Hargraves and Minister for Immigration and Citizenship

[2007] AATA 1696

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1696

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/2585

GENERAL ADMINISTRATIVE DIVISION        )

Re             Michael Paul HARGRAVES

Applicant

AndMinister for Immigration and Citizenship

Respondent

DECISION

TribunalProfessor GD Walker, Deputy President

Date27 August 2007

PlaceSydney

DecisionThe decision under review is set aside and the matter remitted to the respondent for reconsideration on the basis that the discretion be exercised in favour of not cancelling the applicant’s visa.

..................[sgd]............................

Professor GD Walker
  Deputy President

CATCHWORDS

IMMIGRATION – applicant’s visa cancelled for failure to pass the character test due to substantial criminal record – exercise of discretion – applicant’s conduct regarded as very serious – applicant given numerous chances to reform and live within the law as well as an oral warning from the department about visa cancellation, however, applicant’s subsequent actions reflect a very substantial and practical recognition of remorse, reform and rehabilitation – risk of recidivism in this case found to be very low – while deterrence is a material factor in this case it does not carry as much weight as it normally would – strong evidence of reform and rehabilitation - community would think it appropriate to extend the applicant one further chance to live an honest life – decision under review is set aside.

…

RELEVANT ACT/S:

Migration Act 1958: ss 499(1), 499(2), 499(2A), 500(6B), 501, 501(2), 501(6), 501(7), 501G(1)

CITATIONS

Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321

Re Msumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192

Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780, 781

Al-Kateb v Godwin (2004) 219 CLR 562

Robtelmes v Brenan (1906) 4 CLR 395

Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054

OTHER REFERENCES:

Direction No 21

…

REASONS FOR DECISION

27 August 2007	Professor GD Walker, Deputy President
Summary

1.      The applicant applied for a review of a decision by the respondent to cancel his transitional (permanent) visa.

2. On 8 June 2007, a delegate of the respondent cancelled the applicant’s visa on the ground that he did not satisfy the character test set out in s 501 of the Migration Act1958 (the Act).  The applicant sought review of that decision on 20 June 2007 by application to this tribunal.

3. At the hearing, the applicant was unrepresented, while the respondent was represented by Ms Alice Linacre, solicitor of Clayton Utz, instructed by Mr Peter Berg for the respondent. The documents before the tribunal comprised the documents produced pursuant to s 501G of the Act (“the G documents”), taken into evidence as Exhibit A1, together with the other documents tendered by the parties at the hearing. The applicant, together with two of his witnesses, gave oral evidence in person while four others, one being his father, gave evidence by telephone.

Issues

4.      The issues for decision in this application are:

(a)whether the applicant passes the character test in s 501(2) of the Act, or fails because of his substantial criminal record within the meaning of ss 501(6)(a) and (7)(c) and (d) of the Act;

(b)If the applicant does not pass the character test, whether the tribunal should exercise its discretion to set aside or affirm the delegate’s decision to cancel the applicant’s visa, applying ministerial Direction No 21.

Relevant Law and Policy

5. 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; …

…

6. “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;

…

7.      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.

8. 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.

Basic facts

9.      The applicant Michael Paul Hargraves was born in South Africa on 16 July 1967 and is a citizen of that country.  He first arrived in Australia as a migrant on 6 January 1979 at the age of 11, returning to South Africa for five weeks in February-March 1982 and from November 1984 to January 1985.  On 1 September 1994 he was granted a transitional (permanent) visa by operation of law.

10.     He was convicted on three counts of false pretences on 31 January 1997 at Southport District Court, Queensland and was sentenced to three years’ imprisonment with a non-parole period of nine months on each charge.  On the same date he was convicted on two counts of breaking and entering a dwelling house with intent, three counts of stealing, 26 counts of false pretences and several other offences, being sentenced concurrently to two years’ imprisonment with a non-parole period of nine months on each charge.

11.     He was convicted of several social security offences at Southport Magistrates’ Court on 21 February 1997.  The total amount of the fraud involved exceeded $25,000.  He was sentenced to three months’ imprisonment on each charge, the sentences to be served concurrently.

12.     On 29 April 2003 at Newtown Local Court, New South Wales, the applicant was convicted of using a false instrument with intent and obtaining money by deception and was sentenced to concurrent terms of nine months with a non-parole period of six months.

13.     On 20 September 2006, he was convicted of failing to appear in accordance with a bail undertaking and goods in custody, for which he was sentenced to imprisonment for six months and nine months respectively.

14.     On 24 March 2003, he was convicted at Southport Magistrates’ Court of attempting dishonestly to obtain property and possessing tainted property, for which he was sentenced to nine months’ imprisonment and six months’ imprisonment respectively.  Both terms of imprisonment were wholly suspended.

15.     Three of the applicant’s convictions resulted in terms of imprisonment exceeding 12 months.  On 29 May 2001, he was convicted on four counts of supplying a prohibited drug (ecstasy) and sentenced to 12 months’ imprisonment, wholly suspended.  He was convicted of using a false instrument with intent and obtaining money by deception at Central Local Court on 20 September 2006 and sentenced to concurrent terms of 15 months’ imprisonment with a non-parole period of nine months.

16.     He was warned on 30 July 1997 under s 200 of the Act that if he received any further criminal convictions he would be reconsidered for deportation.

17. A delegate of the minister cancelled the applicant’s visa under s 501 of the Act on 8 June 2007. The applicant applied to this tribunal for review of that decision on 20 June 2007.

The applicant’s evidence

18.     In the statement he adopted at the hearing (Exhibit A2), the applicant admitted full responsibility for his actions.  He explained that his mother had left him in an orphanage in South Africa when he was 10, until his father brought him to Australia when he was 11.

19.     His first conviction was for stealing a vacuum cleaner when he was 18 and it resulted from yielding to peer pressure in an attempt to attract group approval.  He said he learned a lot from that brush with the law and that his father was also glad that he was apprehended.  It was another seven years before he re-offended.

20.     The death of his mother in South Africa in 1991 depressed him greatly and he was twice convicted for prescribed concentration of alcohol driving offences.

21.     When he went to work in Queensland in 1997, he fell in with some undesirable people who he met through letting rooms in his house to them.  He served nine months in jail as a result.  That offence, like his drug conviction in 2000, stemmed from his attempts to impress others.  A person he knew from the past had repeatedly pressed him to supply a single ecstasy tablet.  After repeatedly refusing, he eventually yielded and supplied this person with four tablets over a period of months.  Unknown to him, the person was under police surveillance for drug offences and the conversations had been recorded.  He pleaded guilty to the charge and his sentence was wholly suspended.

22.     In an attempt to get his life back on track, he acquired a used Audi TT car under a false identity, as he had been blacklisted for credit purposes four years earlier as a result of failing to make repayments on his credit card while in custody.  He paid a $20,000 deposit (legitimately obtained) and kept up the payments, and now owes only $5,000 of the original $58,000 debt.  Nevertheless, while he was awaiting trial on those charges, he “panicked” and before finishing an existing sentence of periodic detention, he absconded to Western Australia, where he obtained a position as assistant manager in a major fitness goods supply store and lived with his father.

23.     Following discussions with his father and friends, he decided to return to New South Wales to surrender voluntarily to the police and face all outstanding charges.  The police, he said, had been “dumfounded” by his action when he reported to them.

24.     He said that the magistrate told him that if he had faced the charges when he had committed them, he would have been treated differently, but in the event he returned to prison for nine months.  He was prepared for that as it was his decision, and knew that it would finally put his reckless past behind him.  It did not occur to him that by surrendering to the authorities he might lose his permanent residency.

25.     He had always looked on Australia as home and if allowed to remain in Australia, he would continue to live honestly with his father as he did in Perth.  He has had a number of offers of employment and has received overwhelming support from his friends.

26.     He says he does not know anyone in South Africa and believes he has worked through the bad times in his life and wishes to return to his friends and the community.

27.     At the hearing he said he had a good employment record from 1985 onwards, having been unemployed for only six to eight months in all.  That was the period when he committed the social security frauds in Queensland.  He no longer had any contact with the undesirable group with which he had then associated.  He agreed that the social security offences took place over a period of seven to nine months, and that they might have continued if he had not been caught.

28.     He had bought an Audi TT car because he needed it to commute to work.  Although he conceded that a cheaper car would have served the purpose, he said that he wanted a better one as he was working in the automotive industry.  He had obtained two mobile phones under the same false identity as he had used to buy the car, but had paid for them in full.

29.     His father had moved to Perth before he did and was unaware when the applicant arrived to stay with him that he was a fugitive from justice.  After his arrival he did tell his father, who told him to return and face the charges.  He eventually decided to return because he felt he had to deal with his past.

30.     Asked why the person to whom he had sold the ecstasy tablets would have pressed him in particular to obtain them for him, he said that the person had just asked and it was a one-off transaction.  He had never done that again and had never taken drugs himself.

31. He recalled the July 1997 deportation warning, but said that the problem was that s 200 was different from s 501. He knew he was not an Australian citizen but was unaware of the character test. If he had known, he would have made sure he became an Australian citizen. He did apply for citizenship, but after he had sent the documents to the department, nothing was sent back to him.

The applicant’s character witnesses

32.     In his written statement of 8 July 2007 (Exhibit A3), Mr Gavin Yates, principal of Yates Traders Pty Ltd of Somersby, New South Wales, stated that he has known the applicant for at least 10 years.  The applicant had demonstrated the highest integrity as a valued friend, consistently offering his time and support for any personal or professional matters over that time.  He had come to terms with his “past reckless actions” and looks forward to the day he can finally be clear of those times.  Since 2000 he has undergone a great deal of personal growth and has lived without incident for the past five years.  He had returned voluntarily to face those outstanding charges, which showed that he has taken full responsibility for his past actions.

33.     Mr Yates had not known that the applicant was not Australian until the current proceedings.  Since his mother’s death 15 years ago, he had no contact with South Africa, and his only living relative, his father, is in Australia.

34.     At the hearing Mr Yates said the applicant had been impressionable in his early days but had shown remorse and contrition after 1997.  His actions before then had been evil, but his offences in 2001 were not committed out of malice.  He wished he had known more about the applicant’s life at that stage and his attempts to get his life on track, so he could have helped him.

35.     He knew that the applicant had moved to Western Australia.  He had talked with him frequently and advised him to return to face the charges.  In the end he had come to Mr Yates’s house before turning himself in.

36.     Mr Paul Reynolds describes the applicant as his oldest and closest friend (Exhibit A4).  They began high school together in 1981 and had remained best friends since.  After describing the applicant’s difficult upbringing, he said the applicant had indicated that his turbulent times were behind him, and his behaviour over the last six or seven years showed that was so.

37.     In cross-examination Mr Reynolds said he was aware of the applicant’s criminal history, although he had only learned about the social security fraud in the last couple of weeks.  He had not chosen to discuss all of his criminal background with Mr Reynolds, but the families were nevertheless close and Mr Reynolds’s mother regarded him as a second son.  She describes him as “a survivor”.

38.     Over the past three or four months Mr Reynolds has been visiting the applicant and has noticed a big change in his general outlook.

39.     Mr Nigel Lawrence, managing director of Lawrence Interiors Pty Ltd of Southport, Queensland, has known the applicant for eight to 10 years and over time has come to regard him as a trusted friend.  He has watched the applicant mature and find direction over the time he has known him, and believes that in the last five years, he has really found his feet and taken charge of his life.

40.     Mr Lawrence was aware of the applicant’s “colourful” past, but regarded his behaviour as “silly and reckless”.  Having paid for his crimes, he is fully aware of the time he has wasted and regrets his actions.  He had turned himself in to face his criminal actions from five years before.  Mr Lawrence saw that as the action of a man finally ready to take responsibility for his own life.

41.     Mr Lawrence was aware of parts of the applicant’s criminal history, but had not known about his drug conviction.

42.     Mrs Jacquie Fahim is the mother of Paul Reynolds.  She stated (Exhibit A7) that she has known the applicant since he was a little boy.  She has much love for him and regards him as a second son.  She can vouch for his character and has always found him to have the highest of manners and to behave appropriately.  He has always treated her family with much respect.

43.     Mrs Fahim does not think one should have any further concerns about the applicant’s behaviour, “as he has been on the straight and narrow for many years now.  His crimes date back to an earlier period in his life that he has no connection to these days”.

44.     At the hearing, Mrs Fahim said the applicant had been in her house many times and he had been a good friend to her son Paul.  She had known him for about 29 years.  She was sad and disappointed about his criminal convictions, about which she had learned some six or eight months ago.

45.     Mr Walter Reynolds is the father of Paul Reynolds and has known the applicant for the best part of 30 years (Exhibit A8), having seen him grow up with Paul.  He had always found the applicant to be a courteous and respectful young man right through to the present.

46.     He knows that Michael had a hard start in life and believes some of his earlier behaviour could have been the result of it.

47.     At the hearing Mr Reynolds said the applicant is a hard worker and that he has no issues with his character.  He was not, however, aware of any of the applicant’s criminal convictions.

48.     Mr Chris Reynolds is an arborist who manages his own business at Dubbo, New South Wales.  He has known the applicant for over 20 years, over which period he has come to be accepted as part of the family.  Mr Reynolds believes that the death of Michael's mother when he was quite young contributed to his unstable childhood.  He believes that the applicant has learned a very valuable lesson from his past mistakes and has matured with age.

49.     He says (Exhibit A6) that Michael has many sincere friends who are willing to support and help him through this difficult time, which in itself attests to the sincerity of his own dealings with his friends.

50.     The applicant's father, Mr John Hargraves, of Mount Lawley, Western Australia, also emphasised the applicant’s difficult start in life by being abandoned in South Africa as a child.  Mr Hargraves had been determined to give him a better chance at life than his own mother had.

51.     He believes that the applicant has put his misdeeds behind him and will not re-offend.  “I know Michael has run against the law on several occasions, and there was a time a long time ago when I feared he was getting in real trouble.  I know the crimes my son has committed in the past and has paid his debt in full on those occasions” (Exhibit A9).  His actions in returning voluntarily to face his remaining sentence after all those years proved that he is a responsible man and that the discrepancies in his character were behind him.

52.     He states that the applicant has no appreciation of African culture and would have nowhere to go once he landed in South Africa, nor would he know any direction where he might be safe for the night or how to obtain employment in a society of instability, violence and unemployment.  “My advice to Michael is to go straight to the Australian Embassy and camp out on our steps and beg for refuge as that would be the closest place that he would know as home” (Exhibit A9).

53.     His crimes had not involved violence and were committed at a time when the applicant had very little regard for himself after his mother died.  He is held in the highest regard by those who know him and Mr Hargraves has been inundated with offers of help from concerned friends.

54.     Character references were also received from Tony Silvestra (Exhibit A10), Mathew Ingram (Exhibit A11), Joe Fahim (Exhibit A12) and David Monk (Exhibit A13).

Respondent’s submissions

55. On behalf of the minister, Ms Linacre submitted that the applicant fails the character test in s 501(2) because of his being sentenced to terms of imprisonment exceeding 12 months.

56.     As regards the exercise of the discretion, from the age of 18 the applicant had engaged in serious criminal conduct, leading on to more serious charges later.  The social security frauds involved a sum exceeding $25,000 over a period of several months.  They might have continued had his conduct gone undetected.

57.     His record extended over a period of more than 20 years and involved several sentences to custodial terms.  Nevertheless, he re-offended with multiple violations involving dishonesty.

58.     He had evaded an arrest warrant by moving to Western Australia, as far away as possible, an offence that was very serious in itself, and had returned only after two years.  His drug conviction also showed his disregard for the law and was to be regarded as very serious.

59.     As regards the risk of recidivism, his long criminal history did not reveal a pattern indicating that his conduct would change for the better.  He had called character witnesses, but Paul Reynolds had been unaware of the conviction for social security fraud at the time he had written his statement (Exhibit A4), and Walter Reynolds was not aware of any of the applicant's criminal convictions.

60.     The applicant blamed his conduct on having mixed with the wrong crowd, but his character witnesses had been present in his life the whole time and had offered positive advice and support.  Nevertheless, he had re-offended and it was likely that his criminal behaviour would not cease.

61.     Paul Reynolds had said the applicant had changed over the past three or four months, but he has had many chances over the last 30 years to refrain from criminal conduct.  His behaviour pattern shows that any expressions of remorse do not mean that he will not re-offend.

62.     He had been warned of the risk of deportation in 1997 but had nevertheless re-offended.  Though he might suffer some hardship if he were returned to South Africa the primary considerations outweigh that factor.

Application of the Law and Findings of Fact

63. As was stated above, the first issue for me to decide is whether, pursuant to s 501(6)(a), the applicant passes the character test having regard to his substantial criminal record. The application of the character test is by reference, first, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:

…

The concept of “good character” in section 501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that.  It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry.  The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is “not of good character” within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry…

…

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).

…

64.     On the other hand, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness (Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780 at 781).

65. Secondly, I am required to have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If I decide that the applicant does not pass the character test, I must consider whether to exercise the discretion in s 501(2) 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.

66. In this case the applicant does not pass the character test in s 501(2) of the Act because he has a substantial criminal record. He has been sentenced to terms of imprisonment of 12 months or more (ss 501(6)(a) and (7)(c) of the Act) and has been sentenced to a number of terms of imprisonment totalling two years or more (ss 501(6)(a) and (7)(d)).

67. I must therefore consider whether to exercise my discretion under s 501(2) to decide, nevertheless, whether to set aside or affirm the decision under review. 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.

…

68.     Paragraph 2.3 sets out the primary considerations:

…

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:

…

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.

…

69.     Examples of what the government views as serious offences are set out in paragraph 2.6.  This includes, in subparagraph (a), drug-related crime and in paragraph 2.6(l), serious theft (including while-collar crime).  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.

70.     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 similar offence”.

Protection of the Australian Community

71.     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 in paragraph 2.6(a) that drug related crimes and, in paragraph 2.6(l) serious theft are to be treated as very serious.  In this case, the applicant was sentenced to three years' imprisonment on 31 January 1997 for various charges of false pretences, breaking and entering among others.  His concurrent three-month sentences for the social security offences were to be served concurrently.  Among the other convictions already noted was the sentence of 12 months’ imprisonment he received on 29 May 2001 for supplying the four ecstasy tablets.

72.     As Direction No 21, paragraph 2.7, indicates, the sentenced imposed for a crime is to be taken as an indication of the seriousness of the offender’s conduct against the community.  On that basis, the applicant’s worst offences were those for which he was convicted in 1997 and that resulted in the three-year sentence.  The social security frauds were also very serious, but the concurrent three-month sentences imposed for them suggest that the court must have taken the view that there were mitigating circumstances reducing the gravity of the offences.

73.     The drug conviction was also very serious, and while I accept that the applicant may have yielded only under persistent pressure from a former friend, the fact that a drug user persistently pressed the applicant to supply him suggests that the applicant must have been known to have some kind of contact with a drug trafficker.

74.     As against that, I note that several of his sentences were wholly suspended, that he did not breach parole (although he did fail to complete one periodic detention sentence), and that his conduct in custody was good, leading to his being discharged at the earliest opportunity.  In all he served only two custodial sentences of nine months and six months respectively.  None of his offences involved actual or threatened violence.

75.     His use of a false identity to purchase a car, as Magistrate Moore observed (G p109), “is not something that one could specifically refer to as identity fraud in the true sense, for you endeavoured to maintain payments of the items which you’ve purchased under the false name”.  Although he left the state before completing the payments, he did repay all but about $5,000 of the $58,000 loan.

76.     Nevertheless, subject to those qualifications, the applicant’s conduct must be regarded as very serious.

77.     The next issue for the tribunal to consider is the risk of recidivism.  The applicant's criminal history as an adult commenced in 1985 and his last offence was in 2003 (with conviction in 2006).  He has been given numerous chances over that period to reform and live within the law.

78. Most importantly, he was warned orally and in writing by the department in July 1997 that he risked deportation if he re-offended, and signed an acknowledgment that he had received that warning (G p119). His attempt to minimise the significance of that warning by saying that it was issued under s 200 rather than s 501 is absurd. There is no doubt that he realised he was in danger of losing his right to live in Australia if he attracted any more convictions. It is only in a rare case that an offender will be able to overcome the adverse effect of seriously re-offending after such a warning.

79.     In this case, however, there are two matters to note.  First, the warning was issued in 1997, during the worst period of the applicant’s criminal history.  Although he has re-offended since, his crimes have been of a lesser degree of gravity, as is reflected in the sentences imposed.

80.     More importantly, in 2005 the applicant took the most unusual step of returning to New South Wales from Western Australia and surrendering to police for the express purpose of facing all outstanding charges against him.  He did that knowing that he was likely to face a term of imprisonment as a result.  Had he not done so, he might have escaped detection indefinitely in Western Australia.

81.     That action reflects a very substantial and practical recognition of remorse, reform and rehabilitation.

82.     As his record contains no offences of violence, there is no need for anger management courses as part of the rehabilitation process.

83.     His evidence at the hearing appeared to be essentially truthful, although there was some tendency towards glibness and an insufficient recognition of the need for scrupulous accuracy in giving sworn testimony.

84.     A number of his character witnesses say that he has “paid his debt to society” and that they have observed a substantial change in his attitudes towards taking proper responsibility for his actions.  Of course, one does not repay a debt by incurring a still greater expense, as the applicant did by earning custodial sentences.  I accept, however, that by that expression people mean that the offender has served the sentences imposed and has conducted himself well in the process.  There is also good reason to believe that his change in attitude for the better is genuine.

85.     He has an offer of regular employment and the assurance of support from his father and from a large network of friends.  On the basis of all the evidence I consider that the risk of recidivism in this case is very low.

86.     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.

87.     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, para 2.11 of the direction plainly contemplates that the prospect of it will operate to deter similar conduct in much the same way as the threat of punishment does.

88.     As Callinan J observed in Al-Kateb v Godwin (2004) 219 CLR 562 at 659, “Deterrence may be an end in itself unrelated to a criminal sanction or a punishment. Deterrence can, for example, be an end of the law of tort”.

89.     Deterrence is a material factor in this case.  In light of the evidence of reform and rehabilitation mentioned, however, I do not think it carries as much weight as it normally would.

Expectations of the Australian Community

90.     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.

…

91.     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, 11^th edn. Sydney 1994, 314-315; I Brownlie, Principles of International Law, 5^th 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).

92.     In Al-Kateb, Hayne J observed that in one of its earliest decisions (Robtelmes v Brenan (1906) 4 CLR 395), the High Court had held that “it is an attribute of sovereignty that every nation state is entitled to decide what aliens shall or shall not become members of its community” (219 CLR at page 632).

93.     Callinan J added that entering aliens are taken to know and accept “as a term of admission” that restraint to the extent necessary to enable deportation can be imposed on them (at p658).

94.     At the same time, there is an expectation in the community that migration law will be administered fairly and humanely (Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at [34]).

95.     Normally the community would consider that a non-citizen with the applicant’s criminal history had forfeited any right to remain in Australia and that visa cancellation and removal should ensue.  In this situation, where there is strong evidence of reform and rehabilitation, and the applicant is a mature person who has been in this country since the age of 11, the community might well think it appropriate to extend the applicant one last chance to live an honest life.

The Best Interests of the Child

96.     This is no child whose interests need to be considered under this heading.

Other considerations

97.     With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, “it is appropriate that  these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations”.  These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; and any evidence of rehabilitation and any recent good conduct.

98.     The applicant is not married to, or in a de facto relationship, with an Australian citizen or permanent resident.  He has lived in Australia since the age of 11.  He has no family in South Africa and his only living relative is his father, who lives in Perth.  His father would suffer some emotional hardship if the applicant were removed to South Africa, though I do not accept Mr John Hargraves’s claim that it would constitute “a death sentence” for him.  Mr Hargraves's extremely negative portrayal of current conditions in South Africa also seems somewhat overdrawn.  According to the London Sunday Express (August 5, 2007) growing numbers of British people are emigrating to South Africa.  A London-based relocation services company operated by a former immigration control officer is in the process of opening a new office in South Africa.

99.     Nevertheless, the applicant would suffer some hardship if his visa were cancelled.  His lack of Afrikaans language skills would make it difficult for him to find employment in sales, the field in which he has always worked.

100.   While the applicant has a network of friends and business contacts in Australia, he does not have any business links as such with Australia.

101.   There is, however, strong evidence of rehabilitation, including the fact that he voluntarily surrendered to the authorities after years of living in the community without attracting adverse police attention.

102.   In my view, on the whole of the evidence and on balancing the applicable considerations, this is an appropriate case for exercising the discretion in the applicant’s favour.  The decision under review is set aside and the matter remitted to the respondent for reconsideration on the basis that the discretion be exercised in favour of not cancelling the applicant’s visa.

I certify that the 102 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President

Signed:   ......................[sgd]...............................................
               R. Wallace, Associate

Date/s of Hearing:  9 August 2007
Date of Decision:  27 August 2007
Representative for the Applicant:     Unrepresented
Solicitor for the Respondent:             Ms Alice Linacre, Clayton Utz