Green and Minister for Immigration and Citizenship
[2007] AATA 1410
•7 June 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1410
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/1625
GENERAL ADMINISTRATIVE DIVISION ) Re Russell GREEN Applicant
And
Minister for Immigration and Citizenship
Respondent
DECISION
Tribunal Professor GD Walker, Deputy President Date7 June 2007
PlaceSydney
Decision The decision under review is affirmed. ..................[sgd]............................
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION –cancellation of applicant’s transitional (permanent) visa – applicant failed character test – applicant has a long criminal history spanning 24 years - applicant convicted of serious offences including armed robbery and crimes of violence against persons – applicant committed further offences after being warned about the risk of visa cancellation – evidence indicated a significant risk of recidivism – visa cancellation is not intended as a punishment but Direction 21 clearly contemplates that the prospect of it will operate to deter similar conduct – setting aside the decision under review would send an undesirable message to non-citizens contemplating criminal activity – applicant has made only limited progress towards rehabilitation – community in this case would expect the offender to be removed from Australia – decision under review affirmed.
RELEVANT ACT/S:
Migration Act 1958: ss 501, 501G, 501(2)(a), 501(7)(c) and (d),
Direction No 21
Administrative Appeals Tribunal Act 1975: s 42A(9)
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
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608
Re Sam and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Re Muirson and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1270
Re Pull and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 868
Re Williams and Minister for Immigration and Multicultural Affairs [2007] AATA 1012
…
REASONS FOR DECISION
7 June 2007 Professor GD Walker, Deputy President Summary
1. The applicant Russell Green seeks review of a decision by the respondent’s delegate to cancel the applicant’s transitional (permanent) visa, which was cancelled on the ground that he did not satisfy the character test set out in s 501 of the Migration Act 1958 (the Act).
2. The application was originally filed on 24 August 2005 but was dismissed on 19 October 2005 because the applicant failed to attend the hearing. With the consent of the parties it was reinstated on 5 March 2007 and the hearing took place on 7 May 2007.
3. At the hearing, the applicant was represented by Ms S Higgins, and the respondent by Mr Greg Johnson. 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.
Issue
4. The applicant concedes that his criminal record is such that it falls within s 501(7)(c) and (d) of the Act. The applicant therefore also concedes that he does not pass the character test as set out in s 501(2)(a) of the Act.
5. Accordingly, the only issue for determination by the tribunal is whether the discretion in s 501 of the Act should be exercised so as to decide not to cancel the applicant’s visa, having regard to the relevant facts, the applicable law and the Minister’s Direction No 21.
Relevant Law and Policy
6. 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; …
…
7. “Substantial criminal record “ is defined in s 501(7)
…
(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;
…
8. 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 the 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.
9. 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 when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
Chronology and basic facts
10. The applicant was born in the United Kingdom on 17 January 1965. He attended school in Sheffield, England, before coming to Australian in January 1974 at the age of nine with his parents and his sister.
11. As a result of changes brought about by the Migration Reform Act 1994 [the Reform Act], the applicant was taken to have been granted a transitional (permanent) visa on 1 September 1994. He has not left Australia since his arrival.
12. The applicant has never married but has been involved in a number of de facto relationships, one of which led to the birth in 1984 of a son, Benjamin, now aged about 22 or 23. As Benjamin’s mother was an intravenous drug user who suffered from epilepsy, Benjamin was raised by the applicant’s father and step-mother.
13. The applicant said at the hearing that he worked at about 15 jobs between the ages of 15 and 18, but appears not to have been in employment at any stage in his adult life.
14. The applicant has been incarcerated for approximately 18 of his 42 years, including about two years in immigration detention. He has been before the criminal courts 24 times in 29 years, the first occasion being on 12 December 1978 when he was 13.
15. In Exhibit A2, the applicant set out in convenient tabular form a chronological criminal record. The respondent conceded its correctness and I set it out below. The convictions falling within s 501(7)(c), in that they resulted in sentences of more than 12 months imprisonment, are reproduced in bold type, while those coming within s 501(7)(d) are in ordinary type:
applicant's criminal record in respect to s.501(7)(c) & (d) offences
Court Date
Court
Offence
Sentence
12.12.1978
Sutherland Children's Court
Break enter and steal
Committed to an institution for 6 months - sentence suspended on entering self recognisance of $500 with good behaviour for 2 years
07.07.1981
Albion St. Children's Court Sutherland
Break enter and steal (4 counts)
Break & enter with intent
Escape lawful custody
illegal use of conveyance
Committed to an institution for 12 months on all charges
12.10.1981
Minda Children's Court
Gross insubordination
3 months hard labour
27.05.1982
Minda Children's Court
Malicious injury
Malicious damage
Committed to institution for 6 months commencing 11.10.1981 on each charge
16.08.1984
Sutherland Petty Sessions
Carried in conveyance
12 months with a non parole period of 6 months
17.08.1984
Sutherland Petty Sessions
Malicious injury
1 month hard labour and payment of compensation of $50
27.09.1984
Sutherland Petty Sessions
Breach of CSO
3 months hard labour
14.11.1984
Sutherland Petty Sessions
Possess prohibited drug
3 months hard labour
Attempt Break & enter with intent
18 months hard labour with non probation from 14.11.1984
Break enter & steal
18 months hard labour with non probation from 14.11.1984
Receiving
4 months hard labour
30.01.1985
Sutherland Petty Sessions
Goods in custody
3 months hard labour
27.09.1985
Kogarah Local Court
Attempt steal
3 months hard labour
26.11.1985
Sutherland Local Court
Break enter & steal
2 years imprisonment with a non parole period of 9 months from 27.06.1985
29.02.1988
Sutherland Local Court
Receiving
Fail to appear
Stealing
3 months hard labour on each charge to be served concurrently
04.03.1988
Sutherland Local Court
Stealing
3 months hard labour
07.03.1988
Sutherland Children's Court
Drive whilst disqualified
6 months hard labour
19.06.1989
Parramatta District Court
Larceny
2 years 3 months imprisonment with a non probation period of 2 months and 3 years and payment of compensation of $17,794
Break enter & steal
18 months imprisonment
05.07.1989
Central Local Court
Fail to appear
Possession of car breaking implements
1 month hard labour
3 months hard labour
29.05.1991
Central Local
Court
Illegal use of conveyance
Possess implements
Drive manner
dangerous
6 months imprisonment on
each charge
GIC
3 months imprisonment
01.12.1992
Sydney
District Court
Armed robbery
Steal motor vehicle
Possess shortened
firearm
Possess prohibited
article
Minimum term of 3 years 6 months on armed robbery charge with additional term of 14 months on additional charges and a fixed term of 1 year from 21.05.1992
27.09.1993
Junee Local Court
Stealing
4 months imprisonment
21.04.1995
Central Local Court
Break enter & steal
12 months imprisonment from 27.11.1994
Possess Housebreaking implement
6 months imprisonment from 27.11.1994
Escape from lawful Custody
9 months imprisonment
23.05.1995
Sydney District Court
Armed robbery – 3 counts
On each charge a minimum term of 5 years with an additional term of 1 year and 8 months
06.10.2000
Wagga Wagga Local Court
Drive conveyance w/o consent of the owner
1 month imprisonment
10.12.2004
Liverpool Local Court
Drive conveyance w/o consent of the owner
12 months imprisonment from 23.05.2003
Break enter & steal
24 months imprisonment from 23.05.2003 with a non parole period of 12 months
Break & enter with intent
24 months imprisonment from 23.05.2003 with a non parole period of 12 months
19.12.2005
Fairfield Local Court
Larceny
4 months imprisonment
16. The applicant has previously been warned that his visa might be cancelled because of his criminal conduct. On 2 November 2001 at Long Bay he was informed in person that the minister intended to consider cancelling his visa pursuant to s 501 of the Act. The cancellation ground was set out in a notice that was given to him and he was invited to submit any comments that he believed relevant to the matter. He responded to the invitation by letters dated 4 November 2001 and 9 December 2001. On 21 January 2002, the minister determined that the applicant failed to pass the character test but decided not to cancel the applicant’s visa. On 24 January 2002, the applicant acknowledged in writing that he fully understood that any further convictions for any offences, or if he were to come to notice under any of the provisions of s 501(6), his visa might be reconsidered for cancellation (G p71).
17. The applicant was next convicted on 10 December 2004, of three offences. On 3 June 2005, the respondent wrote to the applicant informing him that it was intending to cancel his visa pursuant to s 501(2) and inviting him to comment on that proposed cancellation. The respondent received no reply to that letter from the applicant.
18. On 16 August 2005, the respondent wrote to inform the applicant that his visa had been cancelled pursuant to s 501(2) on the ground of his substantial criminal record (s 501(6)(a)).
19. The applicant applied to this tribunal for review of the delegate’s decision on 24 August 2005. The applicant failed to appear at the hearing on 19 October 2005. Although the tribunal was reluctant to proceed to hear the matter ex parte because of jurisdictional issues, the application was dismissed for non-appearance.
20. In March 2007, the applicant applied to reinstate the application. He explained that when he was released from custody in 2005, he mistakenly thought that because he had been released, the minister must have decided not to proceed with removal or cancellation. On 5 March 2007, the tribunal with the consent of the parties reinstated the application pursuant to s 42A(9) of the Administrative Appeals Tribunal Act 1975.
The applicant’s evidence
21. The applicant’s evidence in chief consisted of his statement dated February 2007 (Exhibit A3.1) and the letters of 4 November and 9 December 2001 (Exhibits A3.8 and A3.9). Together they are quite voluminous, but I will endeavour to summarise them, incorporating a few points from the applicant’s oral evidence as well.
22. In oral evidence, the applicant stated that he had spent all his life since the age of nine in Australia. His schooling from 3rd grade was in New South Wales, ending in the middle of Year 9 when, he said, it was suggested that he leave St Patrick’s Catholic High School at Sutherland because of his inability to learn.
23. He says he can only remember one year of infant school and has no recollection of his other schooling in Sheffield, England.
24. He said he could not understand why he became a thief from a young age except that he “always seemed to be around bad kids, then bad adults”. After serving some small sentences for theft, he committed his first armed robbery in 1992. Although he himself only carried an imitation weapon, he was also charged with the real gun that his co-offender was carrying. He absconded from prison in 1994 because he had started to play cards with other inmates and lost an amount of money that he could not afford to pay back.
25. The applicant stressed that he had never pointed a loaded gun at anyone, that he had been bluffing with the imitation gun and later used an imitation shotgun that was a piece of pipe under a towel. He was not violent and had “never as much as even pushed a member of the public in my whole life”. He hated being in prison, which was “full of some of life’s lowest scum”. He had “lost 3 good friends in here over the years who were murdered for nothing except being white”.
26. For most of his sentence, he said, he had sat in his cell designing and making greeting cards for inmates to send to their families, having become interested in drawing and art as a result of (unlawfully) performing tattoo work for inmates. Discovering he had some artistic ability, he taught himself to paint and hoped eventually to be a volunteer art teacher. He looked forward to being reunited with his son and hoped to teach him the artistic skills that he had learned, believing that they would be beneficial in coping with Ben’s epilepsy. He had never had a positive drug test in the past 10 years of his incarceration and had only been involved in two fights in all that time, both of which resulted from his being attacked by Aboriginal inmates.
27. In the letter of 9 December 2001 (Exhibit A3.9), he wrote that he wished to add a few points that had come to mind in the interim. He stressed that his offending behaviour was now definitely in the past. “In the beginning I stole things to eat because we where [sic] a poor family then as I got older that bad habit just kept coming back and all the troubles with it”.
28. He contrasted his behaviour with that of the “vicious outlaw type of criminal” saying that he was more of the “Robin Hood” type, continually feeling the need to help others with their problems. He again stressed that he would never physically hurt anyone: “the armed robberies I was charged with didn’t come from me getting worse as I got older, they came from me getting lazy and I just needed the money quickly to pay for my own bills and an increasing gambling addiction which struck me once card machines where [sic] introduced into all the pubs”.
29. He had worked very hard at his rehabilitation, he continued, and through hard work had become a very good and keen artist and painter. He had some good ideas about many other ways in which his art could reach a wider audience, such as directly painting onto coffee tables, souvenir objects and making designs for signs and t-shirts. He hoped to go into business in that domain with his father and also hoped that his son would take an interest in art as well.
30. He was fully rehabilitated, he claimed: “my goals are all set towards family, community and the sick, as far as never committing another offence is concerned, all I can say is I wouldn’t even drive a car without a license”.
31. His statement of February 2007 (Exhibit A3.1) sought to update the tribunal on events following his release from jail in 2002.
32. His plan had been to stay out of trouble and concentrate on his art so that he could arrange to have an exhibition at the Global Gallery in Paddington. The managing director of that gallery, Joe McGuinness, was interested in his work. He had accumulated about 50 paintings but planned to continue until he had 100 works ready for an exhibition.
33. He had thought that after his release he would be living with his father and step-mother near Mudgee, where they had bought a house. When his father called to collect him at the jail, however, he told the applicant that the purchase had not yet been settled and it was not possible to move in. His father helped him to find a boarding house in Darlinghurst, but he stayed there only two days, and after a stressful week with a former woman friend at Kirrawee, he contacted a woman named Sharon, who agreed to let him stay at her apartment at Villawood for a few weeks. A relationship then developed which lasted until December 2002 when he was able to move to his father’s house at Mudgee. Two days after his arrival there, however, he was telephoned by Jenny Whitehouse, a neighbour of Sharon’s, who told him that someone had set fire to a chair in her yard. As he had become friendly with Jenny while with Sharon, he went to stay with her to see if he could help with her problems. A pattern of harassment continued, however, which included vehicles being driven onto Jenny’s front yard to do “wheelies”, setting fire to a tree in her back yard and to a large pine tree in her front yard. The applicant believed the perpetrators were Sharon’s two delinquent sons. He stayed on at Jenny’s house to take care of her, and after about two months another relationship developed. He resumed painting, but found it hard to concentrate because of all the harassment. There were threatening telephone calls and Jenny’s dog was poisoned. Her daughters moved away because of the continued strife. The police were unable to act without evidence, but offered to drive past the house at intervals. Eventually he confronted Sharon about the problem, with the result that the harassment diminished.
34. Nevertheless, in early 2004 he resumed heroin use. “Ever since I had been released from gaol people were offering me heroin. I was offered it on the trains, in bars – ‘Mate, do you want a 50? Do you want a 20?’”. He was taking the drug three or four times a week and on one occasion exchanged a painting for four deals of heroin. In early 2004, he broke into an equipment shed at a basketball field at Villawood, stealing food, drinks and a microwave oven to sell to purchase heroin. He attempted a house-breaking but was frightened away by a neighbour.
35. On 10 December 2004, he pleaded guilty and was sentenced to 24 months’ imprisonment. He served 12 months and was released on parole on 22 May 2005. Jenny visited him regularly and after his release he returned to live with her, still using heroin.
36. The applicant was taken into immigration detention on 16 August 2005. This was his second time in detention, as he had spent about five months at Villawood in 2002. While in detention after August 2005, he was offered treatment for his heroin addiction. His treatment was and is supervised by Dr Geoffrey Needham, who prescribes subutex, apparently a more successful treatment than methadone. “While I no longer used heroin, I did smoke cannabis from time to time when I was out of detention as I found it relaxed me. I do not want to smoke cannabis anymore because I want to stay out of trouble. I do not want to break any laws, even if it is riding a pushbike without a helmet”.
37. His conviction for larceny in December 2005 resulted from his stealing a computer game because he lacked money to buy Christmas presents for his nephews and niece. For that offence he was imprisoned at Junee until June 2006.
38. The applicant believes he has suffered from agoraphobia all his life. “I was first diagnosed with agoraphobia while I was in Silverwater jail serving the sentence for the 2004 offences. I spoke to a female psychologist but I do not remember her name”. He is anxious about how he would cope in England and did not know where he would be able to obtain subutex or treatment for his agoraphobia. He was anxious to remain with Jenny his family and friends. If allowed to remain in Australia, he would continue with his painting and work towards an exhibition. A friend of his father’s, Stuart Organ, had offered him a job working as a removalist if he were released. He intended to take up that position and work on his painting after hours. At the hearing, he said that he had committed his first armed robbery because he was using heroin at the time. It had taken over his body and he had become desperate. Most of his offences resulted from his heroin addiction, except for the theft of the computer game in 2005.
39. Asked the names of the “three good friends” he said he had lost because they had been murdered for being white, he named two, a Tony Kakorakis and a man known as “Aub”. He said that the exercise yard at Lithgow was a very dangerous place where many people had been killed.
40. He attributed the fact that he had not worked since the age of 18 to his heroin addiction, agoraphobia and the need to remain with Leanne (Ben’s mother) at all times over an eight-year period because she was epileptic and he needed to be there in case she fell. “She needed full-time care, I considered”. He said he would have loved to work but it would not have lasted because of his agoraphobia.
41. Joe McGuinness had expressed interest in his paintings in 2000 or 2001, and although he had not had any contact with Mr McGuinness since, he believed he would still be able to arrange an exhibition at the Global Gallery. In the meantime, he wanted to keep the collection together rather than mount a quick exhibition, supplementing it with some carvings. He predicted that such an exhibition would be “very successful”.
42. Mr Organ was a school friend he had not seen for 24 years. The applicant believed he could do the work Mr Organ had offered, although he needed a knee reconstruction and had a bad back.
43. He said he has been with Jenny for four and a half to five years and they intend to marry. He has been taking subutex for his heroin addiction and they ride bicycles together.
44. He does not have regular contact with his father now that he lives in Mudgee, but telephones him. He has had no contact with his mother since he was 15 as he could never forgive her the childhood she gave him.
45. Now that his son Ben has his own young friends, it is hard to keep in contact with him and he had not been able to obtain his telephone number. They had now resumed contact, however.
46. The official visa cancellation warning he had received in 2002 (G pp22-41) had come as a shock to him. He had re-offended, but that was because he had been through a hard time. He had been on and off drugs and had fallen back into heroin use in 2004. Things were different now, however, as subutex had proved to be a lifesaver.
47. Asked why none of his written statements mention the abuse he allegedly suffered as a child at his mother’s hands, and which features prominently in the psychological evidence, he replied that he had told some of the psychologists about it, perhaps eight out of 10, but some of them had been in a hurry and he had not told them. The applicant did not, however, answer the question. His evasiveness on that point links with certain other unsatisfactory aspects of his evidence. He said that three of his good friends had been murdered while in jail but could name only two. His depiction of the Lithgow exercise yard as a kind of killing field for Caucasians is implausible. He did tell the psychologist Mr Jolly about feelings of anxiety resulting from having been attacked and having seen others beaten up in jail, but he apparently did not mention the alleged murders to any of the four psychologists who have interviewed him since then, or to Dr Needham.
48. Although he is undergoing drug rehabilitation, Dr Needham noted as recently as February 2007 that he was still regularly using cannabis. The applicant admitted in February 2007 that he smoked cannabis before entering detention because he found that it relaxed him.
49. He claimed not to wish to smoke cannabis any more, but that aspiration has yet to be put to the test. It should be noted that in his oral evidence Mr Rombouts agreed that cannabis use can exacerbate psychiatric problems.
50. The applicant’s claim to be a long-term agoraphobia sufferer forms a central part of his explanation for his criminal record and lack of employment history. Yet he does not appear to have told Mr Rombouts or any of the other psychologists about it and there is no corroboration for his claim anywhere in the expert evidence.
51. In addition, at the hearing he said that all his crimes, except for the computer game theft, stemmed from his drug addiction. Yet he told the probation and parole officer, Ms Glover, in 2001 that he never felt he had a problem with drugs or alcohol, and rather that gambling had always been his main problem. In his statement of 9 December 2001, he wrote that initially he stole things to eat because they were a poor family, an implausible reason given that his father was a plumber working for a large company who rose to the position of project manager. In the same statement he said that he progressed to more serious crimes because he was becoming lazy and needed money quickly to pay his bills and to fund his gambling addiction.
52. He also told Mr Jolly that after adopting the life of a petty thief he turned to armed robbery because he had become lazy and wanted to raise money more quickly and that he was not under the influence of drugs when he committed the crimes.
53. While I do not think the applicant’s evidence should be entirely discarded, his tendency towards exaggeration and opportunistic fabrication dictates a certain caution in evaluating it.
Psychological evidence
54. The earliest psychological appraisal of the applicant is in Ms Glover’s parole report (Exhibit A3.10) referred to earlier. The report noted that the applicant felt he had never had a problem with drugs or alcohol but that gambling had been the main motivation behind his offending behaviour because he needed money to repay gambling debts. He had not participated in any treatment for gambling problems. On his psychological state Ms Glover had this to say:
…
Enquiries with the psychologist in the MMTC [Metropolitan Medical Transient Centre], revealed that in 1998 Mr Green was given a provisional diagnosis of social phobia and it would appear that, according to Service records, he has suffered from this disorder since he was a child. This disorder manifests itself in the form of anxiety attacks and a fear of crowded spaces. The physiologist is of the opinion that this disorder has diminished to some degree and she has been having regular contact with Mr Green to address both this issue and issues of anger and stress management.
…
55. On 4 December 2001, Ms Danielle Matsuo, a forensic psychologist with MMTC reported that the applicant had been receiving ongoing contact with psychological programs at MMTC since October 2001. Before that he had quite significant contact with psychology at Lithgow Correctional Centre.
56. Self-report indicated that he had experienced quite severe forms of anxiety in the past, possible social phobia as a child and symptoms of post-traumatic stress disorder (PTSD) after being assaulted in custody. “Whilst he describes himself as ‘painfully shy’ Mr Green has recently shown much improvement in his socialisation skills and appears more at ease in groups”.
57. Ms Matsuo concluded that “Mr Green is currently well-adjusted and realistic about his future. He does not present as a high risk of re-offending” (Exhibit A3.11).
58. Dr Hugh Jolly reported on the applicant on 7 January 2002 (Exhibit A3.14). The applicant had outlined his history, stating that his mother had been “pretty cruel” and that he had begun petty crime at about the age of 10. At about 12 he was assessed by a probation or juvenile justice officer, but did not tell them about his home circumstances, saying he had probably been afraid of the consequences if he had revealed what went on. He related how he had survived on the streets as a petty thief and had turned to armed robbery to raise money more quickly. He had not been on drugs when he offended. He had been prescribed anti-depressants by Dr Koller, the visiting psychiatrist at Goulburn, having suffered a period of depression because he had seen people getting beaten up in the exercise yard. Dr Jolly thought that the dose of anti-depressant medication the applicant was currently receiving was no longer justified.
59. Dr Jolly saw the applicant as a “dependent personality”, rather than having a “true anti-social personality disorder” (p2). He did not suffer from a major mental illness such as schizophrenia, bipolar illness or an organic psychosis. He had, however, suffered a depressive episode that had been properly treated by an experienced forensic psychiatrist. There was a risk of relapse into depression if the applicant were to be removed to England (p6).
60. Mr Joel Rombouts, a clinical psychologist, interviewed the applicant at Villawood on 26 February 2007 and had also spoken to him on the telephone a couple of times. In his view, the applicant experienced very extreme levels of trauma at the hands of his mother, compounded by living on the streets from the age of 15, and as a result developed PTSD. This had led to a dissociation reaction, alteration in his sense of identity and a disturbance in the memory of events occurring during periods of dissociation. His dysfunctional behaviours had been compounded by significant heroin usage, which has the effect of eroding moral reasoning. Mr Rombouts thought one of the tests suggested possible frontal lobe damage, but noted that there were no medical reports or self-reports of any traumatic brain injury other than blows to the head by his mother.
61. Mr Rombouts also thought the applicant fitted the criteria for a diagnosis of a borderline personality disorder. “It is my opinion that Mr Green’s criminal behaviours were generally committed in a significantly dissociative state of mind and under the influence of amphetamines, alcohol and heroin” (Exhibit A3.6 p5).
62. As to the future, Mr Rombouts continued,
…
In spite of the diagnosis it is my belief that Mr Green is not beyond redemption. He is not essentially sociopathic but keeps falling into old patterns. For all the reasons discussed above, he does not have sufficient insight nor the normal moral reasoning to be otherwise at this time. … (p6).
…
63. He noted that the applicant had on many occasions expressed remorse for his actions “but he has been damaged to such an extent that he has not found his own way out of his convoluted turmoil” (ibid). Mr Rombouts proposed a rehabilitation plan based on drug rehabilitation, including the continued use of subutex, and psychotherapy directed to his traumatic earlier years. Important factors in a successful rehabilitation program would be obtaining employment and a stable social situation, which could be provided by his current de facto. At the hearing, Mr Rombouts concluded that the applicant had come out of a heroin-amphetamine haze. He was making a slow recovery but had potential. Though directly asked at the hearing to list the disorders from which he believes the applicant to be suffering now, Mr Rombouts did not mention agoraphobia.
64. The various psychological assessments before the tribunal differ in material respects, such as the role of drugs in the applicant’s offending behaviour, whether he is still suffering from PTSD and whether he has a personality disorder. At the hearing, Mr Rombouts seemed a trifle dismissive of the earlier assessments, saying that prison psychologists and psychiatrists did not have the time to undertake deep therapy because of the vast demands on staff. Yet Ms Matsuo reported that the applicant had received regular counselling and Dr Jolly’s report is at least as detailed and thorough as that of Mr Rombouts. It is difficult to derive much assistance from this part of the evidence, other than to conclude that the applicant has psychological problems, whether produced by drug abuse, incarceration, an unhappy childhood or a combination of all three. He has not to date been able to shake off anti-social or self-destructive patterns of behaviour but is not a hopeless case. He could be rehabilitated and his development of his artistic capacities, as well as his subutex program are positive steps, as is the possibility of employment and of continuing his relationship with Jenny Whitehouse.
65. It does not appear that the applicant undertook any vocational courses while in prison, but the MMTC education officer, Mr Alex Karpin, reported favourably on 4 December 2001 about the applicant’s commitment to his art work (Exhibit A3.12).
Other evidence
66. It was notable that none of the people most closely involved with the applicant – his father, his son, his step-mother, his sister and his de facto – gave evidence at the hearing. Mr Ben Green and Ms Whitehouse apparently attended the hearing, however.
67. A short letter from Mr Stuart Green (Exhibit A3.3) dated 1 February 2007 was tendered. It seeks to explain why the applicant did not attain Australian citizenship even though both his parents did, and states that he has no close relatives in England and no contact with anyone outside Australia. Visa cancellation would be “unethical and inhuman”. Mr Green expresses the view that the applicant has good prospects as an artist and notes that he had spoken to Mr Stuart Organ who was willing to offer the applicant employment on his release. He did not mention the abuse allegedly suffered by the applicant at his mother’s hands.
68. A longer statement from Ms Whitehouse (Exhibit A3.2) describes how they first met and outlines the problems caused by Sharon’s sons.
69. After a time, the applicant returned to drugs and Ms Whitehouse noticed that a few of his paintings had vanished. When she asked him where they were, he could not answer. Then about a week later he told her that he had bought heroin with the proceeds. He then ended up in trouble again and served a year in prison.
70. Ms Whitehouse states that the applicant brought about improvements in her health and her whole life. He takes over the full running of the household whenever her asthma is active, as on some days she must use a nebuliser for up to two or three hours. She sees him as an honest and good man who is very proud of his achievements especially with his art, and in everything he does. “Even though there were a couple of bumps in the four years we have been together, our lives together have been the best years of my life, simply because of the man Russell”. If his visa cancellation is affirmed “I will follow him to the North Pole if need be”, but she would suffer from not being able to see her mother and her daughters.
71. Mr Stuart Organ in oral evidence affirmed his offer of employment as a removalist. He said he would train the applicant as a removalist, a packer, a pre-packer and in loading and unloading. The training in all of those roles would take up to 12 months. Mr Joe McGuinness gave oral evidence expressing his continued interest in arranging an exhibition of the applicant’s paintings at the Global Gallery, of which he is managing director. For such an exhibition, an artist would need to produce a set of about 20 good paintings, 10 large and 10 of medium size. Advertising and other expenses amount to between $8,000 and $10,000 and are shared equally by the gallery and the artist. The gallery retains a commission of 30 to 40 percent on all sales.
72. When he first saw the applicant’s works in 2001, he was impressed by their consistent style, the indigenous influences and the stylised subjective approach. The work has potential, notably for printing on t-shirts. He noted that he had not had any contact with the applicant since 2001.
73. Dr Geoffrey Needham in oral evidence adopted his report of 6 February 2007 (Exhibit A3.5), which has been referred to above. At the hearing, he said that he had first seen the applicant at Villawood in 2005 and had seen him at least monthly since then. He was responding well to subutex and showed no side effects. There would be a high relapse risk if he were not able to obtain subutex and he should continue to take it for at least two more years under medical supervision. He acknowledged that cannabis use can exacerbate psychological problems but had not observed any change in the applicant since he had been released from jail.
74. A letter dated 5 December 2001 from Mr Ray Noonan (Exhibit A3.13), an alcohol and drug counsellor at MMTC, attested to the applicant’s participation in counselling at the alcohol and other drug unit. He had displayed a keenness for having a greater understanding of drug use and drug dependence. He had made progress in custody and understood that if he was to gain control of his life, he needed to undertake a rehabilitative program. Of course, the applicant went on to relapse and re-offend after that letter was written.
75. An undated letter from Ms Leigh Vo (Exhibit A3.19), who works for a Chester Hill pharmacy, stated that the applicant had been a subutex patient of theirs from June to November 2006. She considered him to be a polite and considerate man when he entered the shop. He had always shown respect to the workers and to other customers.
76. The applicant’s son Benjamin, now aged 22 or 23, provided no evidence, written or oral, in relation to the application, although he did attend the hearing. At the time of the applicant’s first consideration for visa cancellation in 2002, however, he did write a letter to the department stating that he had been living with his grandparents since the age of four. While his father had been in prison, he had visited him only about three times because his father and grandfather did not think it was a good place to take him. He said he missed his father and looked forward to the day when he would be free so that they could do some of the things that father and son do. It hurt him to think of the possibility that his father would be sent back to England as the things he had hoped for over the years would end, leaving him wondering how his father would cope in a strange country that he did not know (G pp35-36).
Application of the Law and Findings of Fact
77. As was stated above, the first issue for me to decide is whether, pursuant to s 501(6)(c)(i) and (ii), the applicant passes the character test having regard to his past and present general conduct. The application of the character test is by reference, firstly, 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…
…
In ReMsumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192, the Tribunal said, at paragraph 37:
…
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).
…
78. 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(1) not to cancel the applicant’s visa, notwithstanding that the applicant does not pass the character test. In so doing, I must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.
79. 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)).
80. 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.
81. In this case the applicant concedes that he does not pass the character test because of his “substantial criminal record” within s 501(7).
82. I must therefore consider whether to exercise my discretion under s 501(1) to decide, nevertheless, whether 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:
…
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.
…
83. 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.
…
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.
…
84. Examples of what the Government views as serious offences are set out in paragraph 2.6. This includes, in subparagraph (e), armed robbery, and 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.
85. 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
86. 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, which is binding on this tribunal, states that crimes of violence against persons (para 2.6(f)), armed robberies (para 2.6(e)) and serious thefts (para 2.6(l)) are to be treated as very serious. In this case, the applicant has been convicted of several multiple offences including armed robbery involving violence and serious theft. He has been before the courts twice for armed robbery, and in 1995 he was convicted on three counts of armed robberies committed after he had escaped from prison. The fact that he committed them while at large, in the sentencing judge’s view, made them “a particularly [serious] matter” (G p126). The applicant denies ever having used violence in the course of an offence, and indeed in other comments at various times he has portrayed himself as belonging to a distinctly better class of offender than his violent fellow-inmates in penal institutions. But Shadbolt J rejected that denial at the time, finding that violence was used against victims in at least two of the robberies and that “each was a particularly violent example of that species of criminal activity” (G p126). The applicant’s criminal conduct can only be categorised as very serious.
87. The next issue for the tribunal to consider is the risk of recidivism.
88. Paragraph 2.10(b) of Direction No 21 states that a non-citizen with several previous convictions in Australia should be considered as having an increased risk of recidivism in light of that past behaviour. That directive clearly applies in the present case, as the applicant has been before the criminal courts 24 times in 29 years, most recently in December 2005 when he was sentenced to four months’ imprisonment for larceny.
89. Direction No 21 also states that a non-citizen who commits a further offence after having been warned previously about the risk of cancellation is of concern for that reason (paragraph 2.10(a)). The applicant was so warned in 2002 and acknowledged in writing that he fully understood that any further convictions for any offences might lead to his visa being reconsidered for cancellation (G p71). In his 9 December 2001 letter to the department he claimed to be fully rehabilitated and was emphatic that he would never re-offend, even in the most trivial way. Yet he went on to re-offend, not just once, but four times, coming before the courts on two separate occasions in 2004 and 2005.
90. The psychological reports by Ms Glover, Ms Matsuo and Dr Jolly in 2001 and 2002 spoke favourably about his remorse, his rehabilitation and his future prospects, but he nevertheless relapsed. Further, Dr Needham’s test in February 2007 showed that the applicant was continuing to use cannabis.
91. In his March 2007 report, Mr Rombouts concluded that the applicant “is not beyond redemption”, but that he “keeps falling into old patterns” and “does not have sufficient insight nor the normal moral reasoning to be otherwise at this time”.
92. He concluded that if the applicant were given the chance to participate in a comprehensive drug rehabilitation and psychotherapy program, “he would, in the balance of probability, no longer offend”. But holding a job would be a critical part of his recovery (part Exhibit A3, p6).
93. Mr Organ has offered the applicant employment as a packer and furniture removalist. It should be noted, however, that he suffers from back and knee problems and has had no previous experience in that kind of work. Indeed, he has never held a job in his entire adult life. Although he developed his artistic talent while in prison, he undertook no vocational courses. Mr Organ’s offer must be regarded as implicitly conditioned on good performance, and in the circumstances that is a very large assumption.
94. One must conclude that while the applicant has made progress in overcoming his heroin addiction, the evidence shows that he still has a long way to go before his rehabilitation can be regarded as complete. In the circumstances there must be a significant risk of recidivism.
95. 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 is perhaps better 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. 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 prospect of punishment does.
96. Ms Higgins cited a 2004 study on the deterrent effect of capital punishment (J Chan, D Oxley, “The deterrent effect of capital punishment: A review of the research evidence”, No 84 Contemporary Issues in Crime and Justice, Oct 2004, 1) as illustrating the lack of available evidence on the deterrent effect of visa cancellation on non-citizens. There is of course no question of capital punishment in this case and I would be the last person to defend that practice. The tentative nature of the authors’ conclusion is notable, however. They write that the issue is still a vexed one and that the studies showing no deterrent effect have not been subjected to the kind of critical scrutiny that findings supporting the opposite conclusion have undergone.
97. The researchers also predict that recent research supporting the deterrence hypothesis will revive interest in the capital punishment debate (at p11). Further, they do not suggest that there has been any challenge to findings that increased rates of arrest and conviction have a more powerful effect (at p6). Visa cancellation, while not intended as a punishment, as was pointed out above, seems more analogous to those processes than to capital punishment as regards any deterrent effect. Consequently I do not accept that the evidence referred to in Re Sam and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003 has no relevance.
98. In the present case it can be argued that setting aside the decision under review would send an undesirable message to non-citizens contemplating criminal activity. It is not, however, a decisive factor here.
Expectations of the Australian Community
99. 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.
…
100. 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 edn. Sydney 1994, 314-315; I Brownlie, Principles of International Law, 5th edn. 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). 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).
101. At the same time, there is a general 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]).
102. Ms Higgins referred to Re Muirson and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1270 at para 83 where Deputy President Forgie accepted that the community tolerates those who have difficulties in their lives. The tribunal had affirmed the cancellation in that case but, it was submitted, that was mainly because of the applicant’s dishonest failure to disclose prior convictions. I do not read the passage that way. To me it seems that the tribunal was saying while the community would be understanding about the applicant’s problems, it “does not tolerate his actions of turning to armed robbery” (ibid). The present applicant has repeatedly been convicted of that crime.
103. The present applicant has a long criminal record including several serious crimes, extending over 24 years. He has been an unalloyed burden to Australian society and has made only limited progress towards rehabilitation. In such a case, I think the community would expect that the offender should be removed from Australia.
The Best Interests of the Child
104. The third primary consideration is the best interests of the child. In this case there is no child whose interests need to be considered.
Other considerations
105. 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 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.
106. The applicant sought to distinguish Re Pull and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 868, in which the visa cancellation was affirmed, on the basis that Pull had been unable to show that he could make a positive contribution to Australian society and had grown up in the United Kingdom. That Mr Green left England at the age of nine is a material fact to which I give weight. But it should be noted that in Pull the applicant was a boilermaker-welder who had an established employment record, while Mr Green does not. He has the prospect of mounting an exhibition at Mr McGuinness’s gallery if he can raise the funds necessary to pay his share of the advertising and other expenses, but it is not clear if he has ever sold a painting other than the few he told Ms Whitehouse he had disposed of for a few hundred dollars to buy heroin. His prospects of supporting himself from income as an artist must be regarded as speculative at this stage.
107. Ms Higgins acknowledged that her client lacked the history of rehabilitation that was a key factor in Re Williams and Minister for Immigration and Multicultural Affairs [2007] AATA 1012, but submitted that was because he did not realise that he needed treatment in order to rehabilitate. But his drug history was being investigated from 2001, if not earlier, and he actively rejected the suggestion that he had a drug problem. That was at a time when he said he was not using heroin and presumably his rejection of drug rehabilitation was a conscious choice made with a clear mind.
108. The applicant has no contact with his mother and little with his father. He had only minimal involvement in his son’s upbringing and until recently he did not even know how to contact him. On the other hand, as Ms Higgins pointed out, he has a de facto relationship of four years’ standing with Jenny Whitehouse. She has been supportive towards him although she was disappointed when he re-offended in 2004 and 2005. Nevertheless, she describes the relationship as a strong one and it is clear that she would suffer some emotional hardship if the applicant were removed to England. However, she has said that if his visa cancellation is affirmed, “I will follow him to the North Pole if need be” and there does not appear to be any obstacle to her doing so, although she would miss not being able to see her mother and her grown daughters. Ms Whitehouse was, of course, well aware of the applicant’s criminal record when she commenced the relationship with him.
109. The applicant has an aunt (his father’s sister) in England, though he says he does not remember her. While his aunt could not necessarily be expected to welcome the applicant into her home, it is not improbable that she would be able to give him some guidance on becoming re-established in the United Kingdom. The skills he has developed as a painter would be as useful to him there as they are here, and indeed the larger market might be to his advantage. He has no business ties within Australia. Nothing in the evidence suggests that he would be unable to obtain subutex in the United Kingdom and thereby continue his drug rehabilitation.
110. The issue of rehabilitation has already been discussed above and for the reasons given it does not strongly weigh against affirming the decision under review.
111. I conclude that the primary considerations of community protection and expectations outweigh the other considerations in this case. The decision under review must be affirmed.
I certify that the 111 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: ...............[sgd].................................................................
Renee Wallace, AssociateDate of Hearing: 7 May 2007
Date of Decision: 7 June 2007
Solicitor for the Applicant: Ms M Magnusson
Counsel for the Applicant: Ms S Higgins
Solicitor for the Respondent: Mr G Johnson
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