Hall and Minister for Immigration and Multicultural Affairs - [2000] AATA 834

DECISION AND REASONS FOR DECISION [2000] AATA 834

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V00/445

GENERAL ADMINISTRATIVE DIVISION       )
           Re      JOHN HAROLD HALL
  Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent

DECISION

Tribunal Deputy President DP Breen, Presidential Member

Date19 September 2000
PlaceBrisbane

Decision The Tribunal sets aside the decision under review and in substitution therefor determines that the discretion under Section 501 of the Migration Act 1958 be exercised in favour of the applicant John Harold Hall and that he be permitted to remain in Australia.

(Sgd) DP BREEN
PRESIDENTIAL MEMBER
CATCHWORDS
IMMIGRATION - visa cancellation - abhorrence of crime - risk of recidivism - ties to Australia.

Migration Act 1958 s 501

REASONS FOR DECISION

19 September 2000 Deputy President DP Breen, Presidential Member

This is an appeal against a decision by a delegate of the Minister for Immigration and Multicultural Affairs dated 10 August 1999 to cancel the applicant's Transitional (Permanent) Visa under Section 501 of the Migration Act 1958.
This case was heard before me on 11 and 14 September 2000 in Melbourne. Written Submissions were received on 15 September 2000. The applicant, John Harold Hall, was represented by Mr T Hurley of Counsel, instructed by Messrs Armstrong Ross. Mr C Rawson of the Australian Government Solicitor's Office represented the respondent Minister.
Oral evidence was taken from the applicant; Joyce Hall, the applicant's younger sister; Sandra Hood, the applicant's elder sister; Arthur Anastasiou, the applicant's brother-in-law; and Teresa West and James Heywood, long-time friends of the applicant. Mr Bernard Healey, a Psychologist also gave evidence at the hearing.
The following documents were taken into evidence:

Exhibit 1 "G" Documents
Exhibit 2 Supplementary Documents
Exhibit 3 Statement of John Harold Hall dated 6/7/00
Exhibit 4 Statement of John Harold Hall dated 9/8/00
Exhibit 5 Statement of Gladys Coulston
Exhibit 6 Statement of Joyce Hall
Exhibit 7 Statement of Sandra Hood
Exhibit 8 Statement of Thomas Leiper
Exhibit 9 Statement of Marilyn Rooks
Exhibit 10 Statement of Helen Lawson
Exhibit 11 Statement of Sally Heywood
Exhibit 12 Statement of Teresa West
Exhibit 13 Statement of Stacey Heywood
Exhibit 14 Statement of Deborah Peterson
Exhibit 15 Statement of Arthur Anastasiou
Exhibit 16 Statement of John Harold Hall dated 10/2/98
Exhibit 17 Record of interview with Mr Hall dated 27/3/96
Exhibit 18 Office of Public Prosecutions Report
Exhibit 19 Report of Mr Healey dated 29/5/96

Mr Hall is 45 years of age and arrived in Australia from England with his family at the age of 12 years. All of his immediate family now resides in Australia. He returned to England briefly in 1976 where he met his cousin Lynda Turner. In 1984 Ms Turner came to Australia with her three children and her husband. Six weeks after entering the country she left her husband to move in with Mr Hall. They were in a defacto relationship for 12 years. In 1986 their daughter Jennifer was born. In 1996 the applicant was charged with a number of counts of incest, involving his eldest stepdaughter Jayne. He was convicted in November of 1996 and sentenced to five years imprisonment.
Mr Hall's visa was cancelled under Section 501 of the Migration Act 1958. The convictions in 1996 and subsequent sentence mean that he has a substantial criminal record as defined in subsection 501(7) and so fails the character test. Therefore, the Tribunal must consider whether to exercise the discretion in favour of the applicant, notwithstanding that he fails the character test. Ministerial Direction No 17 – Visa Refusal and Cancellation under Section 501 applies to the exercise of the discretion.
There are three primary considerations under this Direction – protection of the Australian community, expectations of the Australian community and, where the applicant is involved in a parental relationship with any children, the best interests of those children.
Considering, firstly, the protection of the Australian community, the Tribunal must have regard to the nature and seriousness of the crimes committed, the risk of recidivism and the general deterrence effect that the cancellation of the visa will have on other non-citizens.
The crime of sexually abusing a child is an extremely serious one, particularly when it involves the breach of trust involved in a parental relationship. The applicant was convicted of incest against his eldest stepdaughter when she was between the ages of 13 and 17. The applicant did plead guilty to those offences.
Whilst in prison, the applicant has undertaken courses in Aggressive Behaviour Management, Sex Education, Adult Relationships, Social Skills and Gender Attitudes. The applicant has shown genuine remorse for his actions and given his participation in these courses has come to understand his behaviour to a greater degree. Mr Healey, a Psychologist who has been in practise for 40 years and works mainly in the area of Corrective Services, has seen the applicant on a few occasions. It was his view that the applicant is remorseful for his actions and is endeavouring to understand why he committed the offences and to take steps to ensure that he does not offend again. Mr Healey stated that points in favour of the applicant being rehabilitated are his supportive family, his willingness to complete further courses, and his acceptance of his actions and their wrongness. Mr Healey said that Mr Hall's behaviour was evidence of a disorder which could be effectively managed and treated. Significant success had been had in recent years with these sex offender programmes and if Mr Hall participates in the continuing programmes, then it was Mr Healey's view that the risk of re-offending was minimal. Mr Hall also has an offer of accommodation from friends if he is allowed to remain in Australia and has an offer of full-time employment from his former brother-in-law. If released he will be on parole and will have reporting and monitoring conditions to abide by. One further issue is the fact that both the applicant's daughter and the complainant in the proceedings against him, visited him in Melbourne after the charges had been laid and before the trial. There is no suggestion that Mr Hall acted in an inappropriate manner on those occasions, nor that the girls nor their mother were concerned about their safety at that time. Given all these considerations it is the Tribunal's view that the risk of recidivism in this case is sufficiently low to ensure the protection of the Australian community.
The question of general deterrence is not of great weight in this matter. This is not a case where it was a notorious crime and there were no co-offenders. As such, the cancellation of the visa is unlikely to be known outside of Mr Hall's family.
The secondary primary consideration is the expectations of the Australian community. These expectations are that a non-citizen will obey Australian laws. Where there is a risk that this trust will be breached, or the crime which the person is convicted of is so abhorrent, it may be appropriate to cancel the visa. While this crime falls within the category of abhorrent it is not so abhorrent that the Australian community would consider the offence only, to the exclusion of attempts at rehabilitation by the applicant himself and the question of hardship which would be suffered by the applicant and his family. Therefore, in the Tribunal's assessment the expectations of the Australian community do not preclude the continuance of this visa.
The final primary consideration is enlivened in this case as Mr Hall has a 14 year old daughter, Jennifer, who is an Australian citizen. Since around August 1999 she has had no contact with her father, and although he would like to re-commence contact with her, he does not know where she lives. As such, it cannot be said that her best interests require that Mr Hall remain in Australia, as Jennifer is not dependent upon him for financial or emotional support. However, until August 1999 Jennifer was in regular contact with him and even visited him on her own a number of times while he was on bail before the trial. As such, her best interests cannot be said to dictate Mr Hall's removal from the country to ensure her protection.
Mr Hall's stepdaughters, Jayne and Susan are in a similar position to Jennifer. They have no contact with the applicant and do not rely on him for support. However, despite the applicant's inappropriate behaviour towards them, both visited him in Melbourne before the trial and obviously were unconcerned about their safety. It is the Tribunal's view that although Jayne and Susan may not wish to have anything to do with the applicant as a result of his past behaviour, it is not necessary for him to be removed from Australia to serve their best interests and ensure their protection. Therefore, this primary consideration neither assists nor hinders the applicant's bid to remain in Australia.
The primary considerations in this case are fairly evenly balanced.
There are a number of secondary considerations which must also be taken into account, although one on its own, cannot outweigh a primary consideration. The pertinent considerations are as follows:

(a)the extent of disruptions to the non-citizen's family, business and other ties to the Australian community;
(b)the degree of hardship which would be caused to immediate family members lawfully resident in Australia;
(c) family composition of the non-citizen's family, both in Australia and overseas; and

(d) evidence of rehabilitation and recent good conduct

As stated in evidence, the applicant's family resides in Australia. The applicant has not returned to the United Kingdom since he was 21 years of age and has lived in Australia since he was 12 years old. Thus his ties to Australia are very strong. Under Section 200 of the Migration Act a person is only liable to deportation if they commit a deportable offence within the first 10 years of residence. This shows that the Parliament set a definitive cut-off period, outside of which a person's ties to Australia would be deemed to be too strong and too entrenched to justify deportation. No such limitation exists under Section 501.
Whilst the Tribunal must pay heed to the Federal Court decision of Minister for Immigration and Multicultural Affairs v Gunner (1998) 156 ALR 306, and accepts that the Sections provide two different sources of power to the Minister, the legislation must be read in its entirety. In assessing a person's ties to Australia, if under Section 200, 10 years residence is considered significant, then the 33 years that the applicant has resided in Australia must be given a great deal of weight. His entire family lives in Australia. His parent's had a very turbulent marriage and since their separation the remaining members of the family have been very close. The breaking of these ties and forced relocation to a country with which he has no real ties would cause extreme hardship.
The applicant has made extensive contributions to the Australian community. He ran his own dry cleaning business for a number of years and provided employment for others. He has been a member of the Knox's Club in Melbourne for approximately 8 years and been instrumental in community activities with that Club, including the provision of entertainment to local retirement villages. Mr Hall has an extensive support network through this Club and his friends there support his application to remain in Australia. The applicant has an offer of work and accommodation if he is released and allowed to stay in Australia. There is clear evidence that the applicant is making obvious efforts to rehabilitate himself and is focusing on what he can put back into the community in the future.
The primary considerations are fairly balanced and the secondary considerations are in the applicant's favour. For these reasons, the Tribunal sets aside the decision under review and in substitution therefor determines that the discretion under Section 501 of the Migration Act 1958 be exercised in favour of the applicant and that he be allowed to remain in Australia.
One final issue to mention is the applicant's contention that as Mr Hall arrived on an entry permit in 1967, it is not a visa which is susceptible to cancellation under Section 501. The decision of Finkelstein J in Hall v. Minister for Immigration and Multicultural Affairs [2000] FCA 415 was very clear on this point and it is a decision which the Tribunal is not only bound to apply, but is one with which the Tribunal concurs.
I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member
Signed:         Emma Oettinger
  Associate
Date/s of Hearing  11.9.00 and 14.9.00
Date of Decision  19.9.00
Counsel for the Applicant        Mr T Hurley
Solicitor for the Applicant         Messrs Armstrong Ross
Counsel for the Respondent
Solicitor for the Respondent    Mr C Rawson, Australian Government Solicitor's
  Office