Holland and Minister for Immigration and Citizenship
[2008] AATA 340
•7 April 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 340
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/0667
GENERAL ADMINISTRATIVE DIVISION ) Re FRANK ALAN HOLLAND Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Mr G L McDonald, Deputy President Date7 April 2008
PlaceMelbourne
Decision For the reasons given orally the decision under review is set aside and remitted to the respondent with a direction to reinstate the applicant's Class BB Subclass 155 Five Year Resident Return under s 501(2) of the Migration Act 1958. ..............................................
Deputy President
CATCHWORDS
Migration Act 1958 (Cth) s 501(2)
REASONS FOR DECISION
7 April 2008 Mr G L McDonald, Deputy President 1. I am prepared to give my decision now. The Tribunal accepts you do not meet the character test. The only issue is whether the discretion available should be exercised in your favour to permit you to remain in Australia. Mr Holland, you are a citizen of the United Kingdom and you are applying for the review of a decision of a delegate of the Minister for Immigration and Citizenship to cancel your current Australian resident visa. If upheld this decision will result in your deportation to the United Kingdom.
2. The cancellation of your visa was decided, after your convictions on a series of counts, including incest by a parent, gross indecency with a girl under the age of 16 years and lawful and indecent assault on a girl, conducting indecent acts with a child under the age of 16 years. The offences are in respect of one of your daughters, Edna and her son Robert, and a daughter of your son, ie, the latter two being your grandchildren.
3. You pleaded guilty to three counts of committing an indecent act with your grandson, who was then aged about eight years. The offences were committed over approximately a two-year period between 1993 and 1995 and this offending ceased when your grandson threatened to report you.
4. You were found guilty after trial of a further two counts of the same offence but involving your granddaughter and one count of incest with that granddaughter. The offences against your granddaughter were committed in the period immediately following the cessation of your offending against your grandson. It was as a result of your granddaughter reporting your conduct that resulted in your apprehension.
5. You were also found guilty after trial of three counts of procuring the commission of an act of gross indecency with your daughter Edna Holland, two counts of indecently assaulting her and three counts of incest with her. The offences against your daughter were committed when she was aged between 13 and 18, however the sentencing judge commented that the offences against your daughter probably commenced at the time she was aged about seven years.
6. The circumstances surrounding your offending were set out by the sentencing judge, Justice Needham, on 17 February 2004, and are set out in paragraph 5 of his judgment. I do not need to repeat them here other than to say your actions were revolting and would have been frightening, confusing and damaging to all three of the victims.
7. His Honour found that the offences occurred over a 40 year period and stated that he could not be certain that despite your age and ill health, you would not offend again. It is clear from his sentencing remarks that the judge, as do I, and as I believe would other members of the Australian community, regarded the offences against young children as occurring in circumstances involving a breach of trust and responsibility by a father and a grandfather, as being very serious matters.
8. In aggregate you received a sentence of eight years, six months imprisoned, with a minimum non-parole period of four years. You were due for release on 15 February of this year. The Parole Board had determined to release you at that time, but you were immediately re‑apprehended and have been in the custody of the Immigration Department since.
9. The purpose of the Tribunal, in reviewing the case however, is not to punish you. The purpose is to determine your visa status. The issues that the Tribunal must consider are set out in the Migration Act 1958 and Ministerial Direction 21. The primary matters to be addressed are the protection of the Australian community, the expectations of the community and the best interests of any child involved. The last has no relevance to this case. Other considerations also arise and I address these later in these reasons.
10. Dealing with the protection of the Australian community. The offences you committed in the circumstances I have outlined are in common parlance despicable, or as the Ministerial direction more soberly describes them as:
particularly repugnant to the Australian community
11. As I have said they involve a breach of trust in your responsibilities as a parent and grandparent. You, of course, tried to cover up the commission of the offences and I note that you did not plead guilty to the charges, except in relation to your grandson. I have read the victim impact statements of both your daughter and grandson and the findings as to the factual circumstances set out by the sentencing judge. The sentence imposed demonstrates the court’s view of the seriousness it took of the offences.
12. The very nature of your offences renders it appropriate to consider your removal from Australia and I am sure most Australians would, without knowing the surrounding facts which I shall discuss shortly, agree with the cancellation of your visa and your deportation.
13. I have already noted that the sentencing judge was not persuaded that you may not re-offend. The point made by Ms Miller that the offences committed on your daughter and those subsequently committed against your grandchildren are separated by a period of 20 years, is hardly reassuring when considering the likelihood of your committing further similar offences. I note your wife has taken some responsibility for your offending, blaming her career aspirations for interfering in her being with you at home through the week. However, despite that I note the offences against your grandchildren occurred after your wife’s retirement.
14. I accept that the revelation of your offending will probably reduce the likelihood of it being repeated. There is always a risk and it is sometimes difficult to assess the level of risk to the community of someone like you re-offending. The Tribunal heard evidence from Mr Cummins, who is accepted as an expert psychologist. I note his conclusion that your offending was said to be situationally motivated and the chance of it being repeated, he thought, was now relatively low. On balance I am satisfied that the risk is in fact low and do not accept the respondent’s categorisation of it being medium or high.
15. With this type of offending I do not think the other matter I must take into account, namely deterrence, carries any or any significant weight.
16. I will now turn to your personal circumstances. You were born on 16 September and are now aged 74 years and suffer from the following conditions: type 2 insulin dependent diabetes, obstructive airway disease (which I take it is emphysema) ischaemic heart disease and stabilised angina. Your wife is 73 years of age and has had cancer, currently in remission and has suffered a heart attack. Your wife and other members of your family are all Australian citizens but you chose not to follow that course. You married your wife 55 years ago and she has, and is prepared to continue, to stand by you and resume a marital relationship with you. Your wife states that you provided well for the family and that they would be shattered if you could not spend your later years with her.
17. Your wife rose to a responsible position as a Governor of Prisons before her retirement in 1993. I accept her evidence, that she will resume a close relationship with you and that she would find it hard to cope without you and that she will ensure that you are supervised in the sense that you will continue to undertake living your daily lives in each other’s company. To her credit, your wife states her relationship and responsibility to you will take precedence over her relationships with her children, grandchildren and great grandchildren.
18. Your wife is clearly a strong willed woman and, as Mr Cummins pointed out, is a clear thinker and understands what restrictions will apply, not just to you, but also to her if you are able to resume living your lives together. I agree with Ms Miller that the effect on your wife arising from the disruption caused by you returning to resume your matrimonial life will add to, rather than lighten any other burdens she may have. It is however a burden she is prepared to take on.
19. I am entitled to take into account a further factor, namely, that you may not survive for the four and a half year period of parole. The sentencing judge expressed that view and having regard to your emphysema and general health, I think that is probably correct. I note that emphysema is a degenerative condition, immune from being halted by treatment.
20. You have three daughters and a son, all of whom live in Australia and all of whom are married. Neither your daughter, Edna, nor her family – including her son who you abused – have had any contact with you or other members of your family since 2001. Your son and his children, including his daughter who you abused, have had no contact with you since 2004, but are in contact with your wife. Two of your daughters and your son have all requested that you not be deported. Your daughter, Mrs Metcalf, stated she wanted the opportunity to re-establish a relationship with you and expressed her continuing love for you.
21. Despite the wicked offences you have committed against his daughter, your son also expresses his love for you and supports you remaining in Australia. I do not accept, as Ms Miller put it, that your son’s letter was written just, or perhaps more, to a view of supporting your wife wanting you to stay than it was in him wanting you to stay.
22. You have three remaining siblings still alive, all of them living in the UK. They are aged approximately 72, 74 and 84 years. You have little ongoing contact with them. The last time you saw them was about 10 years ago and they are probably not aware of the circumstances of your offending. None of them because of their ages, aside from anything else, would be able to provide you with support other than perhaps some emotional support, if they were so minded.
23. I accept that for whatever reason you were not assessed for participation in and you were not given the opportunity to participate in a sexual counselling program while you were imprisoned.
24. You have agreed to undertake, in addition to your parole conditions, a course of counselling arranged by Dr Cummins. Dr Cummins, while not a medical practitioner, is very experienced both inside and outside the prison system, with sexual offenders. There is what I would hold as a probability – not just a mere possibility – that in conjunction with medical practitioners who may be able to arrange for you to be given drugs to suppress your libido, and with neuro psycho therapy, that you will be treated to the extent that any repeat of your conduct will be further reduced. You are fortunate that your daughter or daughters will support you by paying the expenses involved.
25. While you have no relevant criminal record other than these offences I do note that the offences occurred over a number of years. I also accept that now, as distinct from the time that you were sentenced; you express remorse in relation to the offences. You have, as you said, had a long time in prison to think things over. While I have stated that the public would think your offences would, without more, warrant your visa being cancelled there are other circumstances to consider in reaching a balanced determination.
26. Your relationship with your wife over a 54-year period; the fact that three of your children support you staying in Australia and are prepared to provide you with financial support to have ongoing treatment; your own attitude that you would not go to your children’s houses unless invited; your and your wife’s health problems, your likely foreshortened life expectancy; the terms of your parole which should ensure you will not have contact with any of the victims or any under age child without the consent of your parole officer being first obtained; the fact that you have little or no family support if you are returned to the United Kingdom; the uncertainty of what, if any, official support you would receive if returned as against the guaranteed support you will receive if you remain in Australia. What I conclude is the reduced risk of recidivism; all combine to leave me satisfied that the decision under review should be set aside and the case remitted to the respondent with a direction to reinstate your cancelled visa. That is the decision of the Tribunal.
I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Mr G L McDonald, Deputy President
Signed: .....................................................................................
Personal AssistantDate of Hearing 7 April 2008
Date of Decision 7 April 2008
Counsel for the Applicant Mr M. Gerkens
Solicitor for the Applicant FCG Legal Pty LtdSolicitor for the Respondent Ms K. Miller
Australian Government Solicitor
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