HERRING And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
[2006] AATA 319
•5 April 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 319
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2006/21
GENERAL ADMINISTRATIVE DIVISION ) Re KEITH HERRING Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Mr J.W. Constance Date 5 April 2006
Place Canberra
Decision The decision of the Delegate of the Minister (made on 6 October 2005) to cancel the visa issued to Mr Herring is affirmed.
…….............................................
J.W. Constance, Senior Member
CATCHWORDS
MIGRATION AND CITIZENSHIP — Cancellation of visa — Failure of character test — Substantial criminal record — Seriousness of conduct — Likelihood conduct may be repeated — Protection of Australian community — Discretion to cancel visa should be exercised.
Migration Act 1958 (Cth) s 501.
REASONS FOR DECISION
5 April 2006 Mr J.W. Constance, Senior Member INRODUCTION
1. Mr Herring was born in England. He first came to Australia in 1986. In 1988 he again entered Australia, this time as the holder of an Independent Migration Visa, and has remained here ever since. In 1994 Mr Herring was granted a Transitional (Permanent) Visa.
2. On 6 October 2005 the Minister’s delegate cancelled Mr Herring’s visa. It is this decision which Mr Herring seeks to have reviewed.
3. For the reasons which follow the decision to cancel the visa will be affirmed.
APPLICATION FOR RESTRICTION ON PUBLICATION OF EVIDENCE
4. Prior to the hearing Mr Herring applied for a direction that these proceedings be confidential. I have considered the provisions of section 35 of the Administrative Appeals Tribunal Act 1975 (Cth) and I am not satisfied that there are grounds for making any directions such as are referred to in that section. As the section provides, in principle evidence before the Tribunal should be made public unless the Tribunal is satisfied otherwise. Much of the evidence before me is already in the public domain.
FACTS
5. I am satisfied of the following facts on the balance of probabilities. The findings are based on the documents in evidence before me.
6. Mr Herring was born on 10 June 1946[1] Between the time he turned 18 and his arrival in Australia he was convicted of between 60 and 70 offences in the United Kingdom, including assaulting police, assault occasioning actual bodily harm, unlawful and malicious wounding and various dishonesty offences. In Australia in 1990 he was convicted of assault, in 1991 of contempt of court (involving attempted assault on the Judge at his trial for murder) and in 1995 of the murder of his wife in 1989.[2] He was sentenced to 2 years imprisonment for the contempt of court and 22 years and 3 months for the murder.
[1] Ex. R1, G3.
[2] Ex. R2.
7. Whilst in prison Mr Herring has committed 14 offences which include fighting, intimidation and threatening behaviour. The latest of these was in January 2004.[3]
[3] Ex. R1, G11.
8. Mr Herring has one child, an adult son.
BACKGROUND LEGISLATION
9. Subsection 501(2)(b) of the Migration Act 1958 (Cth) provides that the Minister may cancel a visa if the holder does not satisfy the Minister that the person passes the character test. Subsection 501(6)(a) provides that a person who has a “substantial criminal record” does not pass the test and for this purpose a person has such a record if he or she has been sentenced to a term of imprisonment of 12 months or more (subsection 501(7)(b)).
10. The Minister has issued Direction No. 21 to provide guidance to decision makers (which includes this Tribunal) making decisions under section 501. This direction must be complied with (section 499(2A)).
11. The Direction sets out 3 primary considerations and a number of secondary considerations in relation to the exercise of the discretion to cancel the visa of a person who does not pass the character test. “Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.”[4]
[4] Direction No. 21, Visa Refusal and Cancellation Under Section 501 of the Migration Act 1958, para. 2.2.
12. Paragraph 2.3 of the Direction provides:
In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a)the protection of the Australian community; and members of the community;
(b)the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
ISSUES
13. The issues for determination are:
1.does Mr Herring pass the character test in accordance with section 501 of the Act?
2.if not, should the discretion to cancel the visa be exercised?
Does Mr Herring pass the character test?
14. As Mr Herring has been sentenced to a term of imprisonment for more than 12 months he has “a substantial criminal record” within the meaning of subsection 501(7) and consequently, in accordance with subsection 501(6)(a), he does not pass the character test.
Should the discretion to cancel the visa be exercised?
15. Two of the three primary considerations set out in Direction No. 21 are relevant in Mr Herring’s case – the protection of the Australian community and the expectations of the Australian community.
16. In considering the protection of the Australian community I am required to take into account the following:
·the seriousness and nature of Mr Herring’s conduct;
·the likelihood that the conduct may be repeated (including the risk of any recidivism); and
·whether visa refusal may prevent or discourage similar conduct (general deterrence).[5]
[5] Direction No. 21, Visa Refusal and Cancellation Under Section 501 of the Migration Act 1958, para.2.5.
17. The Direction provides that the Government considers that the making of false or misleading statements in connection with entry into Australia, serious theft, murder and any other form of violence against persons are regarded as very serious offences. The sentences imposed are indications of the seriousness of the conduct as are the extent of a criminal record and the repugnance of the crime(s) involved.
18. A consideration of all the factors referred to in the preceding paragraph can leave no doubt that the seriousness and nature of Mr Herring’s conduct is such that the protection of the Australian community is best served by the cancellation of his visa. In both his Application for Entry for Settlement (dated 22 January 1987)[6] and his Immigration Application (dated 21 March 1987),[7] Mr Herring falsely stated that he had not been convicted of any offence. In addition he has a conviction for the murder of his wife and a number of convictions for assault and dishonesty. He is currently serving a term of imprisonment for 22 years and 3 months and has served several previous terms of imprisonment for violent crimes. His criminal record is very extensive including a conviction for a crime which the great majority of the community would regard as one of the most repugnant.
[6] Ex. R3.
[7] Ex. R4.
19. I have considered the possible mitigating factors set out in paragraph 2.8 of the Direction. None of these factors are relevant in this matter.
20. Although I cannot be satisfied that Mr Herring is likely to commit another murder, the fact he has committed so many crimes involving violence to others and has continued to commit such acts whilst in prison brings me to the conclusion that there is a likelihood violent conduct towards others may be repeated.
21. I am not able to decide on the evidence before me that the cancellation of Mr Herring’s visa would have a general deterrent effect. The nature of his offences are so serious that I have considerable doubt as to whether the risk of visa cancellation would have any effect on a person minded to commit similar offences.
22. The extent and nature of Mr Herring’s criminal record together with his conduct while in prison is such that most members of the Australian community would expect that he be removed from Australia at the appropriate time. Clearly he has not met the community expectation that a member of the Australian community will obey its’ laws.
23. The consideration of the interests of a child is not a relevant factor in this case as Mr Herrings son is over the age of 18 years.
24. The Direction also sets out a number of secondary considerations to be taken into account. I have carefully considered the material contained in paragraphs 2.17 to 2.24 inclusive and I am satisfied that the only considerations relevant in this matter are those I refer to in the following 4 paragraphs.
25. There is no evidence before me that there would be any disruption to the family or business of Mr Herring or his other ties to the Australian community if the visa is cancelled.
26. There is no evidence of any hardship which would be occasioned to Mr Herring’s son.
27. The evidence does not indicate that Mr Herring has been rehabilitated. The evidence of the incidents in which Mr Herring has been involved whilst in prison indicates otherwise. There is some evidence of recent good conduct in that there is no incident recorded against Mr Herring since January 2004, however, I do not consider this outweighs the numerous other factors which indicate that cancellation of the visa is appropriate.
28. The visa held by Mr Herring is a permanent visa. I do not consider this a matter of relevance.
DECISION
29. Mr Herring has not passed the character test. Taking into account all the evidence before me, the weight of all relevant considerations is overwhelmingly that the discretion to cancel Mr Herring’s visa should be exercised.
30. The decision of the Delegate of the Minister (made on 6 October 2005) to cancel the visa issued to Mr Herring is affirmed.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J.W. Constance, Senior Member.
Signed: .....................................................................................
Joe Meagher, AssociateDate/s of Hearing 31 March 2006
Date of Decision 5 April 2006
Representation for the Applicant SelfSolicitor for the Respondent Clayton Utz
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