffery Grant know of what happens to him but would that deter them from behaviour leading to their committing offences?  They might not have engaged in such behaviour in the first place or even thought of it.  If they did, they might be Australian citizens in any event.  Does the news of what happens to a person travel through the community in ways I am not aware of?  I am left in the realm of speculation and so do not make a finding one way or the other regarding deterrence.

1. That brings me to the expectations of the Australian community.  It is fair to say that the Australian community expects to be able to go about its lawful business without being robbed of their earnings.  It expects that its members will not be confronted with a person armed with weapons, such as a pistol, machete or knife, that can clearly do them harm.  Confrontation of that sort can permanently harm a person and change their lives even if there is no physical harm inflicted.  That appears to be the case here for some of Mr Jeffery Grant’s victims are no longer able to work at night.  The Australian community also exhibits compassion.  It acknowledges that people can change and should be given a chance if they are genuinely trying to rehabilitate themselves and showing that they are succeeding.  It acknowledges that they can grow up and change their ways. 

1. If Mr Jeffery Grant were required to return to leave Australia, he would return to Jamaica.  On the evidence, I find that he has few relatives in that country and no family support base as he has in Australia.  He has no guaranteed place of employment.  His future is uncertain.  I find that his mother would be very affected by his departure as she could not afford to visit him with any regularity at all.  If he remains in Australia, he has the support of his family network and a guaranteed place of employment in the family restaurant.  He has a girlfriend who has shown him love and support over the years.  Whether that love and support continues in the same way only time will tell.  At 18 years of age and studying, she is still in the process of growing and changing as Mr Jeffery Grant did at the same age and continues to do in prison.    

1. When I balance all of these matters, I consider that it lies in favour of Mr Jeffery Grant’s being permitted to remain in Australia.  If he were to re-offend and were to commit similar offences, a member or members of the Australian community would suffer.  That is a very serious matter.  The seriousness of the consequences that would result from Mr Jeffery Grant’s re-offending must be weighed against the small risk of his re-offending.  The small risk of his re-offending means that there is a small risk of the consequences’ occurring.  The consequences to him would be grave.  They are consequences about which he was not given any warning by the Department.  Given his prospects of continuing rehabilitation, I consider that the Australian community would be appropriately protected were Mr Jeffery Grant’s visa not cancelled.

1. For the reasons I have given, I:

1.set aside the decision of the respondent dated 6 October 2004; and

2.substitute a decision that the applicant’s Class BC subclass 100 (as dependent) visa not be cancelled on the basis that he does not pass the character test pursuant to s. 501 of the Migration Act 1958.

I certify that the hundred and six preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie,

Signed:           ...............................................................

R. Crook  Associate

Date of Hearing  20 December 2004

Date of Decision  6 January 2005
Counsel for the Applicant             Mr T Hurley

Solicitor for the Applicant            Ms M Jockel

Gadens Lawyers

Solicitor for the Respondent        Mr M Brereton

Australian Government Solicitor