Henare and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 979
•30 September 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 979
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/947
GENERAL ADMINISTRATIVE DIVISION ) Re LEONARD HENARE Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal The Hon R N J Purvis, A.M. Q.C.,Deputy President Date30 September 2005
PlaceSydney
Decision The decision under review is affirmed. [SGD] The Hon R N J Purvis AM, Q.C.
Deputy President
CATCHWORDS
IMMIGRATION – cancellation of Special Category Visa – numerous convictions in Australia – Applicant has spent 5 years in prison – substantial criminal record – Applicant not of good character – discretion considered – consistently acted regardless of law – drug convictions – expectations of Australian community and for protection of community visa should be cancelled – hardship suffered by Applicant does not outweigh primary considerations – decision affirmed.
Migration Act 1958 sections 501, 501G
REASONS FOR DECISION
30 September 2005 The Hon R N J Purvis, A.M. Q.C.,Deputy President the application
1. Mr Leonard Jon Henare (“the Applicant”) by his application lodged with the Tribunal seeks to have a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Respondent”) made on 12 July 2005 set aside. By such decision the Respondent cancelled the Applicant’s Special Category Visa pursuant to section 501(2) of the Migration Act 1958 (“the Act”). A consequence of the cancellation of the visa is that the Applicant would be liable to be deported to New Zealand. He is presently detained at Villawood Immigration Detention Centre.
2. In the Statement of Reasons of the Respondent supporting the cancellation decision a number of considerations are referred to as relevant to that decision. They highlight matters of concern in this appeal and are as follows:
“…
[70] The nature of Mr Henare’s conduct and its effect on the community is such that I gave this consideration great weight, having taken the view that the Australian community is entitled to protection from such conduct.
…
[74] Given the continuing nature of his criminal history, which has spanned over a period of 12 years, I consider that there is a continuing risk that Mr Henare may re-offend. I placed moderate weight on this factor.
…
[75] In considering whether the cancellation of Mr Henare’s visa would act as a deterrent to other non-citizens who might engage in similar activities, I found that cancellation in this instance may provide a deterrent effect. I considered that this was not a significant factor and overall I placed little weight on this consideration.
…
[77] In view of the disruption caused by Mr Henare’s offences, and the continuing nature of his criminal behaviour, I believe that the Australian community would expect Mr Henare’s visa to be cancelled and for him to be removed from Australia. I gave great weight to this consideration.
…
[82] I found that removing Mr Henare from Australia would cause him considerable hardship.
…”
the issues for determination
3. The issues for determination in this appeal primarily relate to the considerations relevant to the exercise of the discretion specified in the Ministerial Direction titled ‘Direction – Visa Refusal and Cancellation Under Section 501- No. 21’ (“the Direction”). The Applicant appeared on his own behalf and was not in a position to make a concession as to his character. However as will be discussed later in these reasons by dint of his past substantial criminal record it is open to the Tribunal to conclude that it reasonably suspects that the Applicant does not pass the character test.
4. With reference to the above mentioned Direction, the relevant primary considerations are the nature and seriousness of the Applicant’s criminal conduct and factors that pertain to the protection of the Australian community including questions of recidivism together with the expectations of that community. There are no children. Other considerations that I am to take into account, as they relate specifically to this matter, include any possible disruption to the Applicant’s family if deportation should eventuate, hardship to the Applicant and his family and its composition, any evidence of rehabilitation and good conduct, the nature of the Applicant’s visa and the purpose and duration of the Applicant’s stay in Australia including any compassionate considerations.
the hearing
5. At the hearing of this application the Applicant appeared without representation. The Respondent was represented by Mr Neil Arora, Solicitor of Clayton Utz Lawyers.
6. The documents required to be provided by the Respondent to the Applicant pursuant to section 501G of the Act were admitted into evidence and marked G1 to G11. Statements of the Applicant and his mother Mrs Debra Lynette Flabell were tendered and marked as Exhibits A and B (respectively).
7. The Applicant and Mrs Flabell gave oral evidence upon which they were each cross-examined.
relevant statutory provisions and ministerial direction
8. Section 501 of the Act relevantly provides that:
“501 Refusal or cancellation of visa on character grounds
Decision of Minister or delegate—natural justice applies
….
(2) The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.
…
Character test
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or
(b)…
(c) having regard to either or both of the following:
(i) the person's past and present criminal conduct;
(ii) the person's past and present general conduct;
the person is not of good character; or
(d) in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i) engage in criminal conduct in Australia; or
…
(v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.
Otherwise, the person passes the character test.”
9. Section 501 (7) provides that:
“Substantial criminal record
(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
…”
10. If the Tribunal is satisfied that the Applicant does not pass the character test, then the discretion provided for by section 501(2) of the Act is available to it. In exercising the discretion the Direction is to be followed, with the Tribunal having regard to the three primary considerations and a number of other considerations referred to in the Direction. The Tribunal is to have regard to the importance and weight placed by the Minister on the primary considerations. Other considerations are also to be given appropriate weight, any one of which is generally not to individually outweigh a primary consideration.
11. Paragraph 2.6 of the Direction states:
“2.6 It is the Government’s view that the following are examples of offences which are considered by the Government to be very serious:
(a) the production, importation, distribution, trafficking (including possession for this purpose), commercial dealing, or selling of illicit drugs:
•persons who embark upon drug-related crime for financial gain have shown a callous disregard for the insidious effects of illicit drugs on the health and welfare of Australia's young people;
•the Government views non-citizens who have sought to profit from the import or supply of drugs, whether or not motivated by their own need for illicit drugs, as extremely serious offenders. It is important both as a deterrent to other criminals and to protect Australian society that it is clearly understood that crimes involving drug trafficking, which puts the lives of young Australians at risk, be viewed as completely unacceptable to the community; and
•offences involving illicit drugs of dependency or addiction, such as heroin, are also of particular concern to the Government and the community
…
(l) Serious theft (including ’white collar’ crimes);
·such crimes are of concern because of the amounts of money involved and/or the disruption caused to individuals, business and Government;
…
(n) any other crimes involving violence or the threat of violence:
·such crimes are of special concern to the welfare and safety of the Australian community; and
…”
12. Paragraph 2.7 of the Direction states in part:
2.7 “It is the Government's view that the sentence imposed for a crime is an indication also of the seriousness of the offender's conduct against the community. Decision-makers should have due regard to the Government's view in this respect, including:
(a)the extent of the person's criminal record, including the number and nature of offences, the time between offences, and the time that has elapsed since the most recent offence; and
…”
13. Paragraph 2.11 of the Direction states:
“2.11 General deterrence aims to deter other people from committing the same or a similar offence. While not a conclusive factor in itself, general deterrence is an important factor in determining whether to refuse or cancel a visa. The general deterrence factor may be relevant in a number of ways:
(a) the nature of the offence may be such that visa refusal or cancellation may deter others from committing similar offences; and
(b) the visa refusal or cancellation in respect of a non-citizen who has been involved in a criminal scheme or schemes may discourage or prevent another person or persons from engaging in similar schemes.”
14. Paragraph 2.12 of the Direction states:
“2.12 The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. Decision-makers should have due regard to the Government’s view in this respect”.
criminal history of the applicant and his character
15. The relevant criminal conduct and history of the Applicant is detailed in the documents provided by the Respondent pursuant to section 501G of the Act and marked G4/19-43. It is extensive. Over the period 1991 to date the Applicant was a party to no less than 71 acts of anti social behaviour. Since August 1998 he has spent five years in prison (G7/66-67). His conduct has adversely affected the lives of many people.
16. More recently the Applicant has been sentenced on 17 April 2001 to 20 months of imprisonment for offences including breaking and entering, on 17 February 2003 to three years imprisonment for breaking and entering, stealing a motor vehicle and possession of housebreaking implements and on 4 April 2003 twelve months imprisonment for assault.
17. The Applicant attributes his criminal history both past and present to his addiction to drugs. He says that he has undergone courses in rehabilitation and that he intends to abstain from the use of drugs in the future. In this connection it is of moment to note that as recently as at 21 March 2005 the Applicant failed the urine test for “Drugs in urine only”.
18. On 17 February 2003 the following observations were, inter alia, made by the sentencing judge:
“[1] The offender who is before the Court is being sentenced by the Drug Court following the termination of a Drug Court program. The program commenced in respect of two offences for which the offender was sentenced on 11 June 2002. Those sentences were suspended and he was released to a program, and there are now a large number of other matters that the Court is dealing with.
…
[3] The offence of breaking entering with intent involved the use of a long handled screwdriver to force his way into premises…
[4] The summary offence of 2000 was where a house was broken into and property that was valued at more than $10,000 was taken…
[5]…In the meantime he had apparently used heroin on two occasions and had also failed to comply with drug tests…
[6]… The Court had previously imposed a condition of his program that if he again abandoned his program, given the past history of so doing, his program would be terminated in his absence…
[7] The fresh offences. When arraigned today he has pleaded guilty to seven offences. Six of those are of breaking entering and stealing and one is of stealing a motor vehicle…
…
[12] …He admits that he sold the property at Liverpool for heroin.
…
[20] His offences are aggravated principally by the fact that they are a repetition of offences which he has on his previous record, that they are offences committed whilst he was on conditional liberty for offences of a similar nature…
…
[22] Prospects for rehabilitation are possibly one of the major matters that the Court ought to take into account because he is a young man who has expressed a desire for rehabilitation. On the other hand, it must be said that that desire for rehabilitation which he has expressed is not supported by his actions, and one might be entitled to draw the conclusion that in seeking to enter into the Drug Court Program he was seeking to do no more than avoid the consequences of the very serious crimes that he had committed and for which he was on parole when he first came to the Drug Court.
[23] His past criminal history shows his first adult court matters were in 1997 and his first sentence of imprisonment was in 1998 for offences involving theft of motor vehicle, goods in custody and malicious damage. In 1999 he was sentenced for stealing from a person and was sentenced to imprisonment. Soon after his release for that offence he was convicted of a number of other offences, including serious driving. In October 2000 he was sentenced again for a substantial term for offences of breaking entering and stealing. There is also, of course, the fact that he was on parole at the time when the first of those matters came before the Court. Clearly today there would be no alternative but to impose a sentence of full time imprisonment.
…”
19. On the basis alone of the convictions recorded against him, I am satisfied that the Applicant is a person not of good character.
20. Further, he has consistently, since at least 1991, acted regardless of the law and has shown no inclination to comply with the responsibilities of a lawful resident of this country. He has abused the hospitality that was extended to him. He has acted regardless of the welfare of others. He has made a minimal contribution to the Australian society and there is not any evidence of his seeking to integrate into it.
other relevant facts and findings of fact
21. The Applicant was born in New Zealand on 8 May 1978. He first entered Australia on a holiday in 1985 and re-entered with his parents and brother on 6 July 1988. Since that time and except for a few short visits to New Zealand he has lived in Australia.
22. The Applicant left school when he was 14 years of age and worked as a storeman and packer for 3½ years. Thereafter he has worked in the construction industry.
23. There is not any evidence of the Applicant being involved with any organisations or social activities other then his criminal associates and their environment. He became addicted to “pills and heroin” from a young age and “engaged in criminal activity to feed my addiction” (Exhibit A). He attributes his criminal history to his drug addiction. His referral to drug rehabilitation programmes has been of limited avail. Although he claimed to have been free of the use of drugs “since about January 2003”, the Corrective Service documentation says otherwise.
24. However he says that he has now “grown up” and if released would enter a drug rehabilitation unit and obtain employment in the building industry.
25. The Applicant’s mother whilst being aware of her son’s addiction was unable, she said, to help him. She feels at this time that having “graduated from a drug program in prison” he has made the “first step on a road to being normal”. She believes that “we could keep him off the drugs”. The tragedy is that she has not been able to achieve this end in the past.
26. If the Applicant was to be returned to New Zealand, his aunt and her husband, now both retired, have indicated a willingness to provide him with accommodation and moral support. In addition he has relatives living in both the North and South Islands of New Zealand. He stated in his evidence at the hearing that whether he is living in Australia or New Zealand he will return to a rehabilitation course.
27. Cancellation of the Applicant’s visa and deportation to New Zealand would undoubtedly cause hardship to the Applicant. He says that he now regards Australia as his home. He says that he now understands his problem and recognises that what he did was wrong. He has attended rehabilitation courses.
28. Even be it the Applicant says that he proposes to change his way of life and cease using drugs, and even be it the Alcohol and Other Drug Counsellor at the Ngara Nura Therapeutic Unit at Long Bay Correctional Centre supports the Applicant’s involvement in external programs (G9/72-73), the Tribunal being mindful of his continuing criminal conduct over many years, cannot express confidence in his carrying through with his expressed intent.
family considerations
29. The Applicant’s parents and his brother reside in Australia. Only the mother gave evidence in support of her son. It is apparent however, that since he was 14 years old and left school, she was suspicious if not aware of the fact that he was using drugs. She was aware that he was in prison. She felt unable to assist him in changing his habit. There is not any evidence as to the Applicant living with his family in Australia or as to the assistance they might have provided to him. It would seem however on the basis of the evidence before the Tribunal that he has not, except perhaps after his arrival and whilst he was at school, spent any lengthy periods living with or associating with his family members.
30. Whilst the mother expresses hope in her son resisting the temptation of returning to the use of drugs, the past history tends to cast doubt on this as a real possibility. On the other hand if the Applicant is able to stay free from drugs and crime he may be able to ensure a worthwhile existence for himself wherever he is living.
discretionary considerations
31. As already indicated I am satisfied that the Applicant does not pass the character test. Accordingly, the Tribunal is required to consider the discretionary factors available to it. I am to have regard to the three primary considerations and a number of other considerations already identified in these reasons.
32. I am satisfied that the criminal conduct of the Applicant has been of a very serious nature. I note that paragraph 2.6(a) of the Direction refers to “the production, importation, distribution, trafficking (including possession for this purpose), commercial dealing, or selling of illicit drugs” as very serious offences. Paragraph 2.6(b) of the Direction stipulates that, amongst other involvements, organised criminal activity resulting in conviction in Australia is to be regarded as a very serious offence.
33. I am satisfied on the basis of the evidence before the Tribunal, including the observations made by the learned Drug Court Judge that the criminal conduct of the Applicant has been of a very serious nature.
34. I am mindful of the fact that the Applicant again offended whilst on parole and used drugs whilst in prison. I am satisfied having in mind his convictions and past behaviour that there is a likelihood that he may re-offend. I am satisfied that the risk of recidivism is quite high. The fact alone of the Applicant re-offending whilst on parole and using drugs whilst in prison suggests that there is a significant likelihood that he will continue to re-offend in Australia in the future if his visa is not cancelled.
35. The conduct engaged in by the Applicant was extensive and continuous. There is no doubt that cancellation of the visa should send a message to the Australian community that conduct in breach of the law may well attract visa cancellation.
36. The Australian community expects a resident to obey Australian law. This expectation was broken by the Applicant on a number of occasions by his serious criminal conduct. If the Australian community was aware of the full nature of his conduct, I am satisfied it would, on this ground alone, expect a visa to be cancelled. I am satisfied that members of the Applicant’s family living in Australia are genuine in their concern for his welfare. However, he does have relatives in New Zealand who will likewise be mindful of his welfare.
37. It was submitted by the Applicant that his addiction to the use of drugs was the cause of his criminal conduct. This was undoubtedly so. It was further submitted that he has changed. The Tribunal is not satisfied on the evidence that this submission can be sustained. His use of drugs extends over a very lengthy period of time and even be it he was cautioned, given suspended sentences, placed on reconisance, had his position considered by the Drug Court and subjected to the rehabilitation program, he still offended. The Applicant has made a minimal contribution to the Australian community. He has over a lengthy period of time in fact acted against the interests of the community.
38. There is no evidence of the Applicant having a meaningful connection with any part of the Australian community. The Tribunal agrees with the submissions made on behalf of the Respondent that the community faces or could face further damage by reason of conduct of the Applicant if he is allowed to remain in Australia.
39. The subject visa is a special category visa. The Applicant has been on notice of the possibility of visa cancellation since 3 May 2005.
40. On behalf of the Respondent, Mr Arora submitted that the Australian community had, by reason of the conduct of the Applicant, been subjected to damage. His pattern of offending, it was submitted, affected many individuals, and has caused extensive damage. This affect and damage was as a consequence of the Applicant’s involvement in drug usage in this country. The Tribunal strongly endorses this submission made on behalf of the Respondent. Members of the Australian community are to be discouraged from involving themselves in the use of drugs. If members of a particular community are so involved, then it is appropriate for other members of that same community to, if possible, take action to discourage them. If a consequence of engaging in criminal activities is a loss of a visa then this may well serve as a powerful deterrent.
41. The circumstances of the Applicant’s entry into Australia in 1988 with his parents and his brother do not now give rise to any significant or compassionate considerations.
42. On the basis of the matters set forth earlier in these reasons, I am satisfied that the primary considerations relevant to the protection of the Australian community and the expectations of that community are in favour of visa cancellation. The hardship that will be experienced by the Applicant and his relatives on the evidence before the Tribunal is not sufficient to outweigh the primary considerations. Nor do the other non-primary considerations raise any significant issues in a favour of non-cancellation.
43. Accordingly, for the reasons herein before set forth, I am satisfied that the primary considerations favouring visa cancellation outweigh the other considerations. Accordingly, the decision under review is affirmed.
I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis AM Q.C., Deputy President.
Signed: A. Garcia .....................................................................................
Associate
Date/s of Hearing 26 September 2005
Date of Decision 30 September 2005
Representative of the Applicant self-representedSolicitor for the Respondent Mr N. Arora
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