JASON HOOPER and MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2012] AATA 340
•6 June 2012
[2012] AATA 340
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/1120
Re
JASON HOOPER
APPLICANT
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
RESPONDENT
DECISION
Tribunal Honourable Dr B H McPherson CBE, Deputy President and Mr P Wulf, Member
Date 6 June 2012 Place Brisbane Decision Summary
The Tribunal affirms the decision under review
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Honourable Dr B H McPherson CBE, Deputy President
CATCHWORDS
IMMIGRATION – Visa cancellation – Character test – Serious criminal record – Protection of the Australian community – Seriousness and nature of the conduct – Risk that the conduct may be repeated – Whether person a minor when person began living in Australia – Length of time ordinarily resident in Australia before engaging in criminal activity – International obligations –Family ties – Links to country to which person would be removed – Hardship to Applicant or immediate family – Decision under review affirmed.
LEGISLATION
Migration Act 1958 (Cth) ss 499, 501, 501G
CASES
Heyward v Minister for Immigration and Citizenship [2009] AATA 536
Heyward v Minister for Immigration and Citizenship [2009] FCA 1313
Heyward v Minister for Immigration and Citizenship [2009] FCAFC 177
Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56
Minister of Immigration, Local Government and Ethnic Affairs v Batey [1993] FCA 75; (1993) 112 ALR 198; (1993) 40 FCR 493
Rosson and Minister for Immigration and Citizenship [2010] AATA 880Rosson v Minister for Immigration and Citizenship [2011] FCA 194
SECONDARY MATERIALS
Direction [No. 41] – Visa refusal and cancellation under s 501
REASONS FOR DECISION
Honourable Dr B H McPherson CBE, Deputy President and Mr P Wulf, Member
6 June 2012
Mr Jason Hooper has applied to the Administrative Appeals Tribunal for review of the decision made by a delegate of the Minister for Immigration and Citizenship (“the Minister”) to cancel his Class TY, Subclass 444 Special Category (Temporary) Australian visa (“visa”).[1] The stated ground for that decision was that Mr Hooper did not pass the “character test” and posed an “unacceptable risk of harm” to the Australian community.
[1] Exhibit B: G2 – Notice of Visa Cancellation, 16 March 2012.
Mr Hooper is 21 years of age. He was born in New Zealand and is a citizen of that country. On 10 May 2009, at age 18 years and six months, he migrated to Australia where he has lived since his arrival. During his time in Australia, Mr Hooper has been convicted of a number of offences and served three concurrent custodial sentences. His criminal activity commenced only 3 months and eleven days after he arrived in Australia. His major offences of 27 January 2010 resulted in McGinness DCJ of the Southport District Court sending the Applicant to gaol for three concurrent sentences of four years, two years and six months. Due to these offences, a delegate for the Minister, on 16 March 2012, cancelled the Applicant’s visa.
THE ISSUE AND THE TRIBUNAL'S DETERMINATION
The issue for the Tribunal's determination is whether the Tribunal should use its discretion and not cancel the Applicant’s visa pursuant to s 501(2) of the Migration Act 1958 (Cth) (“the Act”). For the reasons which follow, the Tribunal has determined that the Applicant is an unacceptable risk to the Australian community and therefore the decision is affirmed and his visa is cancelled.
THE RELEVANT LEGISLATION
Under s 501(2) of the Act, the Minister, or the Tribunal acting as substitute decision-maker, may cancel a visa if they “reasonably suspect that the person [who holds the visa] does not pass the character test” and “the person does not satisfy the [decision-maker] that the person passes the character test”. A person does not pass the character test if he or she has a “substantial criminal record”.[2] The Act defines a “substantial criminal record” to include having been sentenced to a term of imprisonment of 12 months, or having been sentenced to two or more terms of imprisonment where the total of those terms is two years or more.[3] It is conceded that Mr Hooper satisfies both elements of the “substantial criminal record” test and therefore does not pass the character test. The precondition to the exercise of the power to cancel the visa is therefore satisfied.
[2] Migration Act 1958 (Cth), s 501(6)(a).
[3] Migration Act 1958 (Cth), s 501(7)(c) and (d).
THE EVIDENCE
The evidence before the Tribunal comprised:
(a)Exhibit A: Submission: Client in Confidence (Client File CLF2011/169273) from the Department of Immigration and Citizenship (“DIAC”);
(b)Exhibit B: the "G Documents" (G1-G6 plus A-H: pp. 1-106) lodged by the Minister in accordance with s 501G of the Migration Act 1958 (Cth);
(c)Exhibit C: "Supplementary G Documents" (SG1: pp. 1-22) lodged by the Minister in accordance with s 501G of the Migration Act 1958 (Cth);
(d)Exhibit D: "Second Supplementary G Documents" (2SG1-2SG7: pp. 23-72) lodged by the Minister in accordance with s 501G of the Migration Act 1958 (Cth);
(e)Exhibit E: Applicant’s Statement of Facts and Contentions dated 14 May 2012;
(f)Exhibit F: Statements by Mr Jason Graham Hooper dated 22 March 2012; Mrs Tracy Hooper dated 27 March 2012; Miss Jill Larson dated 21 March 2012; C. Caminiti dated 6 January 2012; and Mr Ian Davies dated 27 March 2012;
(g)Exhibit G: Respondent's Statement of Facts and Contentions dated 30 April 2012;
(h)Exhibit 1: Statutory Declaration of Mrs Tracy Lyn Hooper dated 22 May 2012; and
(i)the oral evidence of the Applicant, Mrs Tracy Hooper, Mr Ian Davies, Miss Jill Larson and Dr Steven Dragutinovich, Clinical and Consulting Psychologist.
The full extent of the Applicant’s criminal history was set out in the G Documents, Supplementary G Documents and Second Supplementary G Documents prepared by the Respondent. There was no argument as to the serious nature of the offences. Specifically, the Applicant acknowledged that the offences of 27 January 2010 were totally disgraceful although he and his witnesses appeared to suggest in evidence that they were merely an “incident” or a “bad decision”. The Applicant also has offences in New Zealand that do not require attention in this matter.
Given the extent of the Applicant’s criminal history and the fact he has been sentenced to imprisonment for a term exceeding 12 months or more (four years, two years and six months for the three separate offences) following his actions of 27 January 2010, the Tribunal is satisfied that the Applicant fails the character test.
As we have found that the Applicant does not meet the character test mandated in s 501(6) of the Act, we must consider whether the discretion in s 501(2) of the Act, not to cancel the Applicant’s visa, should be exercised in his favour. In exercising the discretion whether or not to cancel the Applicant’s visa we are required, pursuant to s 499 of the Act, to take into account any written directions by the Minister as to the performance or exercise of the discretion.
At the time the Minister’s delegate made the decision in this matter, and currently, Direction [no. 41] – Visa refusal and cancellation under s 501 (“Direction [41]”) was in force.
Direction [41] states as its objective, at paragraph 5.1:
(1) The objective of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens.
(2) In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.
(3) The Government is especially mindful to protect the safety of the community’s more vulnerable members, including minors, the elderly and the disabled.
Further guidance is given at paragraph 5.2(2) of Direction [41]:
In reaching a decision on whether to refuse or cancel a visa, a decision-maker needs to consider:
(a)the nature of any harm that the person may cause to the Australian community; and
(b)the risk of that harm occurring.
Direction [41] provides that in exercising the discretion, whether or not to cancel a visa, the decision-maker must take into account four primary considerations and seven other considerations. The primary considerations in exercising the discretion whether to cancel a visa or not are set out at paragraph 10(1) of Direction [41]:
(a) the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
(b) whether the person was a minor when they began living in Australia;
(c) the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and
(d) relevant international obligations …
PROTECTION OF THE AUSTRALIAN COMMUNITY
Paragraph 10.1 of Direction [41] reads:
Protection of the Australian Community
(1) Due consideration is to be given to the Government’s objectives set out in Part 1, paragraph 5 of this Direction.
(2) The factors relevant to assessing the level of risk of harm to the community of the person’s entry or continued entry include:
(a) the seriousness and nature of the relevant conduct; and
(b) The risk that the conduct may be repeated.
The Seriousness and Nature of the Conduct
Paragraph 10.1.1 of Direction [41] states:
(1) Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community. Those crimes involving violence, particularly against vulnerable persons (such as minors, the elderly and disabled), are especially abhorrent to the whole community.
(2) The following are examples of offences and conduct that are considered serious:
…
(d) grievous bodily harm, reckless injury, assault and aggravated assault (including abduction);
…
While the Tribunal notes the Applicant’s submissions that the offences he committed are not specifically included in the list provided in paragraph 10.1.1(2), Direction [41] makes it clear that the list included in paragraph 10.1.1(2) is not exhaustive.
The Applicant has been convicted of malicious acts with intent to maim, disfigure or disable, dangerous driving while adversely affected by alcohol and failing to stop at the scene of an accident for which he was sentenced to imprisonment for four years, two years and six months respectively. This Tribunal considered that, particularly, his most significant offence of malicious act with intent, this being deliberately driving his motor vehicle into two people with their backs to him, could be considered as in the category of the worst offences in that the people, being total strangers, were extremely vulnerable as they could never have foreseen the action coming. This very much fulfils the requirements for an offence to be considered as a serious offence. It is also important to note that the Prosecutor suggested that the offence could have carried imprisonment of between ten and twelve years.[4]
[4] Exhibit D: 2SG1; 23-41 - Transcript of Proceedings, The Queen v Jason Graham Hooper, 12 August 2011, p. 32, line 5.
Specifically there are no mitigating circumstances with respect to the offences. The Applicant claimed that its commission was totally the result of the influence of alcohol; but in the Tribunal’s opinion, that overstates it. The Applicant gave evidence that he knew he would drive even though he was intoxicated. The Tribunal cannot see how this could in any way be a mitigating factor.
Paragraph 10.1.1(3) of Direction [41] states, inter alia:
The sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community. Due regard must be given to the extent of the person’s criminal record, including:
(i) the number and nature of offences;
(ii) the period between offences; and
(iii) the time elapsed since the most recent offence.
The Applicant has committed offences in both New Zealand and Australia. With respect to his time in Australia, the Applicant has committed four offences and the time between the first and second offence was a period of only five months and within eight months of his first entering Australia. While it is noted that he has not reoffended since January 2010, he has been incarcerated since August 2011 and so could not commit offences except when in gaol. The Tribunal finds that this factor does not weigh in the Applicant’s favour.
The Risk that the Conduct May be Repeated
The Applicant in these proceedings stressed that he had changed and was of reformed character. The Applicant’s evidence was that he moved to Australia to get away from associates in New Zealand that were “the wrong crowd”. He indicated that he was drinking heavily in New Zealand and this resulted in his committing one offence when over there. He suggested that he was easily persuaded to undertake sometimes illegal acts. Even, after arriving in Australia, Mr Hooper continued to drink heavily and to associate with the same individuals, who had also moved to Australia at about the same time. The Applicant blamed binge drinking and his associating with persons of unfavourable personalities as the reasons for his offending behaviour. He indicated that he used to travel to the Gold Coast on a Friday night and return Sunday night or Monday morning after consuming alcohol all weekend. It was only after his actions on 27 January 2010 that he reduced his alcohol consumption.
Whilst in prison, the Applicant did not undertake any courses directed towards dealing with substances including alcohol (nor any other courses) although, it is noted that none were offered to him. This, therefore, is of neutral value in respect of the primary considerations.
Dr Steven Dragutinovich, Clinical and Consulting Psychologist, prepared a report for the Applicant.[5] Dr Dragutinovich assessed the Applicant over a period of 2.5 hours at Villawood Detention Centre. During the assessment and for the writing of his report, Dr Dragutinovich used clinical psychological assessment techniques and Eysenck personality scales[6] to determine the Applicant’s characteristics and his potential to reoffend.
[5] Exhibit D: 2SG4 – 46-58.
[6] See Eysenck Personality Questionnaire – Revised [Adult].
Dr Dragutinovich specifically noted that the Applicant had a score of almost two standard deviations above the mean for lying, suggesting he well knew the difference between right and wrong. He also suggested that the score the Applicant received for psychoticism might not be an accurate result as it was not consistent with the Applicant’s background and presentation. Dr Dragutinovich did qualify his statements by indicating that he was aware the Applicant was trying to present himself in the best possible light.
In his report and during evidence, Dr Dragutinovich indicated that the risk of reoffending was low as long as the Applicant refrained totally from binge drinking. Mr Stolar, for the Applicant, acknowledged that no psychologist could ever reach a 100% assurance that an offender would not reoffend.
In Lam and Minister for Immigration and Multicultural Affairs,[7] the then President of the Tribunal indicated that “[o]nce a person has shown a disregard for the law, it can never be said that there is no risk of re‑offending”. The Full Court of the Federal Court held in Minister for Immigration, Local Government and Ethnic Affairs v Batey[8] also suggested that there was “no inconsistency in finding that a risk [of recidivism] is real, in the sense that it is not far-fetched or fanciful, and that the degree of probability of its occurrence is quantitatively low”.
[7] [1999] AATA 56 at [51].
[8] [1993] FCA 75; (1993) 112 ALR 198; (1993) 40 FCR 493.
The Tribunal highlighted, for example, that the Applicant could have an event that resulted in his consuming significant amounts of alcohol. The Tribunal considers that through this consumption he could very easily commit a further offence[9] that could result in serious injury or even death to a member of the Australian community.
[9] E.g. dangerous driving; driving over the prescribed limit etc.
Given the Applicant’s history, we are satisfied that there is a real risk of the Applicant committing further offences if he is allowed to remain in Australia.
WHETHER THE APPLICANT WAS A MINOR WHEN HE BEGAN LIVING IN AUSTRALIA
The Applicant was aged 18 years and six months when he arrived in Australia. In Rosson and Minister for Immigration and Citizenship,[10] the Court found that this factor did not weigh in favour of the Applicant. This Tribunal respectfully adopts that finding.
[10] [2011] FCA 194 – an appeal from Rosson v Minister for Immigration and Citizenship [2010] AATA 880.
THE LENGTH OF TIME THAT THE APPLICANT HAS BEEN ORDINARILY RESIDENT IN AUSTRALIA
Direction [41] provides, at paragraph 10.3(1):
…more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character.
In Heyward v Minister for Immigration and Citizenship,[11] the Tribunal stated that “[i]t is not the total period of ordinary residence that is relevant under Direction No 41, however, but the length of time before engaging in criminal activity or activity that bears negatively on the applicant’s character”. In this case, Mr Hooper has lived in Australia for just over three years; importantly, however, his first offence occurred just over three months after arriving in Australia and his initial imprisonment resulted from actions after he had been in Australia for approximately only eight months.
[11] [2009] AATA 536 at [307]; see also generally Heyward v Minister for Immigration and Citizenship [2009] FCA 1313 and [2009] FCAFC 177.
This factor therefore does not weigh in Mr Hooper’s favour.
INTERNATIONAL OBLIGATIONS
The parties agree that there is no relevant international obligation in this matter.
OTHER CONSIDERATIONS
Direction [41] lists at paragraph 11(3) seven other non-primary considerations that might be taken into account in considering whether to cancel a visa, if relevant to the circumstances of the Applicant.
Family ties – the nature and extent of any relationship: Mr Hooper has been in a de-facto relationship with Ms Larson, an American citizen, from in/or about August 2009, although there appears to be some differing evidence as to the precise date. The couple plan to marry. Ms Larson has applied for a spousal partnership visa; however she has no legal right to reside in Australia apart from her bridging visa. She testified that if Mr Hooper was deported to his home country, she would try to follow him and immigrate to New Zealand. She indicated that while she had already applied for a partnership visa in Australia, she would also apply for a similar visa in New Zealand. The Tribunal accepts that the relationship between Mr Hooper and Ms Larson is a strong and loving one, and that both would be extremely distressed if they were forced to live apart; however it is important to note that Ms Larson is not an Australian citizen, permanent resident or eligible New Zealand citizen, and that this, therefore, cannot assist the Applicant.
The Applicant’s mother and her husband provided statements, as well as appearing in person before the Tribunal. We place little weight on their evidence as they are related to the Applicant. Importantly, they appeared to suggest that they were unaware of the Applicant’s full actions but now provide full support to him. They also suggested that things had changed as a result of the Applicant returning to the family home and living with Ms Larson; however the family unit was in place prior to the Applicant’s offences and, therefore, the Tribunal considers that this does nothing to assist the Applicant.
Links to the country to which the Applicant would be moved: The Applicant arrived in Australia aged 18 years and six months. He lived with his natural father in New Zealand for about 10 years before moving to Australia. The Applicant also has a step brother, five uncles and aunts, two cousins and a grandparent currently living in New Zealand. His father is currently incarcerated, although it is noted that he will be eligible for parole in September 2012, some three years and three months after imprisonment in July 2009.[12] The Applicant thus has extensive links to New Zealand.
[12] Exhibit 1.
Hardship to the Applicant and his immediate family: If the Applicant is removed from Australia it would become difficult for his partner, Ms Larson. As for the Applicant, we see no reason why he could not again easily adapt to life in the New Zealand. He is in good health. There are also no health reasons that would restrict his mother’s ability to visit him, nor is there evidence that his partner would not be able to gain a visa to New Zealand, although her comments with respect to gaining a working visa must be noted.
Level of education – efforts to improve: The applicant has obtained training and has ability as a boilermaker. Except for his own statements, there is no evidence that the work experience and skills he has obtained while in Australia would not be useful to him to gain employment elsewhere.
DECISION
In exercising the discretionary power to cancel Mr Hooper’s visa, we must take into account the four primary considerations as well as any “other” relevant factor and undertake a balancing exercise. In doing so, we must be guided by the overarching general principle set out in the objectives to the Direction; that is, the protection of the Australian community. Three of the four primary factors favour cancelling Mr Hooper’s visa — his age when he commenced living in Australia, the relatively short period he has resided here and the protection of the Australian community. The other relevant factor, Australia’s international obligations, is not relevant and may be disregarded.
Notwithstanding that the Applicant’s removal from Australia will cause potential suffering to the Applicant’s mother and his partner, their interests are to be subordinated to the interests of Australian community as a whole. The Applicant is a serious offender and we are satisfied that there is a real risk that he may re-offend, particularly if in future he consumes alcohol to excess. This is an instance in which, practically speaking, the protection of the Australian community outweighs all other factors.
The decision under review is affirmed and the applicant’s visa is cancelled.
I certify that the preceding 41 (forty -one) paragraphs are a true copy of the reasons for the decision herein of Honourable Dr B H McPherson CBE, Deputy President and Mr P Wulf, Member.
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Associate
Dated 6 June 2012
Date(s) of hearing 29 May 2012 Solicitors for the Applicant Tony Stolar Counsel for the Respondent Matt Denning
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