Harvey and Minister for Home Affairs (Migration)
[2018] AATA 3962
•22 October 2018
Harvey and Minister for Home Affairs (Migration) [2018] AATA 3962 (22 October 2018)
Division
GENERAL DIVISION
File Numbers
2018/4370
Re
Simon Harvey
APPLICANT
And
Minister for Home Affairs
RESPONDENT
DECISION
Tribunal Member M Kennedy
Date 22 October 2018 Place Adelaide The decision under review is affirmed.
............................[Sgnd]....................................
Member M Kennedy
CATCHWORDS
MIGRATION – Mandatory visa cancellation under s 501(3A) of the Migration Act 1958 (Cth) – Whether visa cancellation should be revoked – Character test – Direction No. 65 – Substantial criminal record – Protection of the Australian community – Best interests of minor children – Expectations of the Australian community – Other considerations – Strong ties to Australia – Decision under review affirmed.
LEGISLATION
Migration Act 1958 (Cth)
Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation under s 501CA
REASONS FOR DECISION
Member M Kennedy
DATE 22 October 2018
Mr Harvey came to Australia from the United Kingdom as an infant, but did not take out Australian citizenship despite his mother likely being an Australian citizen. Mr Harvey has an extensive and largely uninterrupted criminal history throughout his adult life involving offences of violence, burglary and high-range drink-driving. I have decided, upon application of the Ministerial Direction (as elaborated upon in these reasons) that despite Mr Harvey’s long-standing connection with Australia, the unacceptable risk of harm he poses to the Australian community calls for his visa to remain cancelled.
BACKGROUND
Mr Harvey held a Class BF transitional (permanent) visa. On 3 November 2017, Mr Harvey’s visa was cancelled under section 501(3A) of the Migration Act 1958 (the Act). At that time, Mr Harvey was serving a sentence of full-time imprisonment for an aggravated assault and damage to property.
Mr Harvey has been a prolific offender, with his national police certificate running to seven pages listing in excess of 100 convictions. For the purpose of s 501(7)(c) of the Act, it is significant that among his many convictions and sentences are a number of sentences each of 12 months or more, including a sentence imposed on 14 March 2003 of 12 months for entering a building with intent to commit a crime, stealing and obtaining property by deception, along with other sentences imposed on that occasion for very serious driving offences. On 17 March 1993 Mr Harvey was sentenced to imprisonment for 18 months for burglary, and on 19 August 1984 for 18 months for burglary. As such, Mr Harvey has a ‘substantial criminal record’ for the purposes of s 501(3A)(a)(i) of the Act. The consequence of Mr Harvey serving the sentence of full-time imprisonment within the meaning of s 501(3A)(b) at the time the delegate considered whether to cancel his visa was that the delegate was obliged to cancel it.
Mr Harvey applied for the revocation of the visa cancellation on 24 November 2017 under s 501CA of the Act. On 23 May 2018, a delegate of the Minister decided not to revoke the decision to cancel the visa, finding that Mr Harvey failed the “character test”, and that there was not another reason why the original decision to cancel the visa should be revoked.
Mr Harvey was initially incorrectly notified of that decision, but upon lawful notification of the decision on 1 August 2018, Mr Harvey applied to the Tribunal for review of the decision not to revoke the visa cancellation.
DOCUMENTARY EVIDENCE
The Tribunal has before it the documents produced by the Minister pursuant to s 500(6F) of the Act, and a bundle of material obtained by the Minister’s representatives under Tribunal summons. The documents lodged under s 500(6F) will be referred to as the ‘G Documents’ (as they incorporate the documents served on Mr Harvey pursuant to s 501G(2) of the Act), with each folio as ‘G1’ and onwards, and the summonsed documents referred to as ‘AGS Documents’ for convenience to match the folio references appearing on each page i.e. ‘AGS1’ and onwards.
Mr Harvey lodged documentary evidence with the Tribunal on 18 and 19 September 2018. I have marked Mr Harvey’s documents as ‘A1’ and so on.
During the hearing I heard from four witnesses produced by Mr Harvey: Mr McQuillan (statement is A10), Mr Weller (statements are A2 and A3), Ms Nannup (statement is A4) and Mr McCamley (statement is A5).
LEGISLATIVE FRAMEWORK
Section 501 of the Act provides for the cancellation of a visa on character grounds.
As mentioned above, where the Minister is satisfied that a person does not pass the “character test” because a person has a “substantial criminal record” and the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of a State, the Minister must cancel the visa: s 501(3A) of the Act.
The character test is set out at s 501(6). Also as mentioned above, I find on the basis of the convictions referred to at paragraph three above, and also as set out at G16.5, G17.4 and G18.7 that Mr Harvey does not pass the character test because he has a substantial criminal record: ss 501(6)(a) and 501(7)(c) of the Act. A person has a “substantial criminal record” if the person has (among other things) been sentenced to a term of imprisonment of 12 months or more.
Under s 501CA(4), the Minister may revoke that visa cancellation if the person makes representations in accordance with an invitation to do so within a prescribed time, and the Minister is satisfied that the person either passes the character test or there is another reason why the original decision should be revoked.
As mentioned above Mr Harvey made that request on 24 November 2017, but a delegate of the Minister declined to revoke the visa cancellation. This is the decision before the Tribunal, and the issue for me to decide is whether to revoke the visa cancellation.
The visa cancellation may be revoked if I decide that Mr Harvey passes the character test as defined by s 501. As mentioned above, I find that Mr Harvey does not pass the character test on account of his substantial criminal record.
I may (in the sense of must)[1] also revoke the visa cancellation if I am satisfied there is another reason why it should be revoked: s 501CA(4) of the Act.
[1] Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337 at [35] and [38].
MINISTERIAL DIRECTION 65 (THE DIRECTION)
Section 499 of the Act authorises the Minister to give written direction to a body, such as the Tribunal, having functions or powers under the Act, about the performance of its functions and the exercise of powers. I must comply with directions issued under this provision.
Ministerial Direction 65, at Part C, engages directly with the performance of my functions and exercise of my powers in reviewing Mr Harvey’s revocation request. I am to treat:
·The protection of the Australian community from criminal or other serious conduct;
·The best interests of minor children in Australia; and
·The expectations of the Australian community
as primary considerations. Each of these terms is elaborated upon in the Direction.
Other considerations must also be taken into account, namely: the strength, nature and duration of Mr Harvey’s ties to Australia; international non-refoulement obligations; the impact on Australia’s business interests; the impact on victims; and the extent of impediments to Mr Harvey if he is removed from Australia.
Primary considerations are generally to be given greater weight than other considerations.
The Direction provides further guidance to me in terms of the objectives of the Act and the character provisions, and the objective of the Government in protecting the community from harm as a result of criminal activity, including maintaining public confidence in the character assessment process.
The Direction sets out principles asserting Australia’s sovereign right to determine whether non-citizens of character concern are allowed to remain in Australia, and that permission for non-citizens to remain in Australia is a privilege conferred in the expectation that non-citizens are, and have been law-abiding and respectful of Australia’s institutions and will not cause or threaten harm to individuals or the community.
The relevant principles against which I am to approach the exercise of my powers in this matter are that:
·The community expects that the Government can and should cancel visas of non-citizens if they commit serious crimes in Australia;
·A non-citizen who has committed a serious crime should generally expect to forfeit the privilege of staying in Australia;
·Sometimes criminal offending or other conduct is so serious, and the harm that would be caused if it were to be repeated is so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances even strong countervailing considerations may be insufficient to justify not cancelling the visa;
·Australia has a low tolerance of any criminal or other serious conduct by people who have been participating or contributing to the Australian community only for a short period of time; however, the community may afford a higher level of tolerance in relation to a non-citizen who has lived in the Australian community for most of their life or from a very young age; and
·The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a cancellation for minor children and other immediate family members in Australia are considerations in the context of determining whether the visa should be cancelled.
With compliance with these principles in mind, I turn to consider the particular circumstances in this review. I find it convenient to do so within the framework of the Direction.
For context, however, I will set out in general terms the evidence I received from Mr Harvey about his background and upbringing, and mention other evidence before me which provides insight into Mr Harvey’s life.
Mr Harvey told me that he was born in Wembley, England on 14 December 2017. In fact, Mr Harvey understands from his mother that he was born at Wembley Stadium.
His mother was born in Wangaratta, Victoria and was adopted by Mr and Mrs Thorsen who are now deceased. Mr Harvey had suspected for much of his life that he had indigenous heritage through his mother, but his recent enquiries have now established that not to be the case. Mr Harvey has located and provided to the Tribunal Australian Military Forces service records for Mr William Fleming, his grandfather. The records indicate that Mr Fleming undertook wartime service during WWII.
Mr Harvey’s father served with the Royal Navy and met his mother in Melbourne. His mother followed his father to the United Kingdom where they married. Shortly after Mr Harvey’s birth, he travelled to Australia with his parents. Mr Harvey said his mother had wished to return to her home country.
Mr Harvey listed three siblings in his personal circumstances form (G39). His mother’s death certificate lists her as having had five children. Mr Harvey also mentioned another sister named Annette, who he did not meet until he was an adult, and understood she had been adopted. Mr Harvey had two elder half-siblings, Wayne and Paul, from his mother’s previous marriage. Their ages are listed as unknown on the late Mrs Harvey’s death certificate. Mr Harvey met his half-brother Paul as an adult when his mother had introduced him. He understands his other half-brother, Wayne, passed away in 2013. Later in the hearing, Mr Harvey explained that he has not had regular contact with his siblings since about the year 2000, but has recently tried to re-establish contact with them on Facebook in light of his current predicament and wish to learn more about his mother’s citizenship and heritage. There is no direct evidence before the Tribunal from any of Mr Harvey’s siblings. Mr Harvey said that his siblings did not have the trouble with law that he has had.
Mr Harvey told me that he grew up in the northern suburbs of Melbourne. He said his parents had a good relationship with each other and he enjoyed a stable home environment. I noted that Mr Harvey’s father had been the informant on Mrs Harvey’s death certificate in 1993. Mr Harvey undertook secondary education at McLeod and LaTrobe High Schools, and completed year 10.
Mr Harvey committed his first offence as a minor. He was convicted of arson and attempted burglary at the Preston Children’s court in September 1982. Mr Harvey said he had set fire to a shed behind a shop and was identified by a witness when he returned to the scene. He said that he was living at home when dealt with for that offence, for which he was sentenced to 78 weeks probation. His mother supported him but his father would not have anything to do with him after that. Mr Harvey says he then stayed out of trouble for quite a while. The National Police Certificate contains an entry for a conviction of burglary the following year, on 25 October 1982 at Heidelberg, but the court result is identified as an ‘adjournment’, which may be inconsistent with a conviction. Mr Harvey was unable to recall or explain what this entry related to, and I am not sure whether this entry relates to a conviction or not.
Mr Harvey said he left Melbourne to avoid associates with whom he had started using amphetamines. In the 1990s he worked on prawn trawlers, and would often drink excessively when he would get off the boat. According to Mr Harvey, his drinking escalated in the 2000s.
Unfortunately, Mr Harvey’s whereabouts from time to time can best be tracked through the location of the courts imposing his many convictions. Mr Harvey has convictions from Nambour and Brisbane in 1989 and 1990, Heidelberg (Vic) in 1990 and 1991, Perth, Narrogin, Carnarvon and Fremantle between 1991 and 1998, Maroochydore and Mt Isa in 2002, Darwin in 2003, and Geraldton in 2005. Thereafter all convictions have been imposed in Darwin.
According to Mr Harvey and a number of his witnesses, Mr Harvey was regularly employed in Darwin as a block-layer’s labourer. Mr Harvey’s employers who gave evidence explained that Mr Harvey was unavailable for work from time to time and was presumed to be in prison.
The witness Mr McQuillan described Mr Harvey as a ‘long-grasser’. This term describes people who live in parks or bush areas in Darwin, and denotes homelessness and alcohol abuse. ‘Long-grassers’ are typically Aboriginal. I note that Police records occasionally described Mr Harvey as having no fixed abode or an address as the ‘long-grass’.
Police records indicate that Mr Harvey was suspected of being schizophrenic, or at least an alert to that effect accompanied many of the notes despatching Police to incidents. Mr Harvey told me he had never received a diagnosis of that nature and appeared surprised when I raised that observation with him during the hearing.
As a witness for the Tribunal, Mr Harvey was polite, composed and articulate, despite the gravity of the matter to be decided. He followed the proceedings closely and answered questions asked of him directly. His arguments to counter the Minister’s contentions that the visa should remain cancelled were clearly expressed and repeated. There was no indication whatsoever that Mr Harvey was labouring under schizophrenia or any other mental illness, and nor was there any such suggestion from the evidence of his employers. It is obvious that the Police in Darwin would encounter Mr Harvey from time to time in very different circumstances than I have, and as his employers had encountered him. I consider that the reference in these documents to Mr Harvey being schizophrenic is not supported by medical evidence.
I must also mention at the outset of these reasons the issue of Mr Harvey’s status as a non-citizen. In directions hearings prior to the substantive hearing in this review (including those prior to this application being made which resulted in a conclusion that the Tribunal lacked jurisdiction and the Minister thereupon renotifying Mr Harvey of the decision) I requested that the Minister’s representatives take particular care in confirming Mr Harvey’s status as a non-citizen. In this regard, Mr Harvey mentioned that he understood he was an Australian citizen and that his mother was an Australian citizen. As mentioned above, Mr Harvey has provided the Tribunal with military service records for his maternal grandfather, and a death certificate for his mother confirming that she was born and died in Victoria.
The Minister contends that Mr Harvey is not an Australian citizen, having been born outside Australia. In this regard I note that both the Australian Citizenship Act 1947 and the Australian Citizenship Act 2007 confer Australian citizenship by birth only on persons who are born in Australia. In terms of acquiring Australian citizenship by descent, an application and conferral is required under both the former and current citizenship laws. Assuming that Mr Harvey’s mother was an Australian citizen (which appears likely albeit there is a technical basis upon which she may not have been), Mr Harvey needed to apply to become an Australian citizen by descent. If this application was made after his 18th birthday a character test applied, so in that sense there was no ‘automatic’ grant or manifest entitlement. The Minister has identified records of Mr Harvey having made an application for conferral of Australian citizenship by descent in May 1985, but the records indicate that Mr Harvey did not attend the interview and the matter was finalised without citizenship being conferred. These records accord with Mr Harvey’s evidence that as a teenager he wanted to join the Army, but learned through the recruitment process that he could not do so because he was not a citizen.
I am satisfied to accept the Minister’s contention that Mr Harvey is not an Australian citizen, and held the Class BF Transitional (permanent) visa which was cancelled. I will return to the strength, nature and duration of Mr Harvey’s ties to Australia later in these reasons.
Primary consideration: The protection of the Australian community
I have regard to the Government’s commitment to protecting the community from harm as a result of criminal activity by non-citizens, and acknowledge the Government’s view that remaining in Australia is a privilege conferred on non-citizens in the expectation that they are law-abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australian community: Item 13.1 of the Direction.
I am to give consideration to the nature and seriousness of Mr Harvey’s conduct to date, and the risk to the Australian community should Mr Harvey commit further offences or engage in other serious conduct.
The nature and seriousness of Mr Harvey’s conduct
The Direction requires me to consider the nature and seriousness of Mr Harvey’s conduct, expressed to be criminal offending or other conduct.
Mr Harvey has a very lengthy criminal history and has committed offences in multiple Australian jurisdictions, however not all records of the circumstances of each offence are available to the Tribunal. For example, the lengthy sentences of imprisonment imposed on Mr Harvey in Western Australia in the 1990s are not the subject of any sentencing remarks or prosecution statements in the evidence before me.
The approach of the respondent in the hearing was to categorise Mr Harvey’s offences into different types: ‘traffic’, ‘dishonesty’ and ‘violent offences’. Within those categories, Mr Harvey was asked to provide further information about the circumstances of selected and notable instances of offending, supplemented by records from the Northern Territory Police and prosecution authorities as to submissions made at the time of sentencing. The only sentencing remarks before the Tribunal were those of Judge Woodcock of the Local Court in the Northern Territory in relation to Mr Harvey’s final conviction imposed on 2 October 2017 for aggravated assault and property damage.
A large volume of Police records were returned under summons and form part of the evidence before the Tribunal. There are many incidents documented in the records of the Northern Territory Police that did not proceed to charges being laid, let alone convictions. In particular, there is a large volume of records relating to Police attendance after receiving reports of domestic disturbances. Some of the incidents described are very serious. Some of the records arise out of a relationship Mr Harvey had with one woman in particular who demonstrably had a propensity to call the Police alleging serious assaults were taking place (for example a stabbing) but when the Police arrived the allegations would be retracted and there was no evidence to corroborate what had initially been alleged (for example, no injuries). Mr Harvey gave evidence consistent with observations made by Police that this woman would threaten to call the Police on him from time to time. This serves to demonstrate that, in general terms, records of this nature must be approached with caution, and I have done so in this matter. Mr Harvey was cautioned before being asked questions about matters set out in the Police records. I will elaborate later in these reasons the extent to which I have placed any weight on the content of observations made by Police officers in the records of the Northern Territory Police, in the absence of a corresponding conviction by a criminal court.
‘Traffic offences’
From 1997 onwards, convictions for drink-driving and driving while under licence suspension are commonplace in Mr Harvey’s National Police Certificate. Mr Harvey explained that generally such incidences occurred at the time he was working on prawn trawlers, and would drink after getting off the boat and subsequently would be detected drink-driving.
Mr Harvey believes his drinking became worse from about 2005 onwards, although the National Police Certificate and corresponding Police and prosecution documents (compiled into the Minister’s chronology), show that Mr Harvey committed high-range drink-driving offences (while disqualified from driving) in September 2002 and again in February 2003.
In relation to convictions imposed on 14 March 2003 and sentences of imprisonment, Mr Harvey was able to recall the circumstances of the offending. With respect to one incident dealt with on 14 March 2003, I have taken into account Mr Harvey’s evidence, the allegations set out in the corresponding Complaint (AGS2) and the prosecutor’s precis at AGS 283. That document states that the offence took place at the Hidden Valley Motor Sports Complex carpark. It describes Mr Harvey in a vehicle, accelerating heavily causing the vehicle’s wheels to spin (i.e. a burn-out), and spectators attempting to prevent Mr Harvey from driving or leaving. It was one of these persons that Mr Harvey was observed to have accelerated towards and struck. The victim required hospital treatment. When Police attended, Mr Harvey was obviously heavily influenced by alcohol, and while held by Police was aggressive and abusive to a number of people in the area.
Mr Harvey denied that he struck the victim with the car, and in this regard I note that Mr Harvey was not convicted of an assault or an offence causing bodily harm, and it is possible the prosecutor’s precis referring to an alleged assault did not proceed. Nonetheless, I consider that the circumstances of this offence are serious as it involved very dangerous behaviour putting members of the community at risk of injury. I note that the court imposed a sentence of six months imprisonment for driving the vehicle in a dangerous manner, six months imprisonment for the associated high range drink-driving offence, and one month imprisonment for driving while disqualified in another State, and that these sentences were imposed cumulatively. The sentence imposed by the court informs me, and accords with my conclusion that the offences were serious and were viewed as serious by the court.
In relation to the other incident dealt with by the court on that date, in February of 2003 Mr Harvey committed further offences of driving while unregistered, driving without due care and drink-driving. The circumstances of those offences are set out in a prosecutor’s precis document (AGS289) and tend to demonstrate the risk posed to the community by offences of that nature generally. Mr Harvey similarly accelerated hard through an intersection causing the wheels to spin, and the vehicle ‘fish-tailed’. Mr Harvey lost control of the vehicle which collided with a guard rail protecting an electricity tower. Mr Harvey had a female passenger who suffered severe internal injuries, including a traumatic dissecting aortic aneurism requiring medical evacuation from Darwin to Adelaide. Mr Harvey’s recollection was that it subsequently turned out that the injury was not as serious as first suspected.
Noting the seriousness of the injuries sustained by his passenger, I asked Mr Harvey why this event had not changed his behaviour. Mr Harvey’s could not answer this proposition, but explained that he felt that he could drive normally at the time. He was asked what he would think about at the time he decided to drive. Mr Harvey said that he was generally surprised he was over the limit when detected because he would not feel drunk. Mr Harvey stated that because he felt sober, he did not think he was putting the community at risk.
Generally as to drink-driving convictions, the Minister’s counsel observed that Mr Harvey had been ordered to drive only in vehicles fitted with an alcohol ignition lock device in February of 2013, but had then been convicted of driving a vehicle other than with an alcohol ignition lock in September 2014 (among other offences including drink-driving). In response to the Minister’s counsel’s question Mr Harvey confirmed that he never bothered about getting an alcohol ignition lock.
I will mention one further conviction within the category of ‘traffic offences’, although as mentioned above there are many incidents of, and convictions for drink-driving and driving while disqualified that I have not expressly mentioned. On 23 May 2017 Mr Harvey committed a further offence of high-range drink-driving, along with driving while unregistered, uninsured and disqualified. According to the prosecution precis at AGS360, on that occasion Mr Harvey was observed by Police to be driving slowly and wandering in the lane. Mr Harvey had not pulled over when directed to do so, but was approached by Police when he pulled up at a service station. Mr Harvey blew 0.188 in a hand held breath test, and later recorded as 0.170g/210L at the Darwin Watch House. Mr Harvey was sentenced to one month imprisonment and disqualified from driving for five years.
I mention this particular conviction because it is Mr Harvey’s last, having been dealt with a few months before he commenced his incarceration that continues to the present. It demonstrates that Mr Harvey’s propensity to offend in this way is a recurring feature of his entire adult life. Mr Harvey, when asked about this matter, explained that he saw there was no traffic and therefore there could be no harm in driving, but he had been disappointed in himself in committing that offence. Mr Harvey mentioned that he believed this was the only time he had driven under the influence since the incident of February 2003, but I note this is incorrect, as Mr Harvey had convictions for drink-driving imposed in June 2008, February 2013 (for multiple incidents), September 2014, and April 2016.
‘Dishonesty offences’
Mr Harvey has a large number of convictions pertaining to offences that were categorised for the purpose of the hearing as ‘dishonesty offences’ (including theft, burglary, and receiving stolen property). On reflection, that term is inapt – and to avoid doubt I have taken care to consider the circumstances of each offence categorised into that group on the evidence before me without assuming all such offences incorporate elements of fraud or dishonesty per se.
Generally as to offences within this category, and particularly Mr Harvey’s early offending in Victoria and Queensland, Mr Harvey explained that he had an amphetamine habit while living in Melbourne, and consequently decided to leave Melbourne in 1989. In response to questions asked of him by the Minister’s counsel about his motivation for committing offences such as breaking and entering and burglary, Mr Harvey explained that he committed these offences in order to obtain money for alcohol when he was not working.
Mr Harvey described the circumstances of his conviction in Nambour for unlawful use of a motor vehicle as relating to an incident where he had borrowed a friend’s car to drive into western Queensland to go hunting, another friend had driven the car into a tree, and Mr Harvey then falsely attributed the damage to theft by another person. Mr Harvey was also convicted of firearms offences in relation to that incident. Mr Harvey’s evidence about this incident, and the fact of convictions being recorded, is the totality of the evidence before the Tribunal about these events. On Mr Harvey’s account, I note that the circumstances of the offence involve a degree of dishonesty. The firearms offences, which are not further explained, involved discharging the firearm in a public place (according to the charge) and resulted in six months imprisonment.
As to Mr Harvey’s offences in Western Australia, I note these commence in August 1991 (the first being possession of cannabis with intent to supply), but involve a series of break and enter and burglary offences, among other matters, over three years. Convictions imposed in Narrogin resulted in Mr Harvey’s longest terms of imprisonment (two terms of 18 months imposed in March 1993 and August 1994). Mr Harvey told the Tribunal that he remembered ‘doing six months non-parole’ in relation to burglary in Narrogin. He said that he and a friend needed money for petrol and had broken into a service station. Later, in Carnarvon, Mr Harvey said he had needed some quick dollars and so had broken into a flat that was someone’s home, and had stolen a video player, but otherwise the premises did not contain property of value. Again, Mr Harvey’s evidence and the fact of convictions being recorded is the only evidence I have about these matters. This is unfortunate because these sentences of themselves are significant in that they create a “substantial criminal record” for the purposes of the character provisions of the Act.
I note that the court in each instance (in Narrogin and Carnarvon) imposed significant terms of imprisonment for each of the single counts of burglary charged. I conclude, therefore, on the basis of the sentence imposed, that the circumstances of the offences of burglary in each instance were serious.
There is further information before me about Mr Harvey’s convictions for theft offences in the Northern Territory.
In August 2002, Mr Harvey committed offences of entering a building with intent to commit a crime, stealing, unlawfully damaging property and obtaining property by deception.
Mr Harvey was able to recall some of the circumstances of these offences, and explained that at the time he needed some money having just returned to Darwin from a trip around Australia. He said he had broken into an electrical warehouse to steal some copper wire but had gotten ‘carried away’ and also stolen tools. AGS275 (the prosecution precis) values the amount of property stolen from the business as $8,032, and the value of property subsequently recovered as $1,160. The precis describes Mr Harvey entering the premises by smashing a bathroom window, and then cutting a large hole in a security fence to remove the property to a vehicle. The following day, Mr Harvey had attended a metal recycling firm and sold the copper cable (330kgs) after producing his own drivers licence. Police subsequently arrested Mr Harvey in Mt Isa.
In September 2005, Mr Harvey was fined for five counts of stealing. Mr Harvey was unable to recall what these matters related to, and I do not have further information before me about the circumstances.
In December 2009, Mr Harvey committed offences of damaging property and aggravated entry of a building with intent to commit an offence, stealing and possession of housebreaking implements. Mr Harvey was dealt with for these offences on 11 May 2009 and sentenced to 10 months imprisonment, suspended after four months for three years. The prosecution precis is at AGS307.
Mr Harvey’s evidence was that he was walking around drunk and wanted to make some quick dollars so he could get drunk again. He said he broke into two businesses, Beaurepairs and Cerbis Ceramics. He stole cash from the till and mobile phones. He was arrested at the bottle shop down the road. Mr Harvey conceded that he lied to police when he was arrested about where coins in his possession had come from.
The prosecution precis states that Mr Harvey entered the tyre shop by breaking a window, and entered the ceramics business by smashing a glass door. He stole phones to the value of $20 from Beaurepairs, although caused $361.80 in damage. Mr Harvey caused $500 damage to the ceramics business and stole a camera valued at $160, and coins valued at $40.
‘Violent offences’
Mr Harvey’s first conviction for an assault was imposed in Carnarvon on 25 July 1994. Mr Harvey told the Tribunal that he assaulted his partner, Ms Stacey Nannup. He said he pushed her over, but he ‘didn’t bash her’. He said that he had been fishing with Ms Nannup and her family. An argument had developed and Ms Nannup had left with her family, and then Police arrived to arrest him.
Mr Harvey was convicted of a second assault occasioning actual bodily harm in Carnarvon in February 1997– but Mr Harvey could not remember the circumstances of that offence. In response to the Tribunal’s questions, Mr Harvey said that he was convicted of assaulting someone in Carnarvon other than Ms Nannup but could not remember the details.
On 22 August 2010, Mr Harvey committed an assault on a female in Darwin. The circumstances of the offence are disturbing. The victim of the offence was not known to Mr Harvey. According to the prosecution precis, Mr Harvey had been walking around Bicentennial Park in Darwin at the Esplanade harassing other people in the park. At about midnight, the victim had walked up a path from the beach and Mr Harvey had approached her and punched her in the face with his fist after yelling ‘where have you been?’ Mr Harvey had attempted to grab the victim before she was able to run away. Numerous witnesses pointed out Mr Harvey to Police when they arrived. Mr Harvey was abusive towards Police during his arrest, spitting blood and telling them he ‘had Hep C and he hoped they got it and died’.
Mr Harvey’s account shortly after his arrest was that he could not remember hitting anyone. In his evidence to the Tribunal, Mr Harvey said that he had been looking for his girlfriend and had walked up to an innocent lady and pushed her over because he had thought she was his girlfriend. Mr Harvey denied punching the victim and said he could not remember spitting blood at Police. Mr Harvey said he had not intended to hurt anyone.
In September 2013, Mr Harvey committed a further offence of assault and threatening a victim with a weapon. The circumstances of the offence are describes at AGS335. Mr Harvey approached the victim outside Woolworths in the Darwin CBD. He accused the victim of talking with his girlfriend, and the victim replied that Mr Harvey’s girlfriend had asked him for a light. Mr Harvey then took a knife with a 12cm blade from his back pack and chased the victim, who was able to out-run Mr Harvey. Police arrested Mr Harvey in possession of the knife. He was interviewed after his intoxication wore off, and he said that he would not have done that.
In his evidence to the Tribunal, Mr Harvey said he had been having a barbecue on the beach and gone to Woolworths to buy cigarettes. When he left he saw a guy chatting to his girlfriend. Mr Harvey said that when he asked what was going on the victim was abusive towards him. Mr Harvey later said that he was sorry for the way he had behaved but the victim had no right to talk to him that way, and disagreed that the victim had only responded to Mr Harvey’s girlfriend asking for a light.
In 2017, Mr Harvey committed the aggravated assault that resulted in his incarceration and automatic visa cancellation. The sentencing remarks are before the Tribunal. According to the prosecution submission upon which the sentence was based, on 27 August 2017 Mr Harvey had been drinking cask port and beer with the victim and a witness while Mr Harvey and the victim worked on a car. At about 8.50pm, the victim and Mr Harvey had an argument because the victim had asked Mr Harvey to stop talking.
Mr Harvey punched the victim to the head five times, and the victim fell to the ground. Mr Harvey picked up a wooden chair and hit the victim over the head two to three times while the victim was on the ground and unable to fight back. Mr Harvey left the victim’s residence and used an unknown item to smash the windscreen and windows on the victim’s car.
In sentencing Mr Harvey, the Judge observed that the assault had been ‘very nasty’, and after considering Mr Harvey’s antecedents observed that it did not seem that Mr Harvey ‘was a fellow likely to comply with a suspended sentence’. The Judge imposed two sentences of six months for the aggravated assault and property damage, ordering that they be served concurrently. The Judge declined to suspend any part of the sentence.
Mr Harvey said that the argument that precipitated the assault had arisen because he had been talking about how he was disappointed in himself for the drink-driving conviction he had received a few months previously. He had been discussing the need for him to return to work and to start doing something with his life. He said that his friend had told him to shut up and then he accidentally hit him when he thought his friend was going to hit him. Mr Harvey said that the facts admitted during sentencing were the product of his friend trying to get him in trouble, and Mr Harvey said he had not started the fight. When asked if the Judge was wrong in describing the fight as nasty and largely unprovoked, Mr Harvey said he was provoked. Mr Harvey said the only reason he hit his friend with a chair was because his friend kept getting up to attack him.
Other matters
Mr Harvey has one conviction for failing to comply with a restraining order (17 June 2008, resulting in a fine of $600). As mentioned above, however, Police records from the Northern Territory also contain voluminous records of reports and contacts with Mr Harvey arising out of alleged domestic disturbances, often in association with breaches of restraining orders, in respect of multiple domestic partners. Also as mentioned above, I am conscious that Mr Harvey has not been charged or convicted of offences in relation to these matters, other than the single instance mentioned, and have noted that contacts initiated by one of Mr Harvey’s domestic partners in particular must be treated with caution based on narrations entered into the Police records.
Having made those observations, however, I also observe that some reports made by Ms Walker (the mother of Mr Harvey’s children) are persistent and refer on occasion to violence, but are accompanied by a request not to make a formal complaint. The single instance of a conviction for non-compliance with a restraining order relates to Ms Walker who had earlier been granted an emergency restraining order in circumstances where physical violence had been alleged.
Independent contacts with Police by third parties tend to corroborate that there were previously regular disturbances from time to time at Ms Walker’s home.
In March 2009, Police received a report from a third-party witness, corroborated by another witness, who stated he had observed Mr Harvey grab his then domestic partner, Ms Robbo, by the shoulders, throw her to the ground and then kick her in the head. Police records indicate that when questioned, Mr Harvey had admitted to jumping on and kicking Ms Robbo to the head. Ms Robbo is reported to have indicated to Police from hospital that she did not wish to proceed with an assault charge, and it appears no further action was taken by Police.
In August 2013, Police attended Smith Street Mall in Darwin in response to a witness reporting that a male was assaulting a woman in the mall and an ambulance was required. When police attended they found Ms Robbo lying on the ground. A witness was with Ms Robbo and informed Police that Mr Harvey had assaulted her. CCTV footage could not positively identify the participants, and the footage showed both parties assaulting each other before the male assaulted the female leaving her lying on the floor. The matter did not proceed to charges being laid.
These matters were raised with Mr Harvey during the hearing, after Mr Harvey was appropriately cautioned. Mr Harvey’s evidence was that he could not recall specific incidents taken from the Police records. In relation to records of disturbances with Ms Walker, Mr Harvey stated that his mother-in-law had interfered and this would start arguments. Mr Harvey said he never hurt the mother of his children. Mr Harvey said that he would live with Ms Walker in breach of the domestic violence order, but this was with Ms Walker’s consent as she was ‘giving him a go’.
In relation to another domestic partner, Mr Harvey said that she would call the Police on him all the time. They would argue on occasion and would always be drunk. He said eventually he had enough of this behaviour and left her.
Generally, in response to matters set out in Police records not resulting in convictions as discussed with Mr Harvey at the hearing, Mr Harvey said there were domestic arguments, but he knows he never bashed [any] of his partners. Mr Harvey said he was not the sort of person to go around bashing women.
The Minister contends that the nature of Mr Harvey’s offending should be viewed as serious because of the volume of his convictions (exceeding 100), and the history of his offending demonstrating an uninterrupted criminal history spanning 35 years. Furthermore, the Minister contends that the nature of the offences includes violent offences that present a danger to the community.
In this regard, the Minister points to assault and threatened violence against strangers in public places. It is submitted that it is open to me to have regard to reports of domestic disturbances and alleged violence towards domestic partners and in the home.
In relation to Mr Harvey’s drink-driving offences, the Minister notes the very large number of such offences and the high range of intoxication involved with many. The Minister notes that an offence in 2003 nearly killed Mr Harvey’s passenger.
Having regard to the guidance in the Direction, I consider that there are multiple instances of offending that may be considered serious on account of the presence of violence. While not all of Mr Harvey’s offending has that characteristic, it is a regular feature over time. Having regard to Police records of incidents that did not lead to convictions, I rely on this information to reinforce my view that Mr Harvey has throughout his life engaged in violent offending. The final conviction relating to the aggravated assault is the most detailed incident in the evidence before me. It was viewed by the sentencing court as a serious matter. I prefer the description of the offence presented to the court in that it was largely unprovoked to Mr Harvey’s contention that the assault was provoked.
Mr Harvey’s convictions for offences relating to burglary and theft of themselves are not offences specifically identified in the Direction as being serious in nature. I note also that the final offence of this nature was dealt with in 2010. The Direction also indicates, however, that the cumulative effect of repeat offending is to be taken into account in ascertaining the seriousness of the offending. In this regard, as detailed above, Mr Harvey has many such convictions and I view the offending of this nature to be serious.
As to Mr Harvey’s drink-driving offences, I consider that when viewed in totality the offences are very serious indeed, primarily because of the cumulative effect of repeat offending. There is also the evidence of the single instance of Mr Harvey’s passenger receiving life-threatening injuries in an accident associated with drink-driving which only underscores why I consider that the cumulative effect of Mr Harvey’s drink-driving must be viewed as very serious indeed.
I therefore accept the Minister’s contentions that Mr Harvey’s offences are serious, and the potential harm to the community through drink-driving, violent assaults and theft is real and identifiable from the evidence.
There is no evidence that Mr Harvey was warned at any stage about the consequences of further offending in terms of his migration status, but the Directions expressly provide that the absence of a warning should not be considered in Mr Harvey’s favour. It follows that I place no favourable weight on the absence of a warning to Mr Harvey in forming a view about the nature and seriousness of his offending.
No evidence was led in relation to any adverse incidents during Mr Harvey’s time in immigration detention, and he has not been convicted of any crime in connection with being in immigration detention.
The risk should further offences be committed
In accordance with the Direction, my consideration of the risk should further offences be committed incorporates cumulatively an assessment as to the potential harm to the Australian community, and the likelihood of Mr Harvey engaging in further criminal or other serious conduct.
The Directions envisage an assessment of whether Mr Harvey represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community. The tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.
As to the first limb, and as mentioned above, I have found that Mr Harvey’s conduct is serious due to its violent and dangerous nature, and the cumulative effect of repeated offending.
I consider the potential harm to the Australian community of repeated drink-driving, including high range driving, and violent assaults, including on strangers, is very high.
I am also inclined to consider in general terms that there is a risk to individuals in domestic relationships with Mr Harvey. I place limited weight on the Police records regarding extensive domestic disturbances, often alleging assault, in matters that did not proceed to charges or convictions. While considering carefully Mr Harvey’s evidence to the effect that he did not bash women or his domestic partners, I note that this is inconsistent with the fact of a conviction for assault that Mr Harvey has attributed to an assault on Ms Nannup who was then his domestic partner. Mr Harvey was also convicted for an assault on a stranger which he said took place in circumstances where he had confused that passer-by with his then girlfriend.
As to the second limb, the likelihood of Mr Harvey engaging in further criminal conduct, I have concluded that there is little cogent evidence before me to support a contention that Mr Harvey has taken any significant steps towards addressing his offending behaviour and its root causes. In this regard, it is clearly apparent that Mr Harvey’s offending is associated with substance abuse, primarily alcohol abuse.
Mr Harvey explained in his evidence that he had completed a form of substance abuse group counselling after being transferred to immigration detention on Christmas Island. He considered he had learned new tools and mechanisms to think about instead of drinking. When asked if this was the first time he had undertaken courses of this nature, Mr Harvey said he had undertaken similar course in Darwin and mentioned he had ‘put himself in rehab’ but would repeat earlier cycles [of drinking] if he ended up homeless or mixed with the wrong crowds. There is no corroborating evidence of Mr Harvey having completed rehabilitation courses, but I accept that he has, from time to time, participated in course of this nature while incarcerated. Mr Harvey has not been able to consume alcohol while incarcerated (including in immigration detention), and so there has been a long period of time during which he has not abused alcohol, but this is untested outside imprisonment or immigration detention.
Mr Harvey’s case was that his best chance of rehabilitation was established by recommencing a relationship with Ms Nannup. He said Ms Nannup is a non-drinker and would support him. He planned to move to live with her in Carnarvon and so would no longer be able to mix with previous associates. Mr Harvey, however, confirmed that he had not seen Ms Nannup for over 20 years, although they had recently been in touch by telephone.
Ms Nannup gave evidence to the Tribunal by telephone. She confirmed that she and Mr Harvey planned to live together and agreed that Mr Harvey’s relationship with her was the best chance of rehabilitation because she did not drink and would assist Mr Harvey find rehabilitation courses. She confirmed that she and Mr Harvey had reconnected on Facebook, and he had asked her to marry him. She has been in touch with Mr Harvey for about six months, but also confirmed she had not seen him in person for about 20 years. Despite Mr Harvey’s history of offending (including against her) Ms Nannup did not consider Mr Harvey to be an alcoholic, and believed he could be fixed. She said there were a lot more opportunities in Carnarvon now than the last period Mr Harvey had lived there. In her written statement, Ms Nannup also mentioned that she intended to assist Mr Harvey to communicate with his two children.
The Minister’s counsel took Mr Harvey through the multiple instances from his criminal history of breaching intensive supervision orders, suspended terms of imprisonment, and breaches of bail. It was explained to Mr Harvey that an examination of the outcome of ‘second chances’ imposed by the courts in response to his offending tended to demonstrate that he presented a very high risk of reoffending. Similarly, it was suggested to Mr Harvey that the pattern of ignoring court orders disqualifying him from driving tended to indicate that he had little regard for the authority of the criminal courts. Furthermore, the observation of the sentencing judge in relation to his conviction for aggravated assault in 2017 indicated the court did not view him as a person who would comply with a suspended sentence.
I have also had regard to representations made by the witness Mr McQuillan to the effect that he can guarantee employment for Mr Harvey, and taken that into account in terms of the prospects of Mr Harvey reoffending. I have also considered correspondence from Mission Australia regarding the assistance that organisation has offered Mr Harvey in preparing for his release from prison. The contents of the documents tend to the generic and provide little assistance or insight to the prospects of Mr Harvey’s rehabilitation. Of concern, the document at G48 indicates that Mr Harvey had indicated that he did not think he needed to participate in residential rehabilitation for his misuse of alcohol and other drugs.
The Minister contends that an examination of Mr Harvey’s extensive criminal history indicates that although he may have attended some rehabilitation sessions he has continued with his offending. The Minister contends that Mr Harvey has never had his life on track. Similarly, Mr Harvey has not been deterred from his offending by numerous lengthy prison sentences and he has demonstrated little insight into his offending. It is submitted that Mr Harvey’s reliance on his rekindled relationship with Ms Nannup is unrealistic, and in this regard I note that Mr Harvey struggled to identify alternative pathways to rehabilitation in the event that the relationship with Ms Nannup failed.
Overall, there is little before me from which I can draw comfort that Mr Harvey has anything other than a very high risk of reoffending. To the extent that past behaviour is the best predictor of future behaviour, unless something changes, I can see very little in the evidence to indicate that there has been a significant intervening event that may signal a change to Mr Harvey’s behaviour.
The nature of future reoffending would likely be alcohol-related, and Mr Harvey’s criminal history establishes that he can be violent when drunk, and will drive when drunk. Although less evident in Mr Harvey’s recent criminal history, it is also the case that Mr Harvey commits crimes such as burglary and theft in order to obtain money to buy alcohol. Mr Harvey in my view presents a very high risk of reoffending, and the nature of his offending places the Australian community in danger. I consider that he represents an unacceptable risk to the community.
I have considered carefully Mr Harvey’s contention that he had not realised his offending may expose him to ‘deportation’. As discussed during the hearing, I accept that these proceedings have focussed Mr Harvey’s attention on the consequences of his offending. I accept (and will elaborate upon below) that removal from Australia will present a personal catastrophe for Mr Harvey. In these circumstances I consider that the prospect of visa cancellation and removal from Australia may well serve as a potent disincentive to offend further in the future. It is difficult, however, to conclude that it will provide sufficient disincentive where multiple terms of imprisonment have not sufficed to change Mr Harvey’s behaviour throughout his adult life.
I maintain my conclusion that Mr Harvey represents a very high chance of future offending and am of the view that the Australian community must be protected from the unacceptable risk posed by Mr Harvey. This factor weighs very heavily against revoking the visa cancellation.
Primary consideration: The best interests of minor children affected by the decision
Mr Harvey has two children who live in Darwin. Their mother is Ms W. The children J (male) and S (female) are aged 18 and 16. J is no longer a minor and his best interests now fall strictly outside this primary consideration.
Mr Harvey confirmed that his children have always lived with Ms W. He lived with Ms W and the children on and off during the mid-2000s. He has not seen either J or S for about two years. At that time he took the children to McDonalds and shopping. Before that time he thought he had seen them a few months beforehand. Mr Harvey accepted that Ms W had stopped him seeing the children regularly because he was intoxicated.
Mr Harvey said the children had visited him during some periods of imprisonment, but that was at the time he lived with them. They did not visit him when in prison after his relationship with Ms W had ended. He did not telephone them.
Mr Harvey was asked what role he had in raising the children. He said at the time he lived with Ms W he would work and so he supported them financially. It was drawn to Mr Harvey’s attention that he has an outstanding child support liability to Ms W of $46,286.16 (as at 21 October 2017 G69) including late payment fees. He said he was living at different addresses so did not keep on top of his bills.
Mr Harvey was asked what positive role he might be able to play in the children’s lives given J was now an adult and S would be an adult soon. Mr Harvey said he wanted to let them know he was still around, and he would be there if they ever needed him.
The Minister’s counsel confirmed Mr Harvey’s evidence that he intended to move away from Darwin, and asked how he would maintain a relationship with the children in these circumstances. He said they could visit him. Mr Harvey was asked if there was any reason he could not make contact with the children via telephone or social media from the United Kingdom. Mr Harvey said he would prefer to see the children face to face.
Mr Harvey confirmed that his son has not taken any steps to find him or have contact with him now he was an adult. Mr Harvey, however, said that he had a good relationship with his children, and suspects they are unaware of his situation. Mr Harvey could not tell me what J was doing having finished school, and was uncertain which school the children had attended, before identifying a particular school. Mr Harvey confirmed that the remarks of Judge Woodcock to the effect that he had no contact with his children at the time of sentencing for his last offence, was accurate.
Mr Harvey told me that he believed Ms W had a new partner, but this person did not live with her and did not have a parental role with the children in his absence.
As to the Direction at item 13.2, I note that the direction applies only in respect of S. I have considered the following matters identified at item 13.2(4):
·I consider that the relationship between Mr Harvey and his children is parental in nature, but there is no existing relationship and there have been long periods of no or limited meaningful contact;
·I have not been persuaded that there is a prospect that Mr Harvey will play a positive parental role in the future given S will turn 18 in June 2020, he has no contact with her, and has not had contact for at least two years. I consider also that the totality of Mr Harvey’s criminal conduct must be understood to have had a negative impact on S given the nature of that conduct and the steps taken by Ms W to restrict contact;
·I consider that in circumstances where Mr Harvey has not had contact with S for some years, there will be little if any adverse effect on her caused by separation from Mr Harvey. Although I accept that if Mr Harvey were to re-establish contact with her he would prefer to do so in person, I consider that there is no impediment to Mr Harvey communicating with S via telephone or social media from outside Australia;
·S’s views are not known to me. It is significant that there is no evidence from either S or J, despite Mr McQuillan indicating he had attempted to make contact with the children to explain Mr Harvey’s predicament;
·There is no evidence that Mr Harvey has abused or neglected S, nor is there any evidence addressing whether S has suffered or experienced any physical or emotional trauma arising from Mr Harvey’s conduct. In that sense, I am not of the view that non-revocation is positively in S’s best interest.
The Minister contends that Mr Harvey has largely been absent from his children’s lives, their mother had limited his access on account of his behaviour and Mr Harvey has not made any significant financial or other contribution to them. It is submitted that in particular, given the evidence of other witnesses as to Mr Harvey’s strong work ethic, his failure to provide financial support for the children through paying child support should count against him. Furthermore, the Minister contends that no adequate reason was put forward as to why Mr Harvey could not establish and maintain contact with his children from overseas, noting it would be no less meaningful than the contact Mr Harvey has had with his children in recent years.
I am unable to identify any aspect of the Minister’s contentions in relation to this primary consideration that is not supported by the evidence and justified. It is not possible to conclude that revocation is in the best interests of S other than to the extent that revocation will nominally afford an improved potential for Mr Harvey to re-establish contact with her. Even then, I am not persuaded that Mr Harvey is likely to play any particular positive role in S’s life. I have concluded however that it is marginally in S’s best interest that the potential for Mr Harvey to establish contact with her is preserved through Mr Harvey remaining in Australia, but given my reservations as to how positive a role Mr Harvey may play in the limited time left of S’s childhood, I place very little weight on this primary consideration.
Primary consideration: Expectations of the Australian community.
Paragraph 13.3(1) of Direction No 65 states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the visa held by such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
Informing this consideration, and particularly relevant to Mr Harvey’s circumstances is the general principle at item 6.3(5) that:
… Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life or from a very young age.
And item 6.3(7) that:
The length of time a non-citizen has been making a positive contribution to the Australian community [should be considered]...
Mr Harvey’s circumstances lie at the extremes, and reaching a finding as to the expectations of the Australian community is therefore very difficult. On the one hand, Mr Harvey has lived almost his entire childhood, and his entire adult life in Australia. Mr Harvey told me in the hearing that he has never left Australia. On the other hand, Mr Harvey’s criminal history is appalling, and for the reasons set out above I consider he poses an unacceptable risk to the community.
In this respect, reasonable members of the community may well form diametrically opposed expectations as to what should happen with Mr Harvey’s request for revocation of his visa cancellation. Some members of the community may consider that given Mr Harvey arrived in Australia as an infant as the child of an (apparent) Australian citizen and has never left this country, he should not be subject to a decision that would result in his removal from the country at the age of 50. Other members of the community, fully informed as to Mr Harvey’s extensive criminal history and the risk he poses to the community in repeating that conduct, would expect decision makers such as the Tribunal to refuse to revoke the visa cancellation.
In my view, the answer is found in the Direction which is binding on me. The Minister contends that the Direction has a focus on the expectation that non-citizens will obey the law. I note also that the Direction places pre-eminence on the Government’s commitment to protecting the Australian community from harm as a result of criminal offending.
The Minister accepts that the community may have tolerance for some types or some amount of offending, but submits that Mr Harvey’s offending goes well beyond what the community as a whole would tolerate. Furthermore, it is submitted that the community should not be expected to tolerate the risk posed by Mr Harvey as his conduct demonstrates disregard for Australian laws and values for over three decades. It is submitted in the context of any positive contribution Mr Harvey has made to the Australian community that he has been in fact an administrative and prosecutorial drain on our society. It is submitted that the community would have limited sympathy and its tolerance exhausted or at least greatly diminished.
I have reflected extensively on this consideration, and have formed the view on the basis of the guidance in the Direction that in Mr Harvey’s case, the Australian community’s tolerance would indeed have been exhausted, even taking into account Mr Harvey’s personal circumstances of arriving in Australia as an infant. In my view, the expectations of the community, fully informed of the nature of Mr Harvey’s offending and the likelihood of that offending being repeated would be that the visa remain cancelled. This factor weighs heavily against revoking the visa cancellation.
Other considerations: strength, nature and duration of ties
In the circumstances of this case, and as explained above, there is considerable overlap between considerations relevant to the expectations of the Australian community and the strength, nature and duration of Mr Harvey’s ties to Australia.
Having regard to Mr Harvey’s personal background as set out at the commencement of these reasons, I take into account, and place significant weight on the fact that Mr Harvey arrived in Australia as an infant and is now in his 50s. The Directions indicate that I should give less positive weight to this consideration in circumstances where a non-citizen commences offending soon after arriving in Australia. In this regard, I take into account that Mr Harvey commenced offending as a juvenile, and never really stopped with no more than four years elapsing between the dates of convictions. The otherwise very great weight I would place on the duration of Mr Harvey’s ties is diminished accordingly.
I am also to take into account the strength, duration and nature of family and social links with Australian citizens and permanent residents, including the effect of non-revocation on Mr Harvey’s immediate family in Australia.
In this regard, I have taken into account the best interests of S as outlined above. I reach similar conclusions under this consideration in respect of J. Mr Harvey has not had meaningful contact with J for some time. I do not consider that Mr Harvey’s removal from Australian will have a profound adverse effect on J on the limited evidence I have before me and in light of the nature of Mr Harvey’s relationship with J in recent times.
I have taken into account the strength, nature and duration of family links Mr Harvey has with his siblings. I have no evidence directly from any of Mr Harvey’s siblings, which reflects Mr Harvey’s evidence that he last saw his siblings around the year 2000 before his daughter S was born. Mr Harvey indicated that he wanted to regain contact with his siblings to show them he was a changed man. I conclude however that the strength and nature of Mr Harvey’s ties with his siblings is limited. I do not consider his siblings will be adversely affected by non-revocation of the visa cancellation.
I have had regard to the witness statements provided by Mr Harvey, and have taken into account the oral evidence of those witnesses as follows:
·Mr Weller explained he was a friend of Mr Harvey and had known him for seven years. Mr Weller says that he also knows the victim of Mr Harvey’s last violent offence, and believes the victim to be the sort of person that might provoke someone. Mr Weller’s evidence is that Mr Harvey is a good natured person, although he should not drink port, and in that sense attributed Mr Harvey’s violent offending to the type of alcohol Mr Harvey would consume. Mr Weller says he last saw Mr Harvey in 2017;
·Mr McQuillan explained that he was an employer of Mr Harvey. He described Mr Harvey as a conscientious worker and indicated he would be pleased to have Mr Harvey work for him in the future. He said in his statement that Mr Harvey presented as a strong family man, but I note this is inconsistent with any of the objective evidence. Mr McQuillan explained he had attempted to contact Mr Harvey’s children on Mr Harvey’s behalf but had not been granted access to them by Ms W. Mr McQuillan states that Mr Harvey is not a violent man, again a statement inconsistent with the objective facts;
·I have mentioned the evidence of Ms Nannup earlier. Ms Nannup also told me that Mr Harvey had provided support to her and her (now adult) children when she was in a relationship with him. I accept that Ms Nannup will be disappointed if the visa remains cancelled and the plans she has to rekindle her relationship with Mr Harvey cannot come to fruition in Australia;
·Mr McCamley told me that he was a former employer of Mr Harvey, and also had the view that Mr Harvey was a very hard worker. Mr McCamley admired Mr Harvey’s integrity, but was obviously shocked to learn of the nature and extent of Mr Harvey’s offending when confronted with that information under cross-examination.
I have taken into account the evidence of these witnesses generally against relevant aspects of the Direction, but specifically about the nature, strength and duration of Mr Harvey’s ties with Australia. It is difficult to reconcile the evidence of Mr McCamley and Mr McQuillan as to their observations of Mr Harvey’s work ethic, integrity and reliability against Mr Harvey’s criminal history. In some respects, as in Mr McCamley’s case, this may be explained because it appears that Mr McCamley did not really know Mr Harvey as well as he thought he did. In other respects, it tends to underscore the impact of intoxication on Mr Harvey’s behaviour. I accept that Mr McQuillan and Mr McCamley encountered Mr Harvey in different circumstances to the victims of his violent offending and burglaries, or the Police in dealing with the many other offences listed on his criminal history.
Overall, I consider that Mr Harvey has very strong ties to Australia based on the duration of his time in Australia. The significant favourable weight I would attach to this factor is reduced, however, because Mr Harvey has been engaged in committing criminal offences for his entire adult life. I have limited persuasive evidence before me that family members and social links will suffer adverse consequences if the cancellation is not revoked. I consider that this weighs marginally in favour of revoking the visa cancellation.
Other considerations: extent of impediments if removed
As mentioned above, I consider that non-revocation of the visa cancellation and subsequent removal from Australian will be a personal catastrophe for Mr Harvey. This arises primarily on account of Mr Harvey having lived his entire life in Australia, other than his very young infancy. In this regard, I accept that Mr Harvey grew up in Australia and has worked and lived in many places around Australia. I accept Mr Harvey’s evidence that he has no contact with family members or anyone else in the United Kingdom. Mr Harvey told me at the hearing he does not know where he would go. I gained the impression that Mr Harvey has still not come to terms with the possibility that he will be removed from Australia.
The focus of the consideration, however, is on impediments that Mr Harvey may face in establishing himself and maintaining basic living standards. The Minister contends, and I accept, that Australia and the United Kingdom obviously share a common language and are culturally and socially very similar. Likewise, as Mr Harvey is a British citizen, he would be entitled to access welfare support and healthcare available to British citizens in the United Kingdom. I have no direct evidence outlining the precise nature of support that would be available to Mr Harvey, but take on notice that the United Kingdom has well established and universal social and welfare services and a public health system.
On the other hand, Mr Harvey is in his 50s and has lived a marginalised life in Australia. His inability to effectively address his offending at any stage of his adult life suggests he has limited personal problem solving resources to draw upon. It is an inescapable conclusion that Mr Harvey is likely to struggle greatly to adapt to life in another country.
I have taken into account that Mr Harvey has no formal skills or qualifications, and limited formal education. I also note, however, that Mr Harvey has found regular labouring work throughout his life and has conducted himself in this regard in such a way to attract support from former employers in these proceedings. I take on notice that work of that nature is inevitably available in the United Kingdom. Mr Harvey confirmed in his evidence that he is of good health, with an earlier Hepatitis C infection being successfully treated.
I consider that the material impediments Mr Harvey will face if removed from Australia are limited when considered objectively. His capacity to access British welfare services and the similarity in language and culture will ensure he has an opportunity to maintain basic living standards in the United Kingdom. I am concerned, however, that Mr Harvey will nonetheless face very significant personal impediments, including isolation, in the United Kingdom. Overall, I consider that this factor weighs in favour of revoking the visa cancellation.
Other considerations: international non-refoulement obligations, impact on Australian business interests, impact on victims
No evidence or argument was advanced in relation to Australia’s non-refoulement obligations. This consideration is not relevant in this matter.
I have taken into account the evidence from Mr Harvey’s former employers, and take into account that non-revocation will mean that Mr McQuillan and Mr McCamley will be unable to employ Mr Harvey as a labourer. I did not gain the impression however that this would create any particular difficulty for either tradesperson noting Mr Harvey has been unavailable for some time on account of his incarceration. I do not consider there to be any relevant impact on Australian business interests in this matter.
The views of the victims of Mr Harvey’s offending are not known to me. Mr Harvey said that he had apologised to the victim of the aggravated assault, and this apology had been accepted. The victim had recovered fully from the assault, and according to Mr Harvey was quite surprised by Mr Harvey’s situation.
Earlier victims of Mr Harvey’s violent offending and the offending described as offences of dishonesty appear now to be well removed from Mr Harvey, such that I do not consider there will be any particular impact on these victims either way.
The remaining considerations in my view are either irrelevant or carry little weight.
ASSESSMENT
I have taken into account Mr Harvey’s general submissions to the Tribunal in relation to this matter. I note that Mr Harvey accepts that his offending does not show a good side to him. He states that he has taken steps to better his life and believes he is capable of making changes for the best. Mr Harvey explained that he hopes to rekindle his relationship with his children and family, and also with Ms Nannup. He seeks to assure the Tribunal that he will not go down previous paths again, and will provide for his children.
Mr Harvey askes that the Tribunal give particular consideration to the fact that his mother was born in Victoria, as were his grandparents. Mr Harvey stated that he is remorseful for his actions and extended an apology to the Australian community.
I am to decide if there is any reason why the decision to cancel Mr Harvey’s visa should be revoked, with my consideration of this issue exercised in accordance with the Direction.
In this regard, I have found that the primary consideration of the protection of the Australian community, including the nature and seriousness of Mr Harvey’s offending and the risk to the community should Mr Harvey reoffend is such that I consider the risk posed by Mr Harvey to be unacceptable. I reiterate that Mr Harvey’s criminal history demonstrates little evidence of insight into the nature and cause of his offending, and little indication of a prospect for change.
I have concluded that while the best interests of S would see the visa reinstated, I have reached this view only on the basis that it would provide an opportunity for a relationship to be re-established. As I have reservations as to how positive this relationship would be, informed by an absence of contact and financial support in recent years, the weight I have attached to this factor is limited.
For the reasons expressed above, after much reflection I have decided the community would expect the visa to be cancelled, accepting the submission that whatever tolerance may have been afforded to Mr Harvey on account of the duration of his ties with Australia, that tolerance would have been exhausted, particularly in light of the risk I consider that Mr Harvey poses.
In my view, these primary considerations weigh heavily in favour of the visa cancellation not being revoked. While I have considered that Mr Harvey does have strong ties to Australia and will face significant personal, if not material, impediments if removed, these matters do not outweigh the primary considerations.
My role is to diligently apply the Direction on the basis of the facts as I find them. Although a decision that will effectively remove Mr Harvey from Australia after a lifetime here is a deeply uncomfortable decision to make, I consider it is the decision I must make on the facts of this case and in accordance with the Direction.
DECISION
I affirm the decision under review.
155. I certify that the preceding 154 (one hundred and fifty four) paragraphs are a true copy of the reasons for the decision herein of Member M Kennedy.
.....................[Sgnd].........................
Administrative Assistant Legal
Dated: 22 October 2018
Date of hearing: 25 and 26 September 2018 Applicant:
Self-represented
Solicitors for the Respondent: Ms L Butler
Australian Government Solicitor
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Natural Justice
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