Ian Cronin and Minister for Immigration and Border Protection
[2014] AATA 29
•23 January 2014
[2014] AATA 29
Division General Administrative Division File Number
2013/5612
Re
Ian Cronin
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Deputy President S D Hotop
Date 23 January 2014 Place Perth The decision under review is set aside and, in substitution therefor, it is decided that the applicant's application for a Bridging E (Class WE) (Subclass 050) visa not be refused under s 501(1) of the Migration Act 1958 (Cth).
…(Sgd) S D Hotop..........................
S D Hotop
Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – bridging visa – refusal to grant – applicant a citizen of Ireland – applicant sentenced to 4 years’ imprisonment in Ireland for offence committed in 2002 – applicant arrived in Australia in 2009 – applicant convicted of offences in Australia in 2010-2013 for which fined and not sentenced to imprisonment – applicant's visa expired in 2011 – applicant does not pass character test – discretion to refuse visa – best interests of children and other relevant considerations outweigh protection of Australian community – risk of future harm to Australian community by applicant not unacceptable – preferable decision is that visa not be refused – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 501(1)
Direction no 55 – Visa refusal and cancellation under s 501
REASONS FOR DECISION
Deputy President S D Hotop
23 January 2014
Introduction
Ian Cronin (“the applicant”) has applied to the Tribunal for review of a decision of a delegate of the Minister for Immigration and Border Protection (“the respondent”), dated 30 October 2013, refusing his application for the grant of a Bridging E (Class WE) (Subclass 050) visa (“the visa”). The delegate’s decision was made under s 501(1) of the Migration Act 1958 (Cth) (“the Act”).
The Factual Background
The applicant was born in September 1982 in Cork, Ireland and is a citizen of the Republic of Ireland.
The applicant first arrived in Australia on 20 February 2009 on a Working Holiday (Temporary) (Class TZ) visa and, with the exception of two periods of approximately one month each outside Australia (in October 2009 and December 2009/January 2010), he remained in Australia until 21 February 2011. On that date he departed Australia.
On 27 May 2011 the applicant returned to Australia as the holder of an Electronic Travel Authority (“ETA”) visa which authorised a stay period of three months.
From 27 August 2011, when the stay period authorised by the ETA visa expired, the applicant has remained in Australia without holding an Australian visa.
On 6 June 2013 the applicant made an application for the visa.
On 30 October 2013, pursuant to s 501(1) of the Act, a delegate of the respondent refused to grant the applicant’s application for the visa.
The Relevant Legislation
Section 501(1) of the Act provides:
“ The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.”
The “character test” is defined in s 501(6) of the Act which specifies various alternative circumstances in which a person does not pass the “character test” within the meaning of that section. In the present case, a relevant circumstance is that specified in para (a) of s 501(6), namely, “the person has a substantial criminal record (as defined by subsection (7))”. Section 501(7) specifies five alternative circumstances in which, for the purposes of the “character test”, a person has a “substantial criminal record”. In the present case, a relevant circumstance is that specified in para (c) of s 501(7), namely, “the person has been sentenced to a term of imprisonment of 12 months or more”.
The Ministerial Direction
In reviewing the delegate’s decision in this matter pursuant to s 500 of the Act, the Tribunal is required, by s 499(2A) of the Act, to comply with a direction given by the respondent under s 499(1) of the Act. The relevant direction, as presently in force, namely, Direction no 55 – Visa refusal and cancellation under s 501 (“the Direction”), was given by the respondent on 28 July 2012 and commenced on 1 September 2012.
Section 1 of the Direction includes (in para 6) a Preamble which contains (inter alia) “general guidance” for decision-makers acting under s 501 of the Act in the following terms:
“ 6.2 General Guidance
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
…
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizens [sic] visa under section 501. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B of this Direction.”
The principles referred to in para 6.2 are set out in para 6.3 as follows:
“ 6.3 Principles
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(4)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, 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.
(5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(6)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.”
Section 2 of the Direction, which is headed “Exercising the Discretion”, commences as follows:
“ 7 How to exercise the discretion
(1) Informed by the principles in paragraph 6.3 above, a decision-maker:
(a)must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; and
(b)is required to determine whether the risk of future harm by a non-citizen is unacceptable. This requires a balancing exercise, involving a consideration of the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community.
8Taking the relevant considerations into account
(1) Decision-makers must take into account the primary and other considerations relevant to the individual case, noting that there are differing considerations for visa holders and visa applicants as articulated in Parts A and B. Separating the considerations for visa holders and visa applicants recognises that persons holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3) Both primary and other considerations may weigh in favour of, or against, refusal or cancellation of the visa.
(4) Primary considerations should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.”
Part B (comprising paras 11 and 12) refers to the “primary considerations” and “other considerations” which, where relevant, must be taken into account by a decision-maker in deciding whether to refuse to grant a visa under s 501(1) of the Act. Those considerations will be relevantly referred to in detail later in these reasons.
The Evidence
The evidence before the Tribunal comprised:
·the “G Documents” (G1–G35, pp 1–174) lodged by the respondent on 29 November 2013 (Exhibit R1);
·Exhibits R2 and R3 tendered by the respondent;
·Exhibits A1–A17 tendered by the applicant; and
·the oral evidence of the applicant, Krystel Norris, and Dianne Norris.
The Applicant’s Criminal Record
The applicant’s recorded criminal history in Ireland and in Australia is as follows:
· Ireland
Court
Court Date
Offence
Offence Date
Result
Cork City Circuit Court
8 May 2003
Assault Causing Harm
9 September 2001
2 Years Suspended Sentence. Bound to the Peace for 2 Years
Cork City Circuit Court
4 May 2004
Assault Causing Serious Harm
17 February 2002
4 Years Imprisonment
Cork City Court No 1
15 November 2004
Criminal Damage
8 Months Imprisonment
Cork City Court No 1
24 September 2008
Urinating in Public Contrary to Public Decency
Fine: 200 euros
Cork City Court No 1
24 September 2008
Intoxication in Public Place
Fine: 100 euros
· Australia
Court
Court Date
Offence
Result
Darwin Court of Summary Jurisdiction
7 April 2010
Unlicensed
Uninsured Vehicle
Unregistered Vehicle
Fine: $400 (all charges)
Perth Magistrates Court
17 February 2011
Exceed .08%
No Authority to Drive
Fine: $700 Licence Disqualified for 5 months
Fine: $100
Perth Magistrates Court
16 October 2012
Exceed .08%
No Authority to Drive
Fine: $1,600 Licence Disqualified for 18 months
Fine: $300 Licence Disqualified for 3 months
Joondalup Magistrates Court
5 June 2013
Common Assault
Steal Motor Vehicle
Possesses a Prohibited Drug
Wilfully & Unlawfully Destroy or Damage Property
Fine: $900
Fine: $500
Fine: $300 on each charge
(G6, p 27; G9, p 35; G23; G30, p 166; G31)
The Offence of Assault Causing Harm Committed by the Applicant on 9 September 2001
A Statement of Evidence provided to the Cork City Circuit Court by Leonard Doyle states as follows:
“ At 10.00 pm on Saturday the 8th September 2001 I left my grandmother’s house in Rochestown and met my friends, … and …, in the Bohemian Bar, Douglas, where we stayed for half an hour and we then went to the Village Pub, Douglas, and stayed there until 12 o’clock. We went to the Savoy, Patrick Street, where I stayed until it closed at 3 o’clock approximately. I left with a girl at that time but cannot remember her name. Over the course of the evening I had about ten drinks. I was drunk but I have a clear recollection of what happened to me on the way home. I walked up Patrick Street alone, down the Grand Parade, Washington Street and along the South Main Street. I was on my way to K Cabs on Barrack Street. I was leaning against the wall of K Cabs waiting my turn to get a taxi. I was in the queue about one minute when I saw a person in front of me in the queue that I knew. This person was Ian Cronin. I went to school with his brother. Ian Cronin was staring at me. I felt apprehensive even though there had never been any trouble between us. He approached me and spoke to me. His manner was aggressive. He said I had insulted his mother a number of years ago. Previous to that he asked if I knew his brother, Robert, who I went to school with. I replied that I did know his brother. I did not remember insulting his mother but I was sorry if I did. I was nervous at this stage as he had a number of friends as many as ten closing in on me. One of them told me I had better leave. He was trying to stop Ian Cronin advancing on me. I turned and walked away. As I turned my back to walk away I was struck on the side of the face. I turned and saw Ian Cronin had done this. I was shaken by the blow. A friend of his bit me on the right ear. Ian Cronin tried to headbutt me. I tried to defend myself. I punched Ian Cronin about three times. At least five or six of the group with Cronin started to punch and kick me. I tried to run away. I got about ten yards before I was knocked over. I got a number of kicks when I was on the ground into the head mainly and the body. I managed to get up after the ferocity of the attack lessened and I ran down Barrack Street. They did not follow me very far. Two girls spoke to me near Paddy The Farmers Bar and helped me to the South Infirmary Hospital. I was bleeding from my eyebrow, my nose, lips and ear. I could feel pain all over my body. I was treated in the South Infirmary. The injuries I suffered were stitches to my eyebrow and ear, a broken nose, fractured rib. I had bruising on my body and face. I am fortunate that I am now on two weeks holidays to recover from my ordeal.
I spoke to Gda Sean O’Donoghue in the hospital on the night of the incident. I feel that I did nothing to start that trouble that occurred to me and the only action I took was to defend myself and to run way [sic].
…” (Exhibit R2)
The relevant offence is referred to in a Probation and Welfare Service Report to the Cork City Circuit Court, dated 5 November 2002, as follows:
“ Ian Cronin admits to the offence before the Court. He had being [sic] harbouring a grudge against the victim of the assault for some time, alleging that the victim had previously bullied his brother at school. When he saw him in the taxi queue that night he approached him, became aggressive and hit him. The victim ran away and he ran after him and hit him again. Ian says that 2 other men ran down and started hitting and kicking the victim. He says that he does not know the other 2 men who joined in the assault. When the fight finished he says he walked back to the taxi rank and the victim went towards town. He says that in hindsight he was stupid and that he regrets the assault. He says that he would like to apologise to the victim. He had taken drink and drugs on the night of the offence.” (G28, p 158)
The Offence of Assault Serious Causing Harm Committed by the Applicant on 17 February 2002
The relevant offence is referred to in a Probation and Welfare Service Report to the Cork City Circuit Court, dated 16 February 2004, as follows:
“ The defendant admits to his involvement in the offence before the Court. He had been at a christening that day and he had over 10 pints to drink. He had smoked cannabis and he had taken some speed. Mr Cronin says that he had been avoiding the city centre for 2 months as he had an assault charge pending but that he had accompanied a friend and 2 girls to town that night after the christening.
Mr Cronin says that he met a man he knew to see coming out of an alley. This man said had ‘been jumped’ up there and he asked the defendant to help. Mr Cronin went up the alley with this man who approached 2 others shouting and they started fighting. More joined in the fight and it spilled out onto the Grand Parade. Mr Cronin said he started fighting the victim on the Grand Parade. He remembers him falling and claims that more feet came in. He says that he was punched in the back of the head and started fighting the man behind him.
After the incident Mr Cronin says he panicked and contacted his friends to ask them to lie about what he was wearing, he gave his jacket to a girl but when he was arrested he says that he admitted to his involvement. The Garda involved confirmed that they had plenty of evidence to prove Mr Cronin’s involvement when they arrested him.
Two months prior to this offence Mr Cronin says he was drinking and using drugs on a regular basis. He spent a lot of time in town and he was ‘in the way of fighting’.
Following this offence the defendant sought help for his addictions. He says he feels desperate about the victim, that the victim’s life is ruined and that of his family and he wishes he was not responsible. Mr Cronin says it was an eye-opener to how he reacted to drink and that he would not get into fights when sober. The defendant appears genuinely remorseful for his involvement in interview.” (G29, pp 162–163)
The following article was published in The Irish News on 5 May 2004:
“ TWO men involved in a horrific row that left a gifted student with permanent brain damage were jailed for their roles in the attack yesterday.
Painter Ian Cronin (20) was given the four-year prison term for the ferocious assault on 23-year-old Denis Franklin in a row over hurling. Electrician William St Leger (20) received a nine-month sentence for violent disorder.
Denis Franklin, a former Limerick minor hurler from Pallasgreen, Co Limerick, is permanently disabled and hasn’t spoken a word since he was attacked in Cork city centre on February 17 2001 [sic].
During the trial, Cork Circuit Criminal Court heard that at one point Mr Franklin was confronted and attacked in a dark alley by up to 20 young men.
Cronin, of Shamrock Avenue, Douglas, Cork, pleaded guilty to assaulting Franklin, while St Leger, from Pinecroft, Douglas, Cork, admitted violent disorder.
Two other men – Robert Carlile and Alan Harte (both 21) – were found not guilty last March of assaulting Franklin.
Yesterday, Judge Patrick Moran said that the incident had appalling consequences for Denis Franklin and his family.
‘It was a nasty attack and it was cowardly as well. I have a duty to look after the interests of society and make sure young people can go out in this city for a social evening without ending up in hospital. I believe that four years is the appropriate sentence [for Cronin]’, he said.
The attack was sparked by a simple slagging match between two groups about the hurling merits of their native cities. However, the slagging quickly escalated, with tragic results.
Detective Inspector John Kelleher told the court that the victim had suffered a multitude of medical problems since 2001[sic].
‘Denis has had numerous medical problems including pneumonia, blood clots, and even skin-grafts. He has also had numerous operations’, he explained.
During the garda investigation, Cronin contacted a number of other witnesses in a bid to get them to lie about the clothing he was wearing that night. His girlfriend was asked to dispose of the jacket he wore.
But he eventually made a statement of admission to gardai and broke down after questioning them about what condition the young Limerick man was in.
He admitted he punched Franklin – and acknowledged joining another group kicking the young man on the ground.
‘I am so very sorry for taking his dreams away. I just wish it had never happened’, he told the Franklin family in court.
Cronin stressed he had quit alcohol and drugs and was receiving treatment for abusing both.
…” (G34)
The Applicant’s Evidence
The applicant tendered in evidence his statement, dated 23 December 2013, and he confirmed that its contents are true and correct. The applicant’s statement is as follows:
“ 1. I was born [in] September 1982 in Cork Ireland, I am an Irish Citizen.
2. I have two brothers and I am the second eldest.
3.From the age of 7 years I was playing football and all the way to my teenage years.
4.The last few years before I quit playing at 16 years old I captained our team. We proudly won promotion, finals of the local cup and quarter finals in a tournament over in Wales, where the team who knocked us out, won it. We were also the only Irish team there amongst Welsh, Scottish and English teams.
5.I started drinking alcohol and cannabis in my early teens.
6.I attended Douglas Community School in Douglas, Cork. I lost interest in school when I began smoking cannabis in year 9 and ended up leaving in year 11.
7.When I left school I soon began my Apprenticeship in Painting and Decorating, I was doing good, living at home, working hard, and going out at weekends with my friends.
8.I was in a long term relationship from 13 years of age till I turned 19 years.
9.My parents separated when I was sixteen years old, my father moved out and we stayed living with my mother.
10.Also when I began my apprenticeship I was experimenting with Class A drugs such as, ecstasy, speed and cocaine.
11.In my family, there has been a lot of alcoholism, 3 of my grand parents, my aunt and uncle on my mother’s side and my own father. Also myself and my younger cousin.
12.They are all sober today.
13.When my father was drinking we didn’t have much at all as he would drink it all. Because of this my brother got teased and bullied in school.
14.My father got sober when I was 6 yrs old after he attended rehab. His after care plan consist of attending AA Meetings and taking up a new hobby (Golf).
15.After my father got sober he began working away in Dublin and a few years later he would work over in England. When he worked in Dublin he was home Friday night till Sunday evening and when he worked in England was home the last weekend of every month. On my fathers time off home he would always go playing golf so us kids didn’t see him much.
16.When I started my apprenticeship and my father moved out I began drinking heavily. I would get paid on a Thursday so I would drink 3 – 4 nights of the week as well as smoking cannabis on a daily basis.
17.As I was now drinking and using drugs heavily it was putting a lot of strain on my relationship with my girlfriend. It was as if I had a new found love in drink and drugs and put my girlfriend second.
18.After a while I began to change mentally and physically, I was getting aggressive, paranoid, depressed and losing a lot of weight. All symptoms of alcohol and drug abuse.
19.I stayed out for days at a time not letting my family know where I was an missing days at work.
20.I had changed and I didn’t realise how much drink and drugs were having a negative effect on me, in every area of my life.
21.It was effecting my relationship, my work, my social life and my home life.
22.Between the ages of 18 and 19 years old I was charged with 2 assaults and convicted which I received a 2 year suspended sentence and a 4 year prison term.
23.I took full responsibility and pleaded guilty. I feel remorseful and regret for what I done.
24.The 2 year suspended sentence was due to my good behaviour by Probation and Welfare.
25.After these tragic events I went to rehab as I knew my addiction to alcohol and drugs was ruining my life and were major contributing factors to my offences.
26.I was working this rehab programme for four and a half months and doing very well at it. However, when I requested to go to my girlfriends deb ball (end of high school dance), my request was denied. At the time I felt being there for my girlfriend was more important than my rehab, so I dropped out, against the counsellors wishes. Unfortunately I didn’t relies how important it would be for me to stop this addiction.
27.When I went to prison in May 2004, I was determined to make my time easier and if possible, a little bit shorter with good behaviour.
28.I went to work in the kitchen so I could do my time productively. Oct 2005 I became a trustee in the prison, cleaning the governors office and also the staff office and kitchen.
29.In Xmas of 2005 I put in a request to get out for 3 days to spend Xmas with my family, this request was granted to me.
30.When I returned I requested a transfer to the Training Unit in Dublin, a semi open and low security prison.
31.Before I was granted this transfer I had to give clean urines for 6 weeks, I did this and received my transfer in Feb 2006.
32.In 2006, I was again granted 3 day release for Xmas.
33.My release date was 4th of May 2007.
34.I put in for a probation service scheme down in Cork (my home town). It is an Intensive Probation Scheme which addresses offending behaviour in a supportive setting and in Feb 2007 I participated in the course.
35.It was always my desire after I received my qualification for painting and decorating I would immigrate to Australia.
36.In 2008, I was out a year and began drinking and using again as I went back paling around with my old using friends. I was addicted to cocaine, marijuana and prescription drugs. I was arrested for urinating in public and intoxication in public.
37.I felt I needed to get away as my addiction was getting the better of me again. I wanted to follow my dream to go to Australia for a year or 2 and thought I would be a new man there so I did not disclose my criminal record as I thought this would stop me from fulfilling my dreams. I regret not disclosing my criminal record and take full responsibility.
38.I arrived in Australia on the 20th of Feb 2009 on a one year working visa.
39.A week after arriving I met my partner Krystel. I remember the first time I seen Krystel, I said to my mates ‘I would marry that girl’. We got together after that night and have been together ever since, with a period of separated.
40.When I met Krystel her son [J] was 18 months old, he is now 6 years old.
41.Krystel fell pregnant in June and gave birth to our son [JS] in 2010 on the … of Feb.
42.I received my second year working visa working up in Darwin. I returned to Perth to be with Krystel, [J] and our new born son [JS].
43.Before I returned to Perth I flew back to Ireland and flew to Thailand to see my father. On both occasions did not disclose my criminal prior offences as I had a child on the way and felt if I did this I would be neglected of being a father to my child and a partner to Krystel, also I did not want Krystel to bring up our child on her own.
44.When I returned to Perth to Krystel and the kids we were extremely happy.
45.We would do everything as a family, go to the parks, the zoo, pools and water parks. Krystel and I would have our date nights as her mother Diane looked after the kids.
46.I continued to drink and it was causing problems between Krystel and I. I also received a charge for drink driving, Jan 2011.
47.We decided I would go back to Ireland as my visa was coming to an end and sign myself into rehab and on my return we would apply for a De Facto Partner Visa.
48.I left Australia on the 21st of Feb 2011 and began a pre treatment programme for 6 weeks and then a residential programme for 28 days. When I complete the 28 days I was given a one year after care plan, which consist of 2 AA meetings a week and returning to football as a past time hobby. The success rate for people who do this programme with the after care plan is up around 90%.
49.While I was back in Ireland I was in contact with Krystel and the kids. We missed each other terribly and I wanted to return to them as soon as possible as did Krystel and the kids wanted me back.
50.I kept up my meetings for a month before I returned to Krystel and the kids in Australia. This was in June 2011.
51.Everything felt better than it had ever been, we were so happy to be back together again.
52.With everything feeling better than ever, I didn’t feel I needed to go to my AA meetings, I thought I could do it on my own.
53.Myself Krystel and [JS] attended one of my friends weddings in Melbourne. This wedding was in sept of 2011. I was sober now nearly 8 months.
54.In 2012 I was back drinking as I was not attending my AA meetings and fulfilling my after care plan.
55.My addiction to alcohol came between Krystel and myself, and we separated for a period of time. Even though we were separated I would speak to Krystel and the kids on a daily basis and stay with them a couple of nights a week. We would still do family days together. We would go to the beach, pools the parks and the football matches.
56.In Oct 2012 I was convicted of drink driving.
57.On boxing day 2012, I assaulted my partner Krystel as she would not let me see our kids for Xmas. I felt totally ashamed and regretful of my actions. It was a horrible time for all of us especially for Krystel and the kids as a result to my alcohol addiction. Thankfully Krystel forgave me and gave me a chance to make things right. I moved back in with Krystel and the kids.
58.I stay sobered and everything was going great again. We were all very happy and enjoying our family unit.
59.Everyday when I would come home the kids would be waiting for me, shouting ‘you can’t catch us Daddy’, and that would be us for the next half hour, interacting with the kids. Krystel knew she would have to wait till we all calmed down to find out how my day was and vice versa. Diane would always joke saying ‘I was as bad as the kids’.
60.May 2013 I was arrested on the assault charges against my partner Krystel and brought to Hakea Prison for 6 weeks. Soon as I arrived in Hakea I signed up for as many programmes as I could. During my six weeks I completed the Life Skills Intervention Programme and a course on blood-bourne viruses.
61.On the 6th of June 2013 I arrived at Perth Immigration Detention Centre.
62.Since coming to detention I have missed my partner Krystel and the kids. I feel I have let them down and I take full responsibility. They have already been effected by this situation.
63.Krystel and the kids come visit me 3 times a week and we speak a few times everyday.
64.It is breaking my heart seeing what it is doing to them, especially my son [JS] as he cant understand why daddy cant home with them when they are leaving.
65.[J] goes to his fathers every Friday till Sunday and it upsets our son [JS] as he cant stay here with me.
66.It is heart breaking seeing them being punished for my mistakes and I will do what it takes to change so I can stay here and be a family with them again.
67.I accept and acknowledge that I have a substantial criminal record in Ireland and have serious offences here in Australia which the sentence imposed by the court, I received fines for. I am remorseful and take full responsibility. I look at my offences and see alcohol and drugs have been contributing factors in 13 of my 16 offences. I have not received a sentence that holds a prison term since 2004.
68.I know now that I can stop this re occurrence by fulfilling my after care plan from rehab which consist of 2 AA/NA meetings.
69.Since coming to detention I have been attending AA/NA meetings on a weekly basis every Monday and feel I do not depend on alcohol or drugs anymore. I am more determined than ever to stay sober. I stay sober or I lose my family for good.
70.It is my dream since being brought to detention to get out to Krystel and the kids and be the happy family we dream and speak of. I want nothing more for this dream to come true.
71.I have being reading and educating myself with self help books, such as: The Power of the Subconscious Mind by Dr Joseph Murphy, Think and Grow Rich by Stuart Zidell and The Monk that sold his Ferrari by Robin S Sharma, an international speaker, top executive coach and No 1 best selling author of the field of personal development and life improvement.
72.I have learnt using these technique in these books is helping me change to be a better person, partner and father. I know by changing my thoughts positively, I am a positively changing. Setting goals and achieving them goals.
73.It is my/our goal to stay here in Australia with Krystel and the kids permanently. To give them a good healthy positive life. Everyday I visualise this life with my family. I try not to visualise beginning separated from them as this has to much of a negative effect. When these thoughts do enter my head I think happy thoughts like, us all at the beach a football match, any thing that brings a smile to my face.
74.This time I am at risk at losing my family and it scares me to the bone, to think that my son will lose his father, [J] lose his step dad and Krystel lose the man she loves and wants to be with.
75.We will be applying apply for a De Facto Partner Visa if the decision is over turned as we want to be a permanent family unit here in Australia.
76.I love and adore Krystel and the kids and want to give them I best I can in every area of life, emotionally, physiologically and financially.
77.I know if I am permitted to stay in Australia I will be a responsible member of the community, I am taking the necessary steps to do so and will keep doing so on release, and I will keep improving as I want to better myself more and more.
78.Krystel and the kids needs me and I need them. We have big plans in our future.
79.From the first night I met Krystel I said ‘I would marry that girl’, that has not changed. We as a couple and family want to extend our family to one more child. We also want to travel Australia with our kids before they begin their own families. We want to give our kids what Krystel and I didn’t have when we were growing up, a complete family unit with both parents under the same roof.
80.My son [JS] starts primary school in Feb and asks me can I bring him and collect him. I cant promise my son that at this moment in time, but it would be a dream come true for me and Krystel and our kids, if I am given the opportunity to do so, I know it would make [JS] very happy and proud to have his daddy there.
81.I know I cant change the past and lord knows I would do anything to do so but I am changing for the better and not going to repeat my mistakes from the past. I have been in here, separated from my family for 8 months and been thinking non stop about the positive change and the positive steps I need to take.
82.If I am forced to leave Australia I will never see Krystel or the kids again or at least for some years. It will have a detrimental effect on Krystel and the kids. Krystel suffers from depression and I know this will get worse if we are separated and also my kids will be effect emotionally and physiologically. It will be devastating to our relationship as Krystel cannot afford to fly herself and the kids to Ireland and cannot move there as [J’s] father is here in Australia and we do not want to separate him from his father either as it would effect them both. If I am forced to leave one of our sons if going be effected which will effect everyone close to them too.
83.If I am permitted to stay in Australia I will do the right thing by my family and by the Australian community. I am determined to do this, there is nothing else more important to me or Krystel, all we want is to be together.” [sic] (Exhibit A2)
In his Statement of Facts and Contentions, dated 23 December 2013, the applicant made the following statement by way of addressing (inter alia) certain considerations referred to in the Direction:
“ 1. The Protection of the Australian community
(a) The Seriousness and Nature of the Conduct
·I accept and acknowledge that I have a substantial criminal record in Ireland.
·Since arriving in Australia in 2009, my criminal record consist of offences which attracted fines, as sentences imposed by the courts.
·I have not received a direct prison term since 2004.
·My dependency on alcohol and drug use drove me into depression, aggressiveness and paranoia which were contributing factors in committing these offences. I am no longer alcohol and drug dependent as I am attending AA/NA Meetings here in PIDC and will continue to do so on my release.
·While common assault is a serious offence, it was regrettably against my partner Krystel. She has noticed a huge positive overturn in my personality. Krystel does not feel threatened in any way by my existence in her life as a partner and if I were permitted to remain in Australia, we will be applying for a substantial De Partner Facto Visa directly.
·I am not trying to minimise my involvement in the offences I committed in Australia, on the contrary I regret and feel responsible of these offences.
·I had pleaded guilty on the first instances as I knew I had done wrong.
·While providing misleading information to the authorities is completely unacceptable and a breach of trust, I deeply regret not disclosing my prior criminal offending.
·After my last offences in Ireland, I decided I wanted to follow my dream to immigrate to Australia, now that I had my qualification in Painting and Decorating.
·On the other occasion of not disclosing my prior criminal offending, I had learned that my partner Krystel was expecting our chid, I wanted to be a part of our child’s life and did not want Krystel to do this alone.
(b) Risk that I might re-offend
·I feel totally responsible about the way I have behaved and deeply regret the hurt I have caused my family and others.
·I know I can be a productive member of the community by the turn around of my behaviour and the positivity in my thinking.
·I truly know my alcohol and drug abuse were major contributing factors in my offending. I am attending AA/NA Meetings every Monday night here in PIDC since arriving here as this is and will help me immensely to staying sober from alcohol and drugs and also being a responsible and productive member of the community. I will also attend to 2-3 meetings a week on release.
·In May 2013, I completed a ‘Life Skills’ Intervention Program, in Hakea Prison. It was a 2 day voluntary programme, covering as follows:
·Change
·Communication Skills
·Dealing with Anger & Worry
·Referral to a Career development workshop.
·While being in detention I have being reading self help books, on personal development to help me change my way of thinking, to complete positivity, goal settings and achieving those goals.
·I have the full support of Krystel, her family and my own family.
·We want to apply for a substantial De Facto Partner visa so we can have a stable, permanent life here in Australia as a family.
·Being in detention for 8 months, separated from my partner and our kids has been a big realisation that staying sober and being responsible member of the community has to be one of my first priorities.
·I love my partner and our kids so much and I cant imagine my life without them.
·As the letter from my partner Krystel states, she clearly wants me to stay here in Australia with them as a family unit. Krystel and the kids visit me 3 times a week, every week, and we speak a few times a day on the phone on a daily basis.
·2 The Best Interest of The Children
·Section 501 discussed in detail the best interest of the children. As under Australia law and regulations always the best interest of the children is to remain with both their parents.
…
·My son [JS] cannot comprehend why he cannot come and stay with me here in detention, as his brother [J] 6, (step son) goes to stay with his Father, …, on the week-ends.
·I can’t entertain the thought of how my son will feel if I am deported from Australia and cannot see me at all, even though his Brother [J] will continue to see his Father every weekend.
·Krystel and I want nothing more than us to be a happily family unit and give our the kids the best up bringing we can provide and this can only be achieved in us as a family, not to be separated.
·3. Health
·Present time I have no health conditions, I keep myself considerably fit by training most days. If I am forced to leave Australia this would obviously impact on me emotionally and psychologically as I would be separated from Krystel and our kids. I don’t know how I would motivate myself without them.
·4. Ties to Ireland
·I have my Mother, Father and Brothers back home in Ireland. Work back home is hard to find due to the financial recession. As I have been abroad for over 2 years it will take as long as 3 months for me to claim welfare, I do not have anyone who can support me as my family are also struggling financially.
·5. Conclusion
·I am fully aware of my past offending behaviour and not proud of what I have done in the past.
·I hope you take into account that my substantial criminal record in Ireland is nearly dated 10 years ago and have served my punishment for those offences, and also, my offences here in Australia consist of offences that the sentences imposed by the courts consist of fines. I am remorseful and responsible of these offences.
·I know this is my last chance to keep my family together and stay with my partner Krystel and our kids, [J] and [JS], who I love and adore dearly.
·If granted this BV-E visa, it is our immediate intention to apply for a substantial De Facto Partner Visa.
·I am determined to continue attending AA/NA Meetings on a regular basis, as I know this where I failed in the past.
·Also, I will be looking to get a sponsor. Someone who has been sober for years and will guide me in the right direction to staying sober.
·Krystel could not afford to fly herself and the kids to Ireland to visit me nor could I, as work is very scarce back home due to the recession.
·Krystel and the kids could not move back to Ireland either as [J’s] Father … is here in Australia.
·Undoubtedly the separation of our family would cause huge detrimental effects emotionally, psychologically and financially on Krystel and the kids and also on myself.
·If I am permitted to stay in Australia I would return living with Krystel and the kids and also I have employment set in place.
·I would pledge to the Department of Immigration that I receive a warning for my character and that any further incidents may result in the cancellation of any visa I hold within Australia.
·I will do the right thing by my family and the Australian Community.” [sic] (Exhibit A1)
In cross-examination the applicant was questioned about the two abovementioned serious assault offences which he committed in Ireland on 9 September 2001 and 17 February 2002 and for which he was sentenced on, respectively, 8 May 2003 and 4 May 2004.
As regards the 2001 offence, the applicant said that he accepted the accuracy of the Statement of Evidence provided by Leonard Doyle, the victim of that offence (Exhibit R2 – set out in paragraph 14 above). He also said that he accepted the accuracy of the reference to that offence contained in the Probation and Welfare Service Report (G28, p 158 – set out in paragraph 15 above). He acknowledged that the kind of fighting involved in that offence was not an isolated incident for him and that he “used to fight a lot” at that time.
As regards the 2002 offence, the applicant acknowledged that it involved a very serious assault which had very serious consequences for the victim (then aged 23 years), namely, that he suffered, inter alia, brain damage and has been left in a permanent vegetative state, unable to see or speak, and is now being cared for in a nursing home.
The applicant was referred to the offence of criminal damage for which he was sentenced in Ireland to 8 months’ imprisonment in November 2004. He said that that offence involved his smashing a car window in early 2004. He explained that the car belonged to a person he did not like and that he was drunk at the time. He said that he served the 8 months’ sentence concurrently with the sentence of 4 years which he was already serving for the 2002 offence of assault causing serious harm.
The applicant said that he attended an alcohol and drug rehabilitation program for about 4½ months after the 2002 offence before going into prison and, while in prison from May 2004, he completed an anger management course. He said that he was in prison for 2 years and 9 months and that, after his release, he did not continue to attend Alcoholics Anonymous/Narcotics Anonymous programs and in 2008 he started drinking and using drugs again.
The applicant said that, after coming to Australia in February 2009, he continued to drink heavily and was twice convicted of drink-driving (in 2011 and 2012).
As regards the offences of which he was convicted in 2013, the applicant said that Krystel Norris had refused to let him see the children again because he was drinking and they had been “arguing a lot”. He said that he had asked her to meet him on Boxing Day 2012 but that he had also been drinking on that day and that, when they met, she told him that she would not let him see his son again. He said that he then became angry with her and he “grabbed her, shook her and hit her” by slapping her across the face. He said that she then ran off, whereupon he punched and cracked the windscreen of her car, and then drove around in her car looking for her but, having failed to find her, he parked the car in a nearby street and texted her and her mother to let them know where the car was, and he then arranged for a friend to pick him up. He said that the prohibited drug which he was convicted of possessing was steroids which he had taken in the past but which he was no longer taking.
The applicant said that he has now reached the point where he knows that he will not drink or use drugs any more. He acknowledged that he has previously attended drug and alcohol rehabilitation courses and vowed to stop drinking and taking drugs, but nevertheless continued to use drugs, drink to excess and commit offences, including an offence of violence as recently as Boxing Day 2012. He added, however, that he is now aware of “the reality of losing [his] family” and that that is “the scariest thing [he has] had to go through”. He said that he has been attending Alcoholics Anonymous/Narcotics Anonymous for the last 8 months while in immigration detention and that he will continue to attend that program upon his release. He said that “there is no way” that he will go back to drink and drugs because he realises that, if he does, he “will lose everything”. He acknowledged, however, that if he were to go back to drinking, there would be a risk of his behaving violently.
The applicant said that he has felt remorse, and will continue to feel remorse for the rest of his life, for the offence of assault causing serious harm, which he committed in Ireland in February 2002, which caused brain damage to the victim and has left him in a permanent vegetative state. He added that, when he puts himself in the victim’s shoes and realises what the victim’s family must be going though, not having him with them, he “completely regrets” what he did.
The applicant acknowledged that, in his prior visa applications in 2009 and 2011 and in his 4 incoming passenger cards in 2009, 2010 and 2011, he falsely declared that he had no criminal convictions, for the reasons explained in paras 37 and 43 of his statement of 23 December 2013 (Exhibit A2 – see paragraph 18 above). He also acknowledged that, since the expiration of his ETA visa on 27 August 2011, he has remained in Australia as an unlawful non-citizen and that during that time he was unlawfully employed and did not submit any income tax returns or pay any tax on his employment income.
The Evidence of Krystel Norris
Ms Norris confirmed that she had prepared a statement, dated 2 January 2014, for the purpose of this proceeding and that its contents are true and correct. That statement, which was tendered in evidence by the applicant, is as follows:
“ I am writing this letter of support for my partner Ian Cronin who I have known for nearly 5 years and been in a de facto relationship for 4 years. Ian and I are the sole cares for our children [J] 6 an Australian citizen and [JS] 3 years also an Australian citizen, who has had his visa refused under character grounds 501 of migration act 1958, on the 30th October 2013.
It’s in the best interest of our children [J] aged 6 and [JS] aged 3, [J] is Ian’s step son from my previous relationship, Ian has been apart if [J’s] life continuously for nearly 5 years. [JS] is Ian’s biological son who misses his father on a daily basis, our children miss their physical contact with their father. Like every father/son relationship they always play games together whether it be tickles, wrestling or just a kiss and hug to insure them everything will be ok.
In the statement of facts and contentions of the respondent response in paragraph 40: it states
‘The respondent accepts as did the delegate for the Minister of Immigration and Border Protection that it is in the best interests of the children to be raised by both parents. However, the respondent notes that the applicant and his partner have referred to their relationship as ‘on/off again’ and the applicant has been convicted of an assault against his partner’. I would like to state Ian and I did have a period of separation in late October 2011 for a short period of time, during this time Ian was still very much involved in our lives staying with us a several nights a week and daily contact on the telephone. In regards to the assault charge on me I find Ian to be no threat to me our children and he is very remorseful for his actions
In paragraph 43 it states:
‘Ian would be able to maintain his parental role if he is sent back to Ireland’. I find this to be absurd and completely unrealistic that Ian could still maintain his parental role as our children’s father via ‘electronic means of communication’ that are now available as the respondent suggests? There would be no physical contact between our children and Ian. How will Ian pick our kids up from school take them swimming to the beach, soccer training/matches tuck them in at night hug them to make them have that sense of security every child deserves for both parents via ‘electronic means of communication’?
When Ian returned to Ireland in 2011, we were on Skype Face book and email a lot this was emotionally hard and a very trying time for myself Ian and our children. A relationship via the internet or ‘electronic means’ is not a relationship a child and parent should not have to endure, this kind of ‘relationship’ is avoidable. Our family has always been together physically, this period now that Ian has been detained for is the longest we have been apart from each other.
We know an ‘electronics means’ relationship will not work as we went through this in 2011. Because there is no physical contact, it was very emotional and mentally draining trying to explain to our children why daddy was on the computer and couldn’t kick the ball or take them to the park regularly doing the things we enjoyed together as a family.
It is imperative that Ian remain in Australia with us, Ian is a very hands on father he misses his time with our children terribly and our children miss their time spent with Ian there father.
Ian is their father, their protector, their role model and man that our children admire adore and look up to, who deserve the right to a family life. To separate our children and myself from Ian is ultimately taking away our rights to a family life together, here in Australia.
The affects on children due to separation are frightening, if we are separated from being a family, our children could suffer the affects of:
·Worry of separation
·Guilt (that they caused the separation)
·They may feel rejected, because of separation
·Insecure
·Abandonment
As their parents Ian and I want to protect our children from ever having to feel these emotions at such a young vulnerable age. These are all issues our children will be faced with if we are separated.
Ian and I have our application for a substantive de facto visa filled ready to be submitted given we are granted BV-E. If you refuse our BV-E application in an essence you are taking away our right to lodge an onshore partner visa application, which is the key to our family staying intact.
I am aware of Ian’s criminal history, both here and Ireland, I can not comment on Ian’s offences in Ireland as I did not know him. Ian’s criminal record here in Australia has been imposed by the law with fines, which have been recovered. Ian acknowledges his wrong doing he is remorseful for his most recent charges he has admitted and accepted he has a problem with alcohol and wants to follow the right avenues to rehabilitation. Ian is a very honest person in regards to his past he is also very remorseful for what happened. I know Ian as a very caring loving man father partner and friend, whom I am privileged and proud to call my partner and father of our children.
Ian has served his time and accepted his punishment for his crimes. A refusal of BV-E will then enable us to lodge an onshore partner visa application. This will affectively ‘punish’ our family that is unwarranted as I breaks our family apart. We his family should not be punished any further by the government given Ian has already served his sentences and fulfilled all of the aspects of his prescribed punishment.
I know Ian is not a threat to the Australian community, myself or our children, he will be an outstanding law abiding permanent resident of Australia given the chance to remain here with us his family.
If Ian were separated from us I know it will be very detrimental to Ian’s success of being fully rehabilitated. Ian needs my support and our children’s support during rehabilitation. If Ian were removed you will be taking away our rights to a family here in Australia, with Ian myself and our children.
I have seen a significant positive changes in Ian since he was placed in detention these past eight months, attending AA meetings on a weekly basis with fellow clients at PIDC. Given the chance to continue his rehabilitation here with us in Australia, Ian will continue his AA meetings which are held several times a week in our area at the community centres and numerous other facilities.
We as parents do not want our children growing up resenting us, thinking that Ian left us on his own accord and abandon us. We think we are protecting our children from harm by misleading them, but ultimately we are setting our children up for a very hard and undue emotional roller-coaster in their adolescent years if Ian is removed from Australia. Our children should not have to go through or endure this sort of pain suffering and separation.
I am finding it increasingly difficult being separated from Ian, as I suffer depression and have done for some years, I have been on anti-depressants since the age of 15 years olds. My childhood was hard, my father left when I was just 3 years of age, due to both my parents having alcohol and drug issues, which my mother addressed and has been clean for sometime now.
My family is very supportive of our relationship. My family is very small there is myself an only child now as my brother died in an accident in 2008, my mother, father, my grandmother (fathers mother) and our two small children. My mother is from the ‘stolen generation’ and has never had a solid family unit of her own until recently, when she was reunited with her biological brother she had been separated from for some 30+ years.
…
I started binge drinking due to my brothers death it got considerably worse when [J’s] father and I separated in September of 2008. I met Ian 8 months after my brothers death, we got along like a two peas in a pod I talked with Ian and his two friends Shane and Pete. Ian and I exchanged numbers that evening parting our ways. We then started seeing each other a few times a week. Ian and I would go to Hyde Park for catch ups and play with [J].
Ian helped me emotionally and mentally to over come my binge drinking and erratic behaviour … at this point in my life, which I am truly thankful, and grateful for as I was not turning into a nice person, or role model for my child.
Ian and I continued our relationship and that’s when Ian became step father to [J] in early 2009 and we found out we were expecting our son [JS], he is Ian’s first son, he was born … February 2010. We were both elated and excited with the news, as was [J] when he knew he was going to have a little brother to look after and play with.
Our children are asking me not to go to work any more and want me home with them all the time, I know this is because of the separation from Ian. We all have endured a lot of emotions and heartache since Ian was detained. I fear for the mental and emotional affects this will have on our children as they are becoming aware of there emotions and feelings and are extremely vulnerable at their ages.
Our kids and I see Ian 3-4 times a week at Perth Immigration Detention Centre. We are trying to keep things as normal and stable for our children. [JS] our 3 year old is becoming increasingly angry frustrated, asking when is daddy finishing ‘work’ when will daddy be home? Most occasions when visiting PIDC [JS] will ask if daddy is coming home today? This is very trying and upsetting for me to consistently mislead my children. Our children do not deserve the pain and suffering of separation.
[JS] is to start kindergarten in February 2014, he is already asking if daddy will be picking him up from school, I cannot answer this question, as I do not know what our future holds. It’s very distressing, that Ian and [JS] may never have the proud father/son moment of first day at school being their for birthdays, not spending Xmas with as like we have endured and never want to go through again. Our children’s faces light up when they see their father. Our children are always excited and full of energy when we visit Ian at PIDC as they have their physical contact and can play there silly rough house games together like fathers and sons do.
Separation from Ian so far is already having a damaging affect on our children and myself. I will find it very hard to cope emotionally if Ian were sent back to Ireland, as Ian is my best friend the father of our children and partner and love, whom I miss terribly. My sleeping patterns have changed dramatically since Ian was detained. My depression has got increasingly worse with Ian being detained. I lost a lot of weight due to the stress and not knowing what the outcome will be for our family. I am still seeing my GP on a regular basis and using alternative methods to deal with depression via a healthy lifestyle going walking the gym and writing my thoughts down rather than taking prescription drugs as they have never worked for me in the past ...
Please take in to consideration the devastating and detrimental affects this will have on Ian our families myself and our children whom need there father available to them to play football, to go swimming the park, to do school drops and pick ups. All the things Ian has the right as a father deserves to do with his children. We all want to be reunited as a family together and our children to enjoy these things which may seem little but are the things we love to do as a family together.
Ian being removed from Australia will have a negative impact upon Ian myself and most importantly our children. Trying to explain these circumstances to a 3 and 6 year old why their father isn’t coming home is terrifying for me and I do not want our children to have to try a deal with the emotional and mental affects of separation. The impact it will have on all of us if we are separated is disturbing. As there mother I see how upset our children are on a daily basis from missing Ian.
My mother knows the psychological and emotional affects this will have on all of our families both here and Ireland. Mentally and emotionally my mother has been through some horrific and terrible experiences as a child, adolescent, adult mother and grandmother. Our children are our priority we want nothing more than to be a loving family who love support each other for years to come by remain together.
It is unrealistic for me to consider moving to Ireland with Ian and our children, as [J’s] biological father … is an Australian citizen and we do not want to separate [J] from his father as he has regular contact with him, and I do not want to affect there relationship, nor will I separate myself from my children nor do I want to separate my children from each other who love and adore each other very much, they are very close brothers. It will have a devastating affect on all of us mentally and emotionally if Ian were sent back to Ireland, which none of us is prepared for.
Ian would not be able to financially support us in Ireland, if we went back for a holiday as Ireland and several other euro countries are in recession which makes it very hard to find a secure stable job. Ian’s family would not be able to support us financially, due to the recession.
I have recently cut my hours from my position at… to spend more time with our children as [JS] thinks everybody is abandoning him. [JS] gets very upset when I have to go to work, this is distressing for me as I don’t want to leave him in a distressed state. [JS] has become very jealous of his brother if I show affection toward [J] first before [JS] when I arrive home from work, this I know is due to [J] having a relationship with his father and [JS] not being able to have see dad on a regular basis and bond the way father and son should and both need.
I enjoy my work, but if Ian is sent back to Ireland I will have to resign from my position with …, and become a full time stay at home mum, which is distressing for me. It will be financially very difficult, as the cost of living is so high and in my opinion the parenting payment is not realistic to our cost of living expenses in Western Australia.
I have worked since I was 15 years of age and have always earned an income, I will find it very difficult to manage our finances without my wages or Ian’s and living off a single parenting payment will be very difficult. I like to go to work an earn an honest income and to do the best for our children and provide them the best possible life I can give them, whilst we wait for a decision on our future.
I can not afford for our children to attend child care on my wages alone, as I do not earn enough, without Ian’s income it is hard for me to go to work as my mothers health is deteriorating and is very concerning to me, she is on the verge of diabetes has high cholesterol, high blood pressure and has a bad lumbar spine, she also suffers COPD and asthma which makes it hard for her to do everyday normal task like vacuum washing etc without feeling like she has run a marathon and feeling completely exhausted.
I cannot depend on my mother in the very near future to look after our children as they are quite energetic children and like to keep busy, my mother physically can not keep up with our children’s needs. My mother needs to get the proper treatment and care she requires to better herself physically.
Ian is a highly motivated person, who loves playing soccer with our children, going to the beach, he is a honest reliable hard working person who will always help out around the house read our children books before bed help [J] with his number and word cards for school, he wants to provide for his families future here in Australia together.
Ian can continue his rehab via the appropriate avenue to successful rehabilitation. Ian and I will attend counselling to learn and understand each other’s emotions, feelings and find productive and constructive ways to move forward and support each and successfully rehabilitate Ian in supportive manner.
Given the chance to remain here in Australia with myself and our children, Ian will be a respectable permanent resident of Australia who will abide by the Australia government and law enforcement agencies and the community, and continue his rehabilitation here with our children and my family as his support, and his primary consideration.
Ian understands the mistakes he has made in the past and is very remorseful and regrets the decisions he has made in the past, also the affect it has had on both of our families through this time.
I have watched our children suffer enough in the past 8 months, our children myself and Ian have the right to a family life in Australia, please do not take that away from us, I ask you to show compassion toward my partner Ian our children and myself we need Ian in our lives emotionally, physically. We love and adore Ian very much as he does us and we as a family want nothing more than our right to a family life in Australia together.
Thank you for reading my letter of support, please consider all aspects of my letter and the devastating, detrimental emotional and mental affects it will have on all of us, especially our children who deserve the right to a family life with both parent being made available to them. It is in the best interests of our children and our family to remain intact that Ian’s visa is not refused, and we continue to be a family in Australia.” [sic] (Exhibit A8)
Ms Norris also confirmed that, for a few months prior to Boxing Day 2012 (when the applicant assaulted her), she and the applicant had been living apart.
In cross-examination, Ms Norris said that she first met the applicant in February 2009 and they commenced a relationship shortly thereafter. She said that, about 8 weeks into their relationship, the applicant told her that he had been convicted of an assault offence in Ireland and had been imprisoned, but that he did not go into the details of the offence. She added that, about 2 years later, “out of curiosity” she “googled” the applicant’s name and then became aware of the details of the 2002 offence of assault causing serious harm. She said that, when she became aware of the effects on the victim of the 2002 offence, she was “fine with it because it was a long time ago” and the applicant had, as at that time, never displayed any violence towards her. As regards the applicant’s assault on her on Boxing Day 2012, she said that it was wrong of her to threaten him that she would take away the children and never let him see them again, and that it was that which led the applicant to be aggressive towards her. She said that, other than on that occasion, the applicant has never been aggressive towards her, and he has never been aggressive towards the children.
As regards the details of the applicant’s assaulting her on Boxing Day 2012, Ms Norris said that the applicant grabbed her by the arms, causing scratches and bruises to her arms, and shook her, but that he did not hit her. It was put to her that the applicant had testified that he slapped her but she said that she did not remember that happening.
Ms Norris said that, in the evening of Boxing Day 2012, she went to the police about the assault because she was afraid, but also in order to show the applicant that he could not “behave in that way and react in that way”, and that he needed to do something about it and to go and get the help that he needed to rehabilitate.
Ms Norris said that, if the applicant were removed from Australia, she would not accompany him because her older son [J] would not be able to leave Australia because of his father’s wishes and she would not leave Australia without [J]; nor would she separate herself from her mother who is her “best friend”.
Ms Norris said that she and the applicant wish to get married and have another child, buy a house, and establish a stable family life together in Australia.
The Evidence of Dianne Norris
Dianne Norris said that she is the mother of Krystel Norris. She confirmed that she had written a letter of support for the applicant to the Department, dated 4 July 2013 (G16, p 78), and a further letter, dated 2 January 2014, for the purpose of this proceeding (Exhibit A9). She confirmed that the contents of those letters are true and correct.
In her oral evidence she said that she was aware of the serious assault offence committed by the applicant in Ireland in 2002 and the devastating effect it had upon the victim, leaving him in a vegetative state and in a nursing home. She added, however, that, having known the applicant for the last 5 years, “that is not him” – “he is a nice person, he is caring, he is gentle” – although she is aware that he and her daughter “have had their differences”, including the assault on Boxing Day 2012.
In her abovementioned letter she referred to the adverse mental and emotional effects on the children and her daughter that the applicant’s removal from Australia would be likely to have. It is unnecessary to set out the contents of those letters in these reasons.
Analysis
Application of the “character test”
By reason of the fact that the applicant has been sentenced to terms of imprisonment in excess of 12 months, the Tribunal finds that the applicant has a “substantial criminal record”, as defined in s 501(7) of the Act, and that, by reason of s 501(6)(a) of the Act, he does not pass the “character test”.
It follows from that finding that the discretionary power to refuse to grant the visa, pursuant to s 501(1) of the Act, is enlivened in this case.
Should the discretionary power to refuse to grant the visa be exercised in this case?
The primary considerations
Paragraph 11 of the Direction states:
“ 11 Primary considerations – visa applicants
(1) In deciding whether to refuse a person’s visa, the following are primary considerations:
(a)Protection of the Australian community from criminal or other serous conduct;
(b) The best interests of minor children in Australia;
(c)Whether Australia has international non-refoulement obligations to the person.”
Protection of the Australian community from criminal or other serious conduct
Paragraph 11.1 of the Direction states:
"11.1 Protection of the Australian community
(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision-makers should also give consideration to:
(a) The nature and seriousness of the person's conduct to date; and
(b) The risk to the Australian community should the person commit further offences or engage in other serious conduct.
11.1.1 The nature and seriousness of the conduct
(1)In considering the nature and seriousness of the person's criminal offending or other serious conduct to date, decision-makers must have regard to:
(a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously;
(b) The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(c) Where the person is in Australia, that a crime committed while the person was in immigration detention; during an escape from immigration detention; after the person escaped from immigration detention, but before the person was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
(d) The principle that any conduct that forms the basis for a finding that a person does not pass the character test under s 501(6)(b) or (d), or is not of good character under s 501(6)(c), is considered to be serious;
(e) The sentence imposed by the courts for a crime or crimes;
(f) The frequency of the person’s offending and whether there is any trend of increasing seriousness;
(g) The cumulative effect of repeated offending;
(h) Whether the person has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(i) Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
11.1.2The risk to the Australian community should the person commit further offences or engage in other serious conduct
(1)In considering whether the person represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any likelihood that it may be repeated may be unacceptable.
(2)Decision-makers should also consider whether the purpose of the intended stay reflects strong or compassionate reasons for granting a short-stay visa. In making the risk assessment, decision-makers must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and
(b)The likelihood of the person engaging in further criminal or other serious conduct, taking into account:
i. information and evidence from independent and authoritative sources on the likelihood of the person re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and
iii. the duration of the intended stay in Australia.”
There can be no dispute that the assault offences committed by the applicant in Ireland on 9 September 2001 and 17 February 2002 – especially the latter offence of assault causing serious harm – for which he received substantial sentences of imprisonment (including an immediate custodial sentence of 4 years for the latter offence) should be viewed very seriously.
The Tribunal also regards the offence of criminal damage committed by the applicant in Ireland, for which he was sentenced to 8 months’ imprisonment on 15 November 2004, as serious.
The Tribunal notes, furthermore, that, after his first arrival in Australia in February 2009, the applicant was convicted of various offences in 2010, 2011, 2012 and 2013, none of which, however, involved the imposition of a custodial sentence. The Tribunal, nevertheless, regards, in particular, the offence of common assault, which the applicant committed against Krystel Norris on 26 December 2012, as a serious offence for present purposes.
The Tribunal also accepts the following contention in the respondent’s Statement of Facts and Contentions filed and served in this proceeding:
“28.The applicant also has a longstanding history of dishonesty in dealing with authorities. The respondent notes that the applicant admitted to attempting to persuade his then girlfriend and his friends to deceive the Garda in respect of his involvement in the 2004 conviction offence. Direction No 55 provides at paragraph 11.1.1(1)(h) that decision-makers must have regard to whether the person has provided false or misleading info [sic] to the Department including by not disclosing prior criminal offending in considering the nature and seriousness of the person’s conduct. In a clear attempt to deceive the Australian authorities, the applicant deliberately failed to disclose his Irish convictions on all four of his passenger entry cards. The applicant’s most recent visa was an ETA valid for three months, again obtained after misleading the Department, and which expired over two years ago. The applicant has never held a permanent visa and over half of the time spent in Australia has been here as an unlawful non-citizen. In short, the applicant has consistently and deliberately deceived the Australian authorities since his first arrival in Australia in February 2009.”
The Tribunal also notes that the applicant, according to his own evidence, has been employed unlawfully in Australia and has not lodged an income tax return, and has not paid any income tax, in respect of income earned by him from such employment.
There can, in the Tribunal’s opinion, be no question that the entirety of the applicant’s criminal offending and other unlawful conduct reflects very poorly on him and must be regarded very seriously for the purposes of para 11.1 of the Direction.
In considering the protection of the Australian community in this case, however, the Tribunal must have regard to, not only the nature and seriousness of the applicant’s conduct to date, but also the “risk to the Australian community should the [applicant] commit further offences or engage in other serious conduct”. The latter consideration involves, pursuant to para 11.1.1(2) of the Direction, consideration of, not only the “nature of the harm to individuals or the Australian community should the [applicant] engage in further criminal or other serious conduct”, but also the “likelihood of the [applicant] engaging in further criminal or other serious conduct …”.
Unfortunately, there is no authoritative objective evidence before the Tribunal regarding the degree of the likelihood or risk of the applicant’s reoffending. In the Tribunal’s opinion, however, the likelihood of the applicant’s engaging in further criminal or other serious conduct depends largely, if not wholly, on the likelihood of his abusing alcohol in the future. Indeed, the applicant, in his own evidence, frankly acknowledged that, if he were to resume drinking, there would be a risk of his engaging in violent conduct.
According to the evidence before the Tribunal, the last very serious offence involving violence towards another person, of which the applicant has been convicted, was the offence of assault causing serious harm which he committed on 17 February 2002. That offence occurred when the applicant was 19 years old and regularly abusing alcohol and illicit drugs and engaging in fighting in the streets of central Cork, Ireland.
The only subsequent offence involving violence towards another person, of which the applicant has been convicted, was the offence of common assault which the applicant committed against Krystel Norris on 26 December 2012 and for which he was fined $900. That offence was, according to the evidence of the applicant and of Ms Norris (which the Tribunal accepts), committed by the applicant when he was drunk and in response to Ms Norris’ telling him that she would not let him see his son and stepson again. The Tribunal also accepts Ms Norris’ evidence to the effect that that was the only occasion on which the applicant had displayed violence towards her since they met in February 2009.
As regards rehabilitation, there is evidence that the applicant has, both in Ireland and in Australia, undertaken courses and counselling in relation to his drug and alcohol abuse but has, nevertheless, relapsed, at least in respect of alcohol abuse, on a regular basis. From June 2013 to date, however, while the applicant has been in immigration detention, he has, according to his evidence (which the Tribunal accepts), been attending weekly Alcoholics Anonymous/Narcotics Anonymous meetings and he has vowed to continue to attend such meetings upon his release and to remain sober. There is also in evidence a letter from Tracey Watson, dated 24 May 2013, confirming the applicant’s completion of the “Life Skills” Intervention Program which she facilitated in Hakea Prison, in which she states:
“…
The purpose of this program is to encourage prisoners to engage in a therapeutic group learning process.
It has been designed to help enable the participants to recognise and start to address past destructive and/or criminal patterns and behaviours by developing more constructive coping mechanisms.
Ian was punctual and attentive thoughout the duration of the course.
He regularly made insightful and intelligent contributions to group discussions and activities, sharing personal experiences, examples, and opinions illustrating his understanding of the topics.
Ian showed great respect of [sic] other people’s beliefs within the group, listening attentively and making insightful observations, he was able to empathise with the other class members and relate back to his own story.
Ian was, overall a constructive member of the group.
…” (part of Exhibit A3)
The Tribunal, furthermore, accepts that the applicant has fully accepted responsibility for his past offending and is genuinely and profoundly remorseful for his serious offending, including, in particular, the offence of assault causing serious harm which he committed in Ireland in February 2002 and which caused brain damage to the victim and has left him in a permanent vegetative state and unable to see or to speak. The Tribunal also accepts the applicant’s evidence that he has now come to the realisation that, unless he refrains from alcohol abuse and remains sober, he will lose his family, comprising Ms Norris and the two children, whom he loves dearly.
In terms of para 11.1.2(2) of the Direction, the Tribunal has no hesitation in accepting that, should the applicant again engage in the kind of violent criminal conduct in which he formerly engaged in the streets of central Cork, Ireland when a young man under the influence of illicit drugs and alcohol 12 or more years ago, very serious harm would be caused to the Australian community. In the Tribunal’s assessment, however, the likelihood of the applicant’s engaging in that kind of conduct in Australia in the future is minimal.
As regards less serious, but nevertheless criminal, conduct, of the kind of which the applicant has been convicted in Australia, the nature of the harm that would be caused to the Australian community, should the applicant engage in further conduct of that kind, would be correspondingly less serious but would nevertheless include the kind of physical harm suffered by Ms Norris in the assault committed upon her by the applicant on 26 December 2012. The Tribunal accepts, however, that the applicant is very unlikely to abuse alcohol or illicit drugs in the future and, accordingly, is very unlikely to engage in drug-induced or alcohol-induced offending in the future. Likewise, given the applicant’s history of generally remaining crime-free when sober, the Tribunal accepts that it is very unlikely that he will engage in serious offending in the future.
Having regard to the abovementioned considerations, the Tribunal, in terms of para 11.1.2(1) of the Direction, does not consider that the applicant presently represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community. The Tribunal notes that (as stated in paras 6.3(5) and 11.1(1) of the Direction) there is a “low tolerance” for visa applicants who have previously engaged in criminal or other serious conduct. In the Tribunal’s opinion, however, the very low risk of future harm by the applicant is a risk which the Australian community, having regard to all the circumstances of the applicant’s case, should be prepared to tolerate.
Conclusion regarding the protection of the Australian community
Having regard to the considerations referred to in both para 11.1.1. and para 11.1.2 of the Direction, the Tribunal concludes that “primary consideration” regarding “protection of the Australian community from criminal or other serious conduct” weighs in favour of refusal to grant the visa, but that, by reason of the considerations referred to in paragraphs 49–57 above, it does not heavily so weigh.
The best interests of minor children in Australia
It is common ground that there are two minor children in Australia who will be affected by a decision to refuse to grant the visa, namely, [JS], the son of the applicant and Krystel Norris who is presently 3 years and 11 months old, and [J] the stepson of the applicant (being the child of Ms Norris from a former relationship), who is 6 years old.
The respondent rightly concedes that a decision not to refuse to grant the visa would be in the best interests of each of the abovementioned children and that, accordingly, this “primary consideration” weighs against refusal to grant the visa.
The matter for the Tribunal’s assessment, therefore, is the weight that should be given to this “primary consideration” in the circumstances of this case.
Paragraph 11.2 of the Direction states:
“ 11.2 Best interests of minor children in Australia affected by the decision
(1) Decision-makers must make a determination about whether refusal is, or is not, in the best interests of the child.
(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse to grant the visa is expected to be made.
(3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4) In considering the best interests of the child, the following factors must be considered where relevant:
(a)The nature and duration of the relationship between the child and the person. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the person is likely to play a positive parental role in the future (taking into account the length of time until the child turns 18), and including any Court orders relating to parental access and care arrangements;
(c)The impact of the person’s prior conduct, and any likely future conduct, and whether that conduct has, or will have, a negative impact on the child;
(d)The likely effect that any separation from the person would have on the child, taking into account the child’s ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the person has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the person’s conduct.”
As regards the applicant’s son, [JS], the Tribunal, on the basis of the evidence of the applicant, Krystel Norris, and Dianne Norris, makes the following observations in relation to the relevant factors set out in para 11.2(4) of the Direction:
·the applicant has had a very close, loving and caring relationship with [JS] since [JS’s] birth in February 2010 although, from February to May 2011, the applicant was in Ireland for rehabilitation purposes, and from the time of his detention in May 2013 to date, his contact with [JS] has been limited to 3–4 visits per week and daily telephone calls;
·if the visa (being a visa of a temporary nature) is granted to the applicant he will continue to play a very effective and positive parental role in Australia for the limited duration of the visa, and, in the event that he were subsequently granted a substantive, permanent visa, he would be very likely to continue to play such a parental role in Australia at least until [JS] turns 18;
·if the visa is granted to the applicant but, upon its ceasing to be in effect (the date of which is uncertain but, the Tribunal understands, may be in the relatively near future), the applicant is removed from Australia, he will thereafter be physically separated from [JS] (who will remain in Australia with Ms Norris) and the extent to which he would be able to continue to play an effective and positive parental role will be very substantially diminished in that it will be limited to electronic and other forms of distance communication and, perhaps, the occasional visit to Ireland by Ms Norris and [JS];
·the applicant’s prior conduct has not had a negative impact on [JS]; nor is the applicant likely to engage in conduct in the future which would have a negative impact on [JS];
·physical separation of [JS] from the applicant would be likely to have an adverse effect on [JS’s] psychological and emotional wellbeing and his social development and educational performance, notwithstanding the availability of electronic and other means of distance communication;
·[JS’s] mother, Krystel Norris, already fulfils an effective and positive parental role in relation to [JS], with the assistance of her mother, Dianne Norris;
·[JS] misses the applicant and wishes to have physical contact with him on a daily basis and not to be separated from him.
As regards the applicant’s stepson, [J], the Tribunal makes similar observations to those set out in paragraph 63 above, with the important exception that, because [J’s] natural father has played, and is likely to continue to play, a significant positive parental role in relation to [J], the physical separation of [J] from the applicant is likely to have a less adverse effect on [J].
Conclusion regarding the best interests of minor children in Australia
Having regard to the considerations referred to in paragraphs 63–64 above, and notwithstanding the limited duration of the visa (if granted), the Tribunal regards it as appropriate to give significant weight to this “primary consideration” which militates against refusal to grant the visa.
Whether Australia has international non-refoulement obligations to the person
Paragraph 11.3 of the Direction states:
“ 11.3 International non-refoulement obligations
(1) In cases where claims which may give rise to international non-refoulement obligations are raised by the person or are clear from the facts of the case, they must be given consideration if the person is in Australia.
…
(3)Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); and the International Covenant on Civil and Political Rights (ICCPR) and its Second Optional Protocol. …”
The applicant has not raised any claim which may give rise to international non-refoulement obligations; nor is any such claim clear from the facts of the applicant’s case. Accordingly, pursuant to para 11.3(1) of the Direction, the Tribunal is not required to consider such matters.
This “primary consideration” is, therefore, not applicable or relevant to the applicant’s case and the Tribunal, consistently with para 8(1) of the Direction, has not taken it into account.
Other relevant considerations
Paragraph 12 of the Direction states as follows:
“ 12 Other considerations – visa applicants
(1) In deciding whether to refuse to grant a visa, other considerations must be taken into account where relevant. These considerations include but are not limited to:
(a)Impact of visa refusal on immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely;
(b)Impact of a decision to grant a visa on members of the Australian community, including victims of the person’s criminal behaviour, and the family members of the victim or victims, where that information is available and can be disclosed to the person being considered for visa refusal;
(c)Impact on Australian business interests if the person’s visa application is refused.”
The Tribunal accepts the evidence of Krystel Norris regarding the impact which refusal to grant the visa would have on her – in particular:
·in the event that the applicant is removed from Australia, she will not be in a position to accompany him primarily because she will not separate herself from [J], whose father would not consent to his leaving Australia, or from her mother, Dianne Norris, who is not in good health and to whom she is very close and supportive;
·the physical separation of the applicant from her and the two children is likely to have a very adverse mental and emotional impact on her;
·such separation will also be likely to have an adverse financial effect on her in the future because it is unlikely that her mother will be able to continue to provide the amount of assistance in looking after the children which she presently provides, in which event she will probably have to resign from her full-time employment in order to care for her children on a full-time basis, and to rely on social security payments to meet their living expenses.
In short, the Tribunal accepts that a decision to refuse to grant the visa would be likely to have a very significant adverse effect on the mental health, general wellbeing, and financial circumstances of Krystel Norris. In the Tribunal’s opinion, these considerations unequivocally weigh against refusal to grant the visa.
Conclusion - the Preferable Decision
Having taken into account the relevant “primary considerations” and other considerations in this case, the assessment of the Tribunal is that the “primary consideration” regarding “the best interests of minor children in Australia”, and the other relevant considerations discussed in paragraph 70 above, which weigh against refusal to grant the visa, collectively outweigh the “primary consideration” regarding “the protection of the Australian community”, which weighs in favour of refusal to grant the visa.
Furthermore, in the course of discussing the “protection of the Australian community”, the Tribunal, for the reasons discussed in paragraphs 49–56 above, has formed the view that the applicant, notwithstanding his prior serious offending, does not presently represent an unacceptable risk of harm to the Australian community.
Accordingly, pursuant to para 7(1) of the Direction, the Tribunal determines that:
·the risk of future harm to the Australian community by the applicant is not unacceptable; and
·the applicant has not forfeited the privilege of being granted the visa.
The Tribunal concludes, therefore, that the preferable decision in this case is that the applicant’s application for the visa not be refused under s 501(1) of the Act.
Decision
For the above reasons, the decision under review is set aside and, in substitution therefor, it is decided that the applicant’s application for the visa not be refused under s 501(1) of the Act.
I certify that the preceding 76 (seventy-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop ...(Sgd) T Freeman............................
Administrative Assistant
Dated 23 January 2014
Date of hearing 9 January 2014 Representative of the Applicant In person (unrepresented) Representative of the Respondent Mr A Gerrard Solicitor for the Respondent Australian Government Solicitor
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