JAMES WOOD and MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

[2005] AATA 513

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/170

GENERAL ADMINISTRATIVE  DIVISION		)
Re		JAMES WOOD

Applicant

And MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Deputy President Don Muller

Date2 June 2005  

PlaceBrisbane

Decision The Tribunal affirms the decision to cancel the Special Category Visa of James Wood, pursuant to subsection 501(2) of the Migration Act 1958.

...............SIGNED...............................

D.W. MULLER

DEPUTY PRESIDENT

CATCHWORDS

IMMIGRATION – cancellation of Special Category Visa – substantial criminal record – further recent criminal convictions – does not pass the character test – discretion not exercised in applicant’s favour – decision affirmed

Migration Act 1958: s499, 501

REASONS FOR DECISION

Deputy President Don Muller        

1.      James Wood is a citizen of New Zealand who has been living in Australia since he first entered Australia on 24 January 1987.

2.      On 1 September 1994 he was granted a Special Category Visa (Subclass TY-444).

3.      Between mid-1994 and late 2003, Mr. Wood committed a large number of criminal offences in Queensland and New South Wales.  He was convicted and sentenced to various fines and terms of imprisonment.

4. On 9 March 2005, a decision was made by a delegate of the Minister to cancel Mr. Wood’s visa pursuant to s.501(2) of the Migration Act 1958 (the Act), on the ground that he did not pass the character test.

5.      Mr. Wood does not wish to return to New Zealand.

6.      Mr. Wood seeks a review of the decision to cancel his visa.

7.      The material placed before the Tribunal shows that:

(a)James Wood was born in New Zealand on 12 March 1976.

(b)He entered Australia as a ten year old with his mother, stepfather and half sister on 24 January 1987.

(c)He returned to New Zealand for a family holiday for about two weeks in January 1990, when he was thirteen.

(d)He grew up believing that his mother’s husband, Gary Wood, was his father.  It was not until he was about 20 years of age that he discovered that Gary Wood was not his biological father.

(e)Gary Wood was an alcoholic who regularly beat and abused his wife (James Wood’s mother).  Eventually the marital relationship ended and James Wood’s mother then entered into a relationship with another man.  This occurred when James Wood was about 13 years of age.

(f)James Wood discovered that his biological father had also migrated to Australia and was living in Northern New South Wales.  Contact was made between the two of them.  Mr. Wood’s biological father wanted to get to know his son but Mr. Wood was not particularly receptive to the attempt.

(g)Mr. Wood started smoking marijuana at about the age of 14 years.

(h)He completed year 10 at Banyo High School in Brisbane.

(i)He obtained a job in 1995, making pallets for a brewery.  He did this for about 18 months.

(j)He started using heroin in 1997 when he was about 20 years of age.

(k)On 28 December 1997, Mr. Wood began a relationship with Sonja W.  This relationship continued until December 2001.  On 4 November 1999 their son was born.

(l)In 2000/2001, Mr. Wood obtained a job making pet food.  He held this job for about two years.

(m)In October 2001, Mr. Wood attempted to commit suicide by slashing his wrists.  He was hospitalised at the Gold Coast Hospital.

(n)On 2 May 2003, Mr. Wood was involved in a serious motor vehicle accident.  He was a pedestrian and was struck by a motor vehicle.  He was hospitalised at the Princess Alexandra Hospital, Brisbane.  He was given morphine and other drugs for pain relief.

(o)He was released from hospital on 9 May 2003 and thereafter returned to using heroin.

(p)All of Mr. Wood’s immediate family are in Australia.  He knows no one in New Zealand.  He does not know if his grandparents are still alive.

(q)His son is now five years old.  He has had very little contact with his son.  His former partner, the mother of his son, has placed no obstacles in the way of his having access to his son.  She is now in a new matrimonial relationship.  The last time Mr. Wood saw his son was March 2003.

8.      The criminal history of Mr. Wood is extensive.  The various reports placed before the Tribunal show that Mr. Wood first came into contact with the wrong arm of the law in 1994 for offences of possession of nunchakus without lawful excuse and wilful damage to property.  The Beenleigh Magistrates Court sentenced him to 12 months probation and ordered him to pay $231 restitution.  Thereafter he has been committing criminal offences on a regular basis.  The following is a summary of his criminal history.

·December 1994 – 12 months probation, 100 hours of community service and $100 restitution for wilful and unlawful damage to property.  (Brisbane Magistrates Court)

·1995 – 2 breaches of Community Service orders.

·20 January 1997 – Malicious Damage, fined $250 – Steal from Dwelling, Larceny, Break enter Steal – four months imprisonment (Tweed Heads Local Court).

·3 April 1997 – Stealing – 1 month imprisonment (Mullumbimby Local Court)

·10 October 1997 – fined the sum of $75 in default 3 days imprisonment for the offence of using threatening, abusive or insulting words on 26 September 1997 (Southport Magistrates Court)

·5 February 1998 – Break, Enter Dwelling, Stealing – six months imprisonment and 3 years probation, ordered to pay $430 restitution (Southport Magistrates Court)

·22 October 1999 – Use insulting words and obstruct police officer – fined $100 and $150 for the respective offences and ordered to pay $300 restitution (Southport Magistrates court)

·8 March 2000 – charged with Robbery, Robbery in company, assault with intent to rob armed with offensive weapon and drive conveyance taken without the consent of the owner – remanded in custody until he was bailed.  He was committed to trial however failed to make an appearance and a bench warrant was issued.  (Mr. Wood claims that while he was in custody he was raped by two other  inmates.)

·25 May 2000 – breach of probation order imposed on 5 February 1998 – sentenced to six months imprisonment (Southport Magistrates Court)

·20 December 2001 – Fraud – dishonestly obtaining property of another – 14 days imprisonment suspended for 2 years restitution $40 (Coolangatta Magistrates Court)

·4 November 2001 – Breach of bail, unauthorised dealing with shop goods, stealing, wilful damage to police property – fined a total of $525 and sentenced to 5 months imprisonment (Southport Magistrates Court)

·16 June 2003 – Unauthorised dealing with shop goods – fined the sum of $150 (Brisbane Magistrates Court)

·29 July 2003 – 2 October 2003, Mr. Wood committed 21 property and dishonesty related offences.  He was later convicted on 6 November 2003 of 7 of the offences – the balance went undetected by police.

·3 and 4 October 2003 – breach of bail conditions (x 2) – breach of bail undertaking – sentenced to 3 x 14 days imprisonment, cumulative (Southport Magistrates Court)

·8 October 2003 – Driving whilst prohibited fined $450 by the State Penalties and Enforcement Registry in Qld.

·6 November 2003 – Unlawful entry of a motor vehicle with Intent to Commit an Indictable Offence, Stealing, Fail to Take Reasonable Care and Precautions with a Syringe and Needle, possession of Instrument with Intent to Commit an Indictable Offence, Possession of tainted property (x 2) and receiving stolen property – 12 months imprisonment with 53 days spent in pre-sentence custody declared time already served (Southport Magistrates Court)

·1 March 2004 – Obstruct Corrective Services Officer – 1 month imprisonment cumulative (Inala Magistrates Court)

·April 2004 – Mr. Wood contacted the Gold Cost detectives advising that he intended to conduct a voluntary “clear up” of outstanding offences.

·29 April 2004 – Mr. Wood made full and frank admissions to the outstanding offences he committed between 29 July 2003 and 2 October 2003.  He also participated in what is known as a “drive by” identification of crime scenes.

·11 June 2004 – convicted of 14 outstanding dishonesty and property offences, as well as an offence of Assault Occasioning Bodily Harm committed in August 2002 – sentenced to 12 months imprisonment on all offences, to be suspended after serving three months, to be served concurrently with the sentence he received on 6 November 2003. (Southport District Court).

·1 March 2005 – Mr. Wood was released from custody at the Sir David Longland Correctional Centre in Queensland and transported to the Brisbane City Watch house and charged with a further offence of Break and Enter with Intent arising out of the “Clear up” conducted with the Queensland police Service in April 2004.

·2 March 2005 – Mr. Wood was convicted and not further punished in the Brisbane Magistrates Court with respect to the offence of Enter or be in Premises with Intent to Commit an Indictable Offence.

When released on 1 March 2005, Mr. Wood had served a total of 17 months in prison.  This comprised of the 12 month sentence imposed on 6 November 2003, one month sentence imposed on 1 March 2004, 2½ months imprisonment to clear up all un-paid fines and a period of 42 days for previous breaches of bail.

Upon his release from custody Mr. Wood was extradited to New South Wales to face the outstanding offence which was committed in March 2000.

·11 May 2005 – convicted and sentenced for the March 2000 offence – sentenced to 18 months imprisonment to be released after having served six months (Lismore District Court).  The charge on which he was convicted was “Use Disguise or Blacken Face with Intent to Commit an Indictable Offence”.

9.      The legislation relevant to this review is contained in subsections 501(2), (6) and (7) of the Act.  They provide:

“s.501

(2)  The Minister may cancel a visa that has been granted to a person if:

(a)the Minister reasonably suspects that the person does not pass the character test;   and

(b)the person does not satisfy the Minister that the person passes the character test.

…..

Character test

(6)For the purposes of this section, a person does not pass the character test if:

(a)the person has a substantial criminal record (as defined by subsection (7));  or

…

(c)having regard to either or both of the following:

(i)the person’s past and present criminal conduct;  or

(ii)the person’s past and present general conduct;

the person is not of good character;  or

(d)in the event the person were allowed to enter or to remain in Australia, there is significant risk that the person would:

(i)engage in criminal conduct in Australia;

Otherwise, the person passes the character test.

Substantial criminal record

(7)For the purposes of the character test, a person has a substantial criminal record if:

…

(c)the person has been sentenced to a term of imprisonment of 12 months or more;  or

(d)the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more.”

10. There is no doubt that Mr. Wood has been sentenced to a term of imprisonment of 12 months or more. He therefore has a substantial criminal record within the meaning of that term in subsection 501(7) of the Act. He is therefore deemed by subsection 501(6) to not pass the character test. Consequently, the delegate of the Minister was entitled to cancel Mr. Wood’s visa under subsection 501(2) of the Act.

11.     However, notwithstanding the fact that the decision to cancel Mr. Wood’s visa was justified, section 501 allows for the decision-maker to exercise a discretion in each individual case.  The Minister has issued a Direction (number 21), pursuant to the provisions of s.499 of the Act, which contains matters which decision-makers (including the Tribunal) are to take into account in exercising the discretion.

12.     The Minister’s Direction 21 contains a large number of matters which a decision-maker should take into account in assessing whether discretion should be exercised in favour, or otherwise, of a person whose visa may be cancelled.  A number of the matters do not apply to Mr. Wood.  I regard the following matters as relevant to this review.

Protection of the Australian Community

13.     The crimes that Mr. Wood committed in relation to stealing from homes and motor vehicles are particularly odious.  They are crimes which are not necessarily physically dangerous to the public, but they cause great distress to the victims, who feel that their privacy has been invaded.  It makes the victims feel less secure in their homes, particularly the aged and more vulnerable members of our community. The Australian community is entitled to be protected against persons who perpetrate such crimes.

14.     In a case such as that of Mr. Wood, the question of the risk of recidivism has to be considered.  If he is permitted to remain in Australia, will he continue to be a serial pest?  If the last 10 years are anything to go by, he appears not to have reformed at all.

15.     Mr. Wood agreed with the propositions put to him during cross-examination that he had first become aware of the possibility of being deported to New Zealand in December 2002, when he received a letter from the Respondent informing him of the intention of the Minister to cancel his visa.  Mr. Wood responded to the letter in January 2003.

16. On 5 February 2003 the then Minister decided not to cancel Mr. Wood’s visa pursuant to s.501(2) of the Act. However, Mr. Wood was required to sign a Declaration that he understood that any further conviction would result in the question of visa cancellation being reconsidered by the Minister or his or her delegate. Mr. Wood signed the Declaration on 12 February 2003.

17. Mr. Wood was given further notices of intention to cancel his visa under subsection 501(2) of the Act on 6 April 2004 and again on 15 October 2004.

18.     In response to the notice dated 6 April 2004, Mr. Wood replied to the Respondent on 29 April 2004.  He said words to the effect that:

·     He wanted to stay in Australia.

·     He was doing everything he could to correct his criminal behaviour.

·     He was trying to address his drug problem.

·     He expected to be sentenced in June for the crimes he had committed and he would be asking for a four year sentence with a strict parole period so that he could do all of the courses necessary to allow him to lead a normal life.

·     He also wanted to rebuild his relationship with his son.

19.     He replied to the 15 October 2004 notice by a letter received by the Respondent on 16 November 2004.  He said:

·     He had lived in Australia for 20 years and did all of his schooling here.

·     He hoped to be able to play an active role in his son’s development.

·     He has no ties whatsoever in New Zealand.

·     He is still battling drug addiction.

·     He would like to become an Australian citizen.

20.     It is noted that after Mr. Wood signed the Declaration on 12 February 2003, he went on to commit a large number of property and dishonesty offences between mid June 2003 to early October 2003. He has not committed any crimes since early October 2003.  He has been in prison continuously since that time.

21.     It is to his credit that he decided in April 2004 to address the outstanding crimes by admitting to them, thereby cleaning his slate to some extent.  However, he did concede that he decided to come clean after he received the Respondent’s letter in April 2004.

22.     It is never easy to attempt to predict whether or not a person with a criminal record will revert to their previous pattern of criminal behaviour when they are released from prison.  However, in the case of Mr. Wood it is clear that he has been given numerous opportunities of which he has failed to take advantage.  He has been given terms of probation, community service, short prison terms, long prison terms, bail and a warning from the Minister in December 2002.  He squandered the chances he was given.  He thumbed his nose at the warnings.  I believe that in the case of Mr. Wood there is a significant risk of recidivism.

Expectations of the Australian community

23.     I believe that it would be the expectation of the members of the Australian community that Mr. Wood not be permitted to remain in Australia.  He has had a fair chance to prove himself worthy of being able to live in Australia and he has failed miserably.

The best interests of children

24.     Mr. Wood has a five year old son.  He has had very little contact with the boy.  His son is an Australian citizen who lives with his mother who is also an Australian citizen.  Mother and son are now part of a new family relationship.  Re-location of Mr. Wood’s son to New Zealand is clearly out of the question.  If Mr. Wood returns to live in New Zealand he will no doubt lose contact with his son.  This may be hard on Mr. Wood, but I doubt whether it would make much difference to his son.  They hardly know each other.

25.     I do not regard this factor as particularly important in this case.

Other factors

26.     Mr. Wood has no close family ties to New Zealand.  He would be a complete stranger there.  All of his immediate family members live in Australia.  They consist of his mother, two half-sisters, biological father and son.

27.     I have no doubt that Mr. Wood’s mother, half-sisters and biological father feel very sad about the way Mr. Wood’s life has gone so far.  I also accept that they would be as supportive as they could be of Mr. Wood if he remained in Australia.  However, the plain fact of the matter is that they would suffer no particular hardship if Mr. Wood was deported to New Zealand.

28.     I find that the Primary Considerations set out in the Minister’s Direction 21 far outweigh any other considerations.

29.     The discretion allowed for under s.501 should not be exercised in Mr. Wood’s favour.

30.     The decision to cancel Mr. Wood’s Special Category Visa is affirmed.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller

Signed:         .....................................................................................
           R. Link, Associate

Date/s of Hearing  24 May 2005 
Date of Decision  2 June 2005       
Solicitor for the Applicant           Ryan & Bosscher Lawyers
Solicitor for the Respondent      Clayton Utz Lawyers