Jan and Minister for Immigration and Multicultural and Indigenous Affairs

[2006] AATA 112

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 112

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   N2005/1535

GENERAL ADMINISTRATIVE DIVISION		)
Re		Naeem Jan

Applicant

And Minister for Immigration and Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal Professor GD Walker, Deputy President

Date10 February 2006

PlaceSydney

Decision The decision under review is affirmed.

..............................................

Professor GD Walker
  Deputy President  

CATCHWORDS

IMMIGRATION – cancellation of visa on character grounds – substantial criminal record including importation of cocaine – discretion that the tribunal may exercise where the applicant fails the character test – necessity to balance the protection and expectations of the Australian community against hardship to the applicant and his family if he were returned to his country of origin – examination of his criminal conduct, rehabilitation and family situation – applicant conceded that he failed the character test by reason of his substantial criminal record – found the applicant’s criminal record is reprehensible, there is a significant risk of recidivism, the applicant had previously been warned about possible deportation, the best interests of the applicant’s children weigh against visa cancellation but do not outweigh the considerations of community protection and expectations – the decision under review is affirmed.

Migration Act 1958 ss 499, 501, 501(1), 501(2), 501(6)(c)(i), 501(7)

Re Sam andMinister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003

Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133

Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608

REASONS FOR DECISION

10 February 2006	Professor GD Walker, Deputy President
Summary

1.      The applicant, Naeem Jan, aged 46, is a citizen of Pakistan.  He first came to Australia on 11 March 1986 as a visitor, departing on 9 September 1986.  He was granted a subclass 155 category BB return (five year resident return) visa on 7 November 1996.  He was refused Australian citizenship on 12 June 1998.   Between 1992 and 2000 he was convicted of four very serious drug-related offences for which he was sentenced to imprisonment of more than 10 years.

2.      On 4 October 2005, a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, cancelled Mr Jan’s spouse visa on the ground that he failed the character test because of his substantial criminal record in Australia and past and present criminal conduct.  That is the decision to be reviewed by the tribunal.

Issue

3. Before the hearing, the applicant conceded the fact of his criminal convictions, his substantial criminal record and his exposure to the cancellation provisions under s 501 of the Migration Act 1958. The issue remaining, therefore, is whether the tribunal should exercise the discretion under s 501(2) not to cancel Mr Jan’s visa.

Background

4.      The applicant, Mr Jan, was born in Pakistan on 2 January 1960 and is aged 46.  He is a citizen of Pakistan.  The applicant and his former wife, Rena Jan, have three children, Ismail Jan aged 14, Sarah Jan aged 9 and Yusuf Jan aged 6.  Mr Jan first arrived in Australia on 11 March 1986 as the holder of a visitor visa, departing the country on 9 September 1986. He arrived again on 8 May 1987 and departed 1 October 1989 (G3 p25).  On 29 October 1990, Mr Jan was granted a subclass 100 spouse visa on the basis of his then marriage to Mrs Jan.  He returned to Australia using his subclass 100 visa on 17 November 1990 (G3 p25).  

5.      On 19 June 1991, Ismail Jan was born.  Mr Jan departed Australia again on 29 July 1991, returning on 28 October 1991.

6.      On 8 January 1992, Mr Jan was charged with supplying a prohibited drug (heroin) and conspiring to supply, and on 10 December 1992 in the Sydney District Court, he was convicted and sentenced to six years imprisonment with a non-parole period of four years for conspiring to supply a prohibited drug and six years imprisonment with a non-parole period of four years for supplying a prohibited drug (heroin).  An appeal against the severity of the sentence was dismissed on 11 May 1993 (G p37).

7.      On 29 August 1994, Mr Jan was notified by the then Department of Immigration and Ethnic Affairs that he had become liable for deportation after being convicted at the Sydney District Court on 10 December 1992.  However, it had been decided on that occasion not to order his deportation but to issue him with a very strong warning that any further conviction would lead to his deportation being reconsidered.  Mr Jan acknowledged receipt of this letter at Silverwater Correctional Centre on 28 August 1994 (G11 p92).

8.      On 6 January 1996, Mr Jan was released from prison and on 8 May 1996, Sarah Jan was born.

9.      On 7 November 1996, Mr Jan was granted a subclass 155 category BB return (five year resident return) visa.  He departed Australia on 19 November 1996 returning on 18 December 1996 (G3 p24). He departed again on 8 January 1998 returning on 26 February 1998.

10.     On 14 January 1999, Mr Jan’s and Mrs Jan’s third child, Yusuf Jan, was born.   Mr Jan returned to Pakistan on 6 February 1999, returning on 8 April 1999,  on 2 July 1999 he departed again, returning 6 July 1999; he departed again on 3 February 2000, returning 18 March 2000; he departed 3 February 2000, returning 18 March 2000; and he departed again on 29 March 2000, returning on 31 March 2000 (G3 p24). 

11.     On 19 June 2001, Mr Jan was convicted of conspiring to import a prohibited import (cocaine) and supply prohibited drug (heroin).   On 19 June 2002, he was sentenced to five years imprisonment with a non-parole period of three years for the offence of conspiracy to import a prohibited import and six years imprisonment with a non-parole period of 54 months for the offence of supply a prohibited drug (G p90).  Mr Jan’s earliest date for release is 26 May 2007 (G p13).

12.     On 6 June 2005, an officer of the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”) informed Mr Jan that the Minister or his delegate was considering cancelling his return residence visa because of his substantial criminal record and past and present criminal conduct, and taking into consideration his Australian Federal Police criminal record, Sentencing Administration Report of 9 May 2005, the sentencing comments of Judge Sorby of the New South Wales District Court on 19 June 2002, and his previous warning about deportation given to him by letter of 29 August 1994, and inviting him to comment (G6 p42).

13.     Mr Jan responded by letter (undated), received by the department on 16 June 2005 (G8 p51).   He submitted that in January 1992, his wife’s uncle approached him to go with him. He said “I did not knew [sic] or any knowledge of drug. He was dealing with cover, and we got arrested … I was upset and ashamed of myself”.  He said that while in prison he was allowed to join the work release program, working for CHEP Australia, and was given weekend leave. He continued to work for CHEP after his release until the end of 1999. At this time, he started an export business but it closed after six months.  In August 2000, he purchased the franchise for The Cheesecake Shop Smithfield, which he operated with his wife (his wife now operates the business with four employees).  He stated that the business and new home he had purchased put a lot of financial stress on him and “in November 2000 some friends approached me to help them. Because of financial stress, I jumped with out thinking. The result of my greed and stupidity I got arrested along with other people”.   He acknowledged that he knew what he did was wrong and he had pleaded guilty and he was ashamed and embarrassed.  He submitted that during his time in prison he had worked and had received good reports and that “everyone in prison respects me”. He said he had completed a diploma in real estate which he intended to use after his release, as well as other courses to rehabilitate himself.  He said that because of the pressure on his wife in running the business and caring for three children on her own, she had sent the children to Pakistan in 2003 to live with his parents, but in January 2005 they returned to Australia because they were getting sick and complained about the food, dust and language.  The children ask him when he is coming home and tell him they miss him.  He submitted that his children need him and should not be punished by keeping him away from them, and that they could not live in Pakistan because their life is in Australia and they are used to the culture, lifestyle, food, education, and health services.  He requested he be given one more chance, to operate his business and support his children (G pp51-58).

14.     Mr Jan also lodged with the department, character references from Paul Ridgley, Patrycja Pietak, Sarita Narayan, Koichi Obata, Robert Undorf (G pp59, 60, 61, 64, 71), which all attest to Mr Jan being loyal, honest, respectable and a gentleman.  He also submitted copies of personal correspondence and invitations extended to him by Koichi Obata to attend functions at the Embassy of Japan in Islamabad.  No submission was made by Mrs Jan.

15. On 4 October 2005, a delegate of the respondent, having considered the submissions made by Mr Jan, decided to cancel his subclass 155 return (residence) visa because of his substantial criminal record and the continuing risk that he would re-offend, and having exercised his discretion under s 501(2) of the Act to cancel his visa (G1). Mr Jan was notified of this decision by letter dated 2 December 2005 (G12 p93). On 5 December 2005, he lodged an application for a review of that decision. On 19 January 2006, Mr Jan conceded he fails the character test by virtue of his criminal convictions and substantial criminal record.

16. At the hearing, the applicant was represented by Christopher Levingston, solicitor, Christopher Levingston & Associates, and the respondent was represented by Kimberley Rose, solicitor, Phillips Fox lawyers. The evidence before the tribunal comprised the documents produced pursuant to s 501G of the Act (“the G Documents”), taken into evidence as Exhibit A1, together with the evidence submitted by the parties at the hearing. Mr Jan gave oral evidence in person.

Relevant Law and Policy

17. Under s 501(2) of the Act, the Minister may cancel a visa granted to a person if the Minister reasonably suspects that the person does not pass the character test (s 501(2)(a)) and the person does not satisfy the Minister that he does in fact pass the character test (s 501(2)(b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant grounds in the current matter are s 501(6)(a) and s 501(6)(c)(i). Section 501(6)(a) provides:

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));

…

”Substantial criminal record” is defined in s 501(7) to include a person who “has been sentenced to a term of imprisonment of 12 months or more”.

18. Section 501(6)(c)(i) states:

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

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

…

the person is not of good character; …

19. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.

20. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act.  The Direction provides guidance on the application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.

Evidence relating to the offences

21.     As the applicant conceded the character issue, the evidence related to the discretion issue.

22.     At the hearing he was cross-examined on his statement dated 22 December 2005 (Exhibit A3).  Mr Jan spent six months in Australia in 1986 and arrived again in May 1987, departing in October 1989, having been on visitor visas (which he may have overstayed).  In 1990, he arrived as a permanent resident on a spouse visa and began working as a machine operator at the Streets ice cream factory.  At that time he held a BA degree and a master’s degree in sociology from Pakistan, and subsequently in Australia earned a diploma in human resources.

23.     His first child, Ismail, was born on 19 June 1991.  On the same day, the applicant was approached by his wife’s uncle, who was a drug dealer.  Mr Jan said that he knew nothing about drugs (G p51), although he was aged 41 at the time.  His subsequent arrest led to his conviction on 8 January 1992 for supplying heroin and conspiring to supply heroin.  He was sentenced to six years’ imprisonment with a non-parole period of four years for each offence.  He had little to say about those convictions, which related to the supply of 500 grams of heroin with a street value of $600,000.

24.     He noted that “In 1994, the Department of Immigration warned me of my misconduct, but allowed me to remain in Australia for which I was very thankful” (Exhibit A3, para 8).  At the hearing he conceded that he understood at the time of that formal and emphatic warning that if he offended again he was liable to be deported and thereby be separated from his children.  He admitted that despite that understanding, he had chosen to re-offend, but attributed his actions to “greed or stupidity”.  Stupidity can certainly be ruled out.  He holds bachelor’s and master’s degrees, a post-graduate diploma and is a successful businessman.  Nor was he a drug addict who offended in order to support his habit.  There is no evidence, in fact, that he has ever used cocaine or heroin at all.

25.     At the hearing he explained, in relation to the second set of convictions, that he had been approached by a friend, and later co-offender, Ms Tulay Isik.  She asked him for a loan to help with her children’s expenses, but he was unable to assist in that respect.  She then said that she could organise the importation of drugs, and he agreed to take part but only on the condition that he would take no profit from the transaction, in which he was involving himself solely in order to help her children.  She had assured him, however, that there would be “big money” available later, presumably from future transactions, in which he would be able to share.  He admitted that the supply of heroin was for his own purposes and apparently meant that it was the cocaine transaction that he was undertaking without reward.

26.     That was the first time he had mentioned his co-offender’s need for money for her children.  In his sworn statement he explained his motivation for the offence differently: “In November 2000 I was approached by friends.  The payment of my mortgage and financially supporting my family put me in a lot of stress.  As a result I agreed to help them import drugs which resulted in my arrest” (Exhibit A3, para 19).  At the hearing he failed to explain that inconsistency.  The account offered at the hearing appears to be a recent invention.

27.     Further, in his sentencing remarks, Judge Sorby concluded that Mr Jan’s role in the conspiracy to import cocaine was one of “co-conspirator for financial gain” (G p82).  He also noted that the applicant was the co-ordinator of the importation arrangements and liaised with the other three co-conspirators.  The conspiracy was carefully planned and co-ordinated using coded telephone calls and preparations extended over a number of months.  The applicant had earlier said that the cocaine was sold for $12,000, the proceeds being shared equally between himself, Isik and a third conspirator, with no suggestion that he had refused to take a profit from the sale.  There was also evidence in the telephone intercepts that the next importation was being discussed, if not planned (G pp80, 82-83).

28.     The applicant said nothing about the nature of his involvement in the heroin transaction, but Judge Sorby noted that his role was of “crucial importance” and that, like the cocaine offence, it was committed for financial gain.  The applicant instigated telephone calls to Ms Isik in relation to the arrangements for the sale of heroin, including the date of 20 August 2000, the time and the meeting place (G p83).  His Honour observed that the applicant’s claim of financial stress did not explain the cocaine importation as he did not buy his business until several months afterwards, although the purchase was fairly contemporaneous with the heroin transaction (G pp83-85).  In the intercepted telephone conversations, the applicant discussed details about the sale and supply of the drug, which had a street value of $400,000.  The conversations were coded but dealt with matters of detail such as the amounts of heroin for purchase and the pricing of the drug (G p80).

29.     In cross-examination Mr Jan said that he had pleaded guilty straight away, against legal advice, because he realised that he had done wrong and merited punishment.  When it was pointed out to him that he had initially denied both offences and had pleaded guilty only after seven months, he replied that he wanted to see what evidence the prosecution had, and “what they were offering me”, a materially different but more credible explanation.  In response to the suggestion that he pleaded guilty only when he realised the strength of the prosecution’s case and that it was useless to deny it, he replied that if he had pleaded guilty he would have won as the charges against his co-offenders had been dismissed.  One of his co-accused in the heroin case, however, Viorel Neda was sentenced to four and a half years’ imprisonment (G p88).  The applicant received the same sentence on that count, in addition to a sentence of five years’ imprisonment for the conspiracy to import cocaine.

30.     Judge Sorby also noted that “The prisoner did not give evidence as to contrition, remorse or anything else.  The probation and parole report records no expression of remorse by the prisoner” (G p85).  In his statutory declaration he averred that while in jail for those offences, “All the time I felt ashamed and remorse as I put my wife and children in a lot of stress” (Exhibit A3, para 21).  That belated expression of contrition for his wrongdoing may well have been prompted at least in part by Judge Sorby’s comments, but even then his remorse relates to the effect on his family, not on the victims or potential victims of his drug dealing activities.

Evidence relating to children and family

31.     In his statutory declaration the applicant related how his then wife had become very stressed from looking after the three children and working in the cheesecake business seven days a week.  In 2003 she therefore decided to take the children to Pakistan where their paternal grandparents could take care of them.  Ismail was enrolled in a boarding school and the other two children in day schools.  Mrs Jan returned to Australia a month later and the children continued to live in Pakistan for another two years.  In view of the children’s continual complaints about the food, dust, language and schooling, they brought them back to Australia where they are now enrolled in school.

32.     The applicant said that he is currently studying real estate so that when he completes his imprisonment he will be able to find employment easily.  While in jail he has also undertaken a number of courses and some counselling directed to rehabilitation.

33.     He said in his statement that his wife was finding it extremely hard to cope with looking after both the children and the business, and his children miss their father.  “Notwithstanding my actions, if I am deported then it will break our family”.  Unfortunately, however, the family is already broken.  His wife instituted proceedings in the Family Court and the marriage has now been dissolved.  A property settlement in relation to the house, which is worth $700,000, and the business, valued at $350,000, is pending.  As his statement was sworn on 22 December 2005, and the hearing was on 30 January 2006, it seems likely that the divorce had already been granted when the statement was sworn.

34.     He conceded that his then wife had been the children's main caregiver except when they were living in Pakistan, when their grandparents had taken responsibility for them.  While he was in jail she was the sole caregiver.  Nevertheless, he said that Ismail had expressed a wish to live with him, and claimed that the other children also preferred to live with him rather than with their mother.  He said that he sees them every weekend and that they enjoy the visits.

Application of the Law and Findings of Fact

35. As was stated above, Mr Jan conceded that he failed the character test in s 501(6)(a) of the Act because of his criminal convictions and “substantial criminal record”, including four very serious drug-related offences for which he has been sentenced to a total of 11 years imprisonment.

36. The issue for the tribunal therefore is whether to exercise its discretion under s 501(2) to decide, nevertheless, not to cancel Mr Jan’s visa. In so doing, the tribunal must have regard to Direction No 21 as a guide to the exercise of its discretion.

37.     Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:

Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.

Paragraph 2.3 sets out the primary considerations:

In making a decision whether to refuse or cancel a visa, there are three primary considerations:

(a)       the protection of the Australian community, and members of the community;

(b)       the expectations of the Australian community; and

(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.

Paragraph 2.4 explains:

The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community

38.     Examples of what the Government views as serious offences are set out in paragraph 2.6 of Direction No 21.  These include, in subparagraph (a) the production, importation, distribution, trafficking (including possession for this purpose), commercial dealing, or selling of illicit drugs and in (o) ancillary offences in respect of any of the other offences including conspiracy to commit any of the offences (in this case, conspiracy to import a prohibited drug).

39.     Paragraphs 2.10 and 2.11 refer the decision-maker to the likelihood that the conduct may be repeated (including any risk of recidivism), and to general deterrence – the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons.  Paragraph 2.10(a) also refers the decision-maker to whether a non-citizen has committed a further offence after having been warned previously about the risk of cancellation.  In this case, Mr Jan received a previous warning on 29 August 1994 (G11 p92).

Protection of the Australian Community

40.     The first factor to be considered under this heading is the seriousness and nature of the conduct involved.  In this case, Mr Jan has committed four very serious drug-related offences including supplying heroin and conspiracy to import cocaine. Paragraph 2.6 of Direction No 21 states:

2.6      It is the Government’s view that the following are examples of offences which      are considered by the Government to be very serious:

(a)the production, importation, distribution, trafficking (including possession for this purpose), commercial dealing, or selling of illicit drugs:

·persons who embark upon drug-related crime for financial gain have shown a callous disregard for the insidious effects of illicit drugs on the health and welfare of Australia’s young people;

·the Government views non-citizens who have sought to profit from the import or supply of drugs, whether or not motivated by their own need for illicit drugs, as extremely serious offenders.  It is important both as a deterrent to other criminals and to protect Australian society that it is clearly understood that crimes involving drug trafficking, which puts the lives of young Australians at risk, be viewed as completely unacceptable to the community; and

·offences involving illicit drugs of dependency or addition, such as heroin, are also of particular concern to the Government and the community; …

41.     The convictions against the applicant on 19 June 2002 related to conspiracy to import a prohibited drug (cocaine) and supply prohibited drug, namely heroin.  The amount of cocaine involved was 189 grams, the trafficable quantity being two grams; in relation to the heroin, the amount involved was 379 grams, the trafficable quantity being 250 grams.    In sentencing the applicant on 19 June 2002 (G10), Judge Sorby of the New South Wales District Court commented that the applicant and his co-offenders were under surveillance for a period of seven months, including telephone intercepts of the applicant and his co-offenders arranging for the importation of the cocaine into Sydney, concealed in a machine part.  The cocaine was sold for $12,000, the proceeds being shared between the applicant and his co-offenders.   With regard to the second offence, surveillance recorded the applicant as organising the sale and supply of the heroin.  The heroin was 379.3 grams, its purity ranging between 80.7 per cent and 83 per cent with an estimated street value of $400,000.   In discussing the severity of the offences, Judge Sorby said:

In the first offence, conspire to import, the prisoner’s role was one of co-conspirator for financial gain.  The evidence in the Crown brief shows clearly that the prisoner was the co-ordinator of the importation arrangements and liaised with the other three co-conspirators.  The conspiracy was planned carefully and co-ordinated using coded telephone calls.  It extended over a number of months.  … On this evidence it would be fair to say that the prisoner was the cog in the wheel with the other three conspirators communicating, for the most part, through the prisoner for the importation of the drug.

The gravamen of the offence of conspiracy is the agreement between the participants. The importation of cocaine in the machine part was one of the overt acts in the on-going course of conduct including telephone calls and overseas trips on the part of the co-conspirators.  There was also evidence in the telephone intercepts that the next importation was being discussed, if not planned.

The prisoner’s role in the second offence was also significant.  The telephone intercepts between 10 August 2000 and 21 August 2000 indicate that the prisoner instigated telephone calls to Isik in relation to arrangements for the sale of heroin, including the date 20 August 2000 both as to time and the meeting place.  The heroin sold for about $40,000 and the prisoner later paid Isik $1,000.  He also told Isik not to hand the money over to her supplier, but she panicked and did so.  In my view, on the evidence before me in the Crown brief, the prisoner’s role was of crucial importance in both offences and the total criminality involved was considerable.

…

The prisoner’s criminal past reveals a conviction and lengthy prison sentence in 1992 for supplying heroin, 500 grams, with a street value of $600,000.

…

The prisoner did not give evidence as to contrition, remorse or anything else. The probation and parole reports record no expression of remorse by the prisoner.

…

In relation to both offences the prisoner was arrested on 27 November 2000. In a taped record of interview on that day he denied any knowledge or an involvement with a conspiracy to import cocaine or to the supply of heroin.  He pleaded guilty to both offences on 19 June 2001. These are relatively early pleas and they entitle the prisoner to an element of leniency although in these offences the prisoner faced a strong Crown case.  The pleas, however, did save the community the time and expense of a trial …

42.     The Direction specifically highlights the serious view taken of non-citizens who engage in drug related crime for financial gain, thereby putting the lives of young Australians at risk.  The quantities of both the heroin and cocaine involved in the applicant’s crime (and noting the amount of heroin involved in his first offence in 1992) means that the most serious view must be taken of the offence.  As Sorby J noted, the applicant was the organiser, ”the cog in the wheel”, with the co-conspirators communicating through him.  As Mr Jan was aged 40 at the time of the offence, youth cannot be regarded as a mitigating factor.  He has never been a drug addict and committed all his offences for monetary gain.  There are no mitigating factors.  As an intelligent and educated man, he must have been well aware of the effects his actions would have on his potential victims.  His criminal record must be regarded as very serious, indeed quite reprehensible.

43.     Next, the tribunal is to consider the risk of recidivism.  The applicant was convicted of his first two drug-related offences in 1992 and in August 1994 was given a very strong warning by the department that any further conviction would lead to the question of his deportation being reconsidered.  He re-offended in 2000.  Judge Sorby noted at the time of sentencing the applicant on 19 June 2002, that he had not shown any contrition or remorse for his actions and that if he were paroled, it would be subject to conditions.

44.     The respondent in her statement of facts and contentions (Exhibit R1) submits that there is a considerable risk of recidivism taking into account that the applicant proceeded to commit more serious drug offences despite his first deportation warning and despite having gained a TAFE qualification and becoming the father of two more children;  that he was under police surveillance for a period of seven months, indicating he had ample opportunity to withdraw his involvement but did not do so; and that he is not willing to take full responsibility for his actions as indicated by untruthful and inaccurate statements regarding his involvement in these drug offences.

45.     There are no offences recorded against him while in prison, and during his incarceration he has undertaken several courses and is studying for a qualification in real estate.  He has good work reports and the delegate making the decision under review referred to a number of supportive letters he had received (G pp19-20).  Most were dated between 1985 and 1994 and did not relate to Mr Jan’s current character.  Three of the letters were in response to the notice of intention to cancel the visa, but I agree with the delegate that they show little insight into the applicant’s character or as to whether he has reformed.  The letters were not referred to at the hearing.  There is little other evidence of rehabilitation.  His expressions of remorse are restricted in scope and of recent date.  I am not persuaded that they are genuine rather than merely tactical.  In my view there is a significant risk of recidivism in this case.

46.     The third consideration relevant to community protection is general deterrence, which aims to deter others from committing the same or similar offences.  “Whilst not a conclusive factor in itself, general deterrence in an important factor in determining whether to refuse or cancel a visa” (Direction No 21 paragraph 2.11).  Deterrence is a factor shown by contemporary research to play a more important role in crime causation than had previously been thought (see Re Sam andMinister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003 paragraph 31). Published works attacking deterrence as a relevant factor tend to rely on theoretical arguments or assertions and do not mention any empirical evidence (e.g. J McGuire, Deterrence in Sentencing:  Handle with Care (2005) 79 ALJ 448).

47.     In his sentencing remarks, Sorby J commented:

The purpose of punishment in Australia is the protection of the community, deterrence, both general and specific, rehabilitation and retribution.  These are said to be the reasons by which the object of protecting the community is achieved.  In drug importation cases and because of the community attitude to drugs such as heroin and cocaine, it has been held that general deterrence is of major importance.  In drug importation cases the heavy sentence is to deter persons from overseas and locally who are minded to bring drugs into Australia.

His Honour’s comments are especially pertinent where, as here, the offender has been explicitly warned that his visa is likely to be cancelled if he reoffends.

Expectations of the Australian Community

48.     The second primary consideration is set out in paragraph 2.12 of Direction No 21 and states that the community expects non-citizens to obey Australian laws while in Australia.  Failure to do so may make it appropriate to cancel such a person’s visa.  “Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concern or offences is such that the Australian community would expect that the person … should be removed from Australia”.

49.     The applicant has four major drug-related convictions against his name which the Australian community would consider as very serious.  They are aggravated by the key organising and co-ordinating role he played in the 2002 offences and by the fact that his sole motive was profit.  While the community would strongly prefer to avoid any harm to his children’s interests, they would also be aware the young victims of heroin traffickers, whose lives are often destroyed by the drug, are also somebody’s children.  Every Australian parent lives in fear of the heroin peddler.  In my view the public would expect the applicant’s visa to be cancelled.

The Best Interests of the Child

50.     The third primary consideration is the best interests of the child.  The tribunal is guided on this question by the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In Wan at paragraph 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa and, second, “to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweigh the consideration of the best interests of the children understood as a primary consideration”. I also note paragraph 2.16 of Direction No 21, which sets out considerations which the decision-maker must take into consideration when considering the best interests of a child including the duration of the relationship between the non-citizen and the child, the length of any separation and reasons for that separation, the age of the child and the circumstances of the probable receiving country should the non-citizen not be permitted to remain in Australia (paragraph 2.16(b)).

51.     The applicant, Naeem Jan, has three children whose interests must be considered: Ismail Jan, born in 1991 and now aged 15, who is in year 10 at high school; Sarah Jan, born in 1996 and now aged 9, who is in year 5 at primary school; and Yusuf Jan, born 1999, aged 7, who is now in year 2 at infants school.  When the applicant’s earliest release date in May 2007 arrives, Ismail will be almost 17, Sarah will be 11 and Yusuf 8.

52.     The children were all born in Australia, are Australian and reside with Mrs Jan.  Ismail was aged two when the applicant first went to prison, and in total has been in prison for over eight years of Ismail’s life.  Sarah was aged four when the applicant was imprisoned in November 2000.  With regard to Yusuf, the tribunal notes that he was aged one when the applicant was imprisoned and has not lived with his father since that time.   Mr Jan said in his submissions to the department, that he is very close to his children and that they miss him and ask when he will be coming home and that “children need both parents to look after their need, give them Love and support” (G p54-55).  In his statement (Exhibit A3) he said that his wife is finding it extremely difficult to look after their three children and maintain the applicant’s and his wife’s cheesecake business at Smithfield, New South Wales, which they bought in August 2000.  He submitted that the children miss him very much and continually ask when he will be coming home.  He submitted:

If I am deported then it will break our family.  It would be very hard for me to be away from my children. I believe that children need both parents to look after their needs and to give them love and support. It is in the best interests of my children that I remain in Australia and that the children have the benefit, aid and comfort of the support of their parents during their formative years. … I believe that I have been punished for my wrong choices and decisions. I did not plan to make my family suffer the way they have.  I feel very sad and ashamed that I have let my family and community down.

But divorce proceedings, as was noted above, must have been at least pending at the time he signed that statement.  In all probability dissolution had already been ordered.  This was another attempt by the applicant to mislead the tribunal.

53.     Following the divorce, the future of the cheesecake business is in doubt as the property arrangements have not yet been settled.  Mr Levingston pointed out that the best interests of the child is the only one of the main factors in Direction 21 that relates to the needs of individuals, as questions of community protection and expectations are more generalised and abstract.  The applicant’s three children are innocent parties and are squarely within their formative years when they have a special need for stability.  Ismail would prefer to live with the applicant rather than with his mother.  At all events the children could not be the subject of a shared access order if the applicant were living in Pakistan.  There was no record of any violence by the applicant towards his family.  For them to be separated from their father would be an unintended consequence, but a bad result for the children.

54.     I note that in 2003, the applicant and his wife sent their children to Pakistan to live when Mrs Jan was unable to manage the children and the business.  The respondent in her statement of facts and contentions (Exhibit R1) submitted that this indicated that the applicant was prepared to live apart from his children “even if it limited the degree of contact they shared or if it had a detrimental effect on himself or them”.  If they had adjusted to life in Pakistan they might still be there.  She further submitted:  “The applicant and his wife have shown a preparedness to have their children raised in Pakistan, in circumstances where it would be reasonable for the Tribunal to infer that they would again do so if the applicant’s visa cancellation were to be affirmed by the Tribunal.  There is no basis for a finding that the children would be living without one of their parents as a result of the applicant’s removal from Australia”.

55.     There is no evidence of Mrs Jan’s plans or preferences in the wake of the divorce, but it seems likely that she would prefer to remain living in Australia with the three children.  That would mean that the children, or at least the two younger ones, would be separated from their father during some of their formative years.  That would not be in their best interests.  As against that, modern means of communication such as the internet and webcams have made it much easier to maintain strong communications and contacts despite physical separation.  In due course they would be able to visit their father in Pakistan or perhaps meet him in some third country.  Further, the applicant, as a serial hard drug dealer devoid of any empathy for his victims or potential victims, could hardly be regarded as a desirable moral guide for young people, especially boys.  Mrs Jan’s parents live in Australia, and although there is no evidence of their ages, it is likely that they would seek to play some part in the children’s upbringing.

56.     I conclude that the best interests of the children weigh against visa cancellation in this case but, for the reasons given, not as heavily as might otherwise be the case.

Other Considerations

57.     Having applied the primary considerations, the tribunal is then required to take into account a number of other considerations to which a decision-maker is directed by Direction No 21, which, though generally given less individual weight than that given to the primary considerations, may have a bearing on the appropriate decision.  These other considerations include:  the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; any evidence of rehabilitation and any recent good conduct; and whether the application is for a temporary visa or permanent visa.

58.     The applicant’s ex-wife, Rena Jan, resides in Sydney with their three children.  In light of the divorce it is unlikely that she would personally suffer any hardship if the applicant were returned to Pakistan.  I also note that she has been caring for the three children and operating the cheesecake shop since November 2000 when the applicant was imprisoned for the second time since their marriage.  He has lived apart from his eldest child for more than eight years and apart from his two youngest children for more than four years.  Mr Jan’s parents reside in Pakistan.  The future of the apparently successful cheesecake business will have to be determined by the Family Court.

59.     His record while in prison is good and he has been following a course in real estate to enhance his employment prospects on release, besides undertaking other courses offered by the correctional authorities.  That is some evidence of rehabilitation, but it is of limited use as a predictor of future behaviour as he performed in the same way during his first prison sentence but went on to re-offend nevertheless.  His attempts to mislead the tribunal also suggest that any rehabilitation has been superficial.

60.     This is a particularly unfortunate case.  An intelligent and educated man, of distinguished appearance and proven business ability, succumbs to the lure of “easy” money and serves a substantial prison sentence for heroin dealing.  The migration authorities warn him formally and emphatically that if he re-offends his visa is likely to be cancelled.  On his release he obtains good employment, performs well and is promoted to a higher position.  Nevertheless, he allows greed to lure him back into hard drug dealing, where he uses his considerable talents in organising and executing cocaine and heroin transactions.  He does so knowing full well that he risks visa cancellation and separation from his children.  As a result of his actions, his own children join the ranks of his victims.  In the prime of life, he has destroyed his marriage and his future.  While the best interests of his children tell in favour of exercising the discretion in favour of not cancelling the visa, in my view the considerations of community protection and expectations constitute an overwhelming case to the contrary.

61.     The decision under review should be affirmed.

I certify that the 61 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President

Signed:         .....................................................................................
  Associate

Date/s of Hearing  30 and 31 January 2006
Date of Decision  10 February 2006
Solicitor for the Applicant          Mr C Levingston, Christopher Levingston &              Associates
Solicitor for the Respondent     Ms K Rose, Phillips Fox