JEFFREY CHADWICK and MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2013] AATA 312
[2013] AATA 312
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/0980
Re
JEFFREY CHADWICK
APPLICANT
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
RESPONDENT
DECISION
Tribunal Dr P McDermott, RFD, Senior Member
Date 17 May 2013 Place Brisbane The Tribunal affirms the decision under review.
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Dr P McDermott, RFD, Senior Member
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – Cancellation of visa – Character test – Discretion to cancel visa – Substantial criminal record – Ministerial Direction – Primary considerations – Serious offences against vulnerable members of the community – Risk of reoffending – Other considerations – Weight given to considerations favour cancellation – Decision under review affirmed
PRACTICE AND PROCEDURE – Original decision made in accordance with Ministerial Direction in force at the time – New Ministerial Direction issued prior to application for review by the Tribunal – Application to be considered under Ministerial Direction in force at the time of Tribunal hearing
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 35
Migration Act 1958 (Cth) ss 499, 501
CASES
Chadwick and Minister for Immigration and Citizenship [2012] AATA 529
Re Costello and Secretary, Department of Transport (1979) 2 ALD 934
Wilson v Minister for Immigration and Citizenship [2012] FCA 1421
SECONDARY MATERIALS
Direction No. 55 – Visa refusal and cancellation under s501
REASONS FOR DECISION
Dr P McDermott, RFD, Senior Member
INTRODUCTION
On 16 May 2012, a decision was made by a delegate of the Minister for Immigration and Citizenship (“the respondent”) to cancel the Class TY Subclass 444 Special Category (Temporary) Visa (“the visa”) of Mr Jeffrey Chadwick (“the applicant”) who is a New Zealand Citizen. This decision was made under s 501(2) of the Migration Act 1958 (Cth) (“the Act”). The applicant has made an application for the review of that decision.
JURISDICTIONAL BACKGROUND
On 12 June 2012, the applicant lodged an application for review of the decision with this Tribunal which, on 13 August 2012, dismissed the application for want of jurisdiction.[1] As a consequence of the decision of Edmonds J in Wilson v Minister for Immigration and Citizenship,[2] on 28 February 2013 the applicant was notified of the decision to cancel his visa. On 5 March 2013, the applicant lodged an application for review of the decision with this Tribunal.
[1] Chadwick and Minister for Immigration and Citizenship [2012] AATA 529.
[2] [2012] FCA 1421.
BACKGROUND
From 2007 the applicant was engaged in a number of offences relating to child pornography. On 25 August 2011, the applicant was convicted of 18 offences relating to child pornography. The offences involved the applicant taking many photographs of seven children on 15 different occasions. The applicant was convicted upon 15 counts of indecent treatment or dealings with a child under 16 years of age and sentenced to three years imprisonment on each count. The applicant was convicted upon one count of possession of child exploitation material for which he was sentenced to 18 months imprisonment. The applicant was also convicted upon two counts of using a carriage service to make child pornography material available and was sentenced to imprisonment for six months on each count.
The District Court Judge made the following remarks upon sentencing the applicant:
Your offending in relation to these offences was deliberate, prolonged and persistent. Seven different children were involved. Many photos were taken and they were taken on 15 separate occasions.
The children were at your house to play with your children. You were effectively in a position of trust as far as they were concerned and their parents trusted you to look after their children. Their parents trusted you not to interfere with their children. Their parents certainly trusted you not to commit offences such as the present in relation to their children.
The children appear to have been made to pose in an explicit way by you for the purposes of sexual gratification for you as an individual at their expense. A degree of corruption is involved. ...
You were sufficiently aware of what you were doing to not do it to your own children, but to take advantage of the children of others. I consider that you did, in fact, realise that what you were doing was indecent, inappropriate, improper and unlawful. Yet, notwithstanding that, you continued to engage in such activity.
...
Now I agree with the remarks of Judge Durward in the case of Walker that your behaviour so far as the children the subject of the photographs you took is concerned, is properly described as predatory, premeditated and persistent. Your behaviour was disgraceful and is deserving of condign punishment.
CHARACTER TEST
Under s 501(2) of the Act:
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.
There are a number of circumstances in which a person does not pass the character test within the meaning of s 501 of the Act. For the purpose of this application the respondent relies upon s 501(6)(a) of the Act on the ground that the applicant has “a substantial criminal record”, as defined by s 501(7) of the Act, as he “has been sentenced to a term of imprisonment of 12 months or more”: see s 501(7)(c).
The applicant has been convicted and sentenced in relation to 18 offences which are sexual offences relating to children. In particular, the applicant was convicted of 15 offences of indecent treatment of children for which he was sentenced to three years imprisonment on each charge. The applicant was also sentenced to 18 months imprisonment on a charge of possessing child exploitation material. The sentencing judge made a decision that all sentences were to be served concurrently and that the applicant be eligible for parole after one year in prison.
I am satisfied that the applicant has a substantial criminal record under s 501(6)(a) of the Act as he has been sentenced to a term of imprisonment of 12 months or more. I accordingly find that he does not pass the character test.
Having found that the applicant does not pass the character test, I am now required to consider whether to exercise the discretion in s 501(2) of the Act to cancel the visa of the applicant. In the exercise of this discretion I am required to comply with any Direction that has been issued by the Minister under s 499 of the Act: see s 499(2A).
MINISTERIAL DIRECTION
On 25 July 2012, the Minister issued “Direction No. 55 – Visa refusal and cancellation under s501” (“the Direction”) under s 499 of the Act. This Direction commenced operation on 1 September 2012 and provides that this Tribunal is a “decision‑maker” within the terms of the Directive: see Annex B.
The Preamble to the Direction recites that the objective of the Act “is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens”: see para 6.1(1). The Direction refers to the definition of a “non-citizen” in s 5 of the Act, which defines a non-citizen to be a person who is not an Australian citizen: see Annex B. It is stated in the Preamble that a person may have their visa cancelled “if the decision‑maker reasonably suspects that a person does not pass the character test, and the person does not satisfy the decision-maker that they pass the character test”. Where the discretion to cancel a visa is enlivened, “the decision-maker must consider whether to exercise the discretion to cancel the visa given the specific circumstances of the case”: see para 6.1(2).
Paragraph 6.2 of the Preamble, which is headed “General Guidance”, contains the following statement:
(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.
The “principles” are set out in para 6.3 of the Direction and provide a framework within which decision-makers should approach their task of deciding whether to cancel the visa of a non-citizen under s 501 of the Act: see para 6.2(3).
The principles are as follows:
1.3 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.
I am satisfied that the applicant is a person who is of “character concern” as referred to in para 6.3(1) of the Direction. Annex B of the Direction provides that the reference to “character concern” imports the definition of “character concern” in s 5C of the Act, which provides that a non-citizen is of “character concern” where that person “has a substantial criminal record”. I have already found that the applicant has a substantial criminal record.
Paragraph 8 of the Direction provides that a decision-maker take into account the “primary” and “other” considerations relevant to the individual case; that “both primary and other considerations may weigh in favour of, or against, refusal or cancellation of the visa”; that “primary considerations should generally be given greater weight than the other considerations”; and that “one or more primary considerations may outweigh other primary considerations”.
Paragraph 9 of the Direction lists a number of primary considerations which are relevant to the determination of this application. Relevantly, these are:
(a) Protection of the Australian community from criminal or other serious conduct;
(b) The strength, duration and nature of the person’s ties to Australia;
(c) The best interests of minor children in Australia;
(d) Whether Australia has international non-refoulement obligations to the person.
Paragraph 10 of the Direction list the “other considerations” which are relevant to the determination of this application. These are:
(a) Effect of cancellation of the person’s visa on the person’s immediate family in Australia, if those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely;
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(c) Impact of a decision not to cancel 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 the person being considered for visa cancellation has been afforded procedural fairness;
(d) The extent of any impediments that the person may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
i. The person’s age and health;
ii. Whether there are substantial language or cultural barriers; and
iii. Any social, medical and/or economic support available to them in that country.
CONSIDERATION
One matter that was raised by the applicant was that there was a need for a decision to be made with reference to “Direction No. 55 – Visa refusal and cancellation under s501”. At the time when the delegate made his decision on 16 May 2012, the relevant direction which was then in force was “Direction [No. 41] – Visa refusal and cancellation under s501” (“Direction [No. 41]”). Direction [No. 41], which had been made by the Minister under s 499 of the Act, was then binding upon the delegate. The decision of the delegate was made in accordance with the law that existed at the time of the decision. I make reference to the “law” as Direction [No. 41] is subject to disallowance under s 499(3) of the Act.
This decision of the delegate remains in force unless it is set aside. In considering this application I am required under s 499(2A) of the Act to consider the Direction which is now in force. I also rely upon a long-standing decision of this Tribunal that it will apply the law that exists at the time of a decision of the Tribunal: Re Costello and Secretary, Department of Transport (1979) 2 ALD 934.
Protection of the Australian community
The first of the primary considerations in the Direction concerns the protection of the Australian community. Paragraph 9.1 provides:
9.1 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. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) 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.
9.1.1 The nature and seriousness of the conduct
(1) In considering the nature and seriousness of the person’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
(a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very 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; or 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 s501(6)(b) or (d), or is not of good character under s501(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) Whether the person has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the person’s migration status (noting that the absence of a warning should not be considered to be in the person's favour);
(j) Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
9.1.2 The 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 risk that it may be repeated may be unacceptable. In making this 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 on the risk of the person reoffending; and
iii. 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).
I will consider the first of the primary considerations. The applicant comes within the terms of para 6.3(2) of the Direction which provides, relevantly, that a non-citizen who has committed a serious crime, including of a sexual nature, and particularly against vulnerable members of the community such as minors, should generally expect to forfeit the privilege of staying in Australia.
I am also required by the Direction to consider the risk to the Australian community should the person commit further offences or engage in other serious conduct. In assessing the risk to the Australian community, I have placed some weight on the opinion of Dr Bartholomew Klug who is a consultant psychiatrist of some seniority in the profession.[3]
[3] See Exhibit 26.
Dr Klug was engaged by the applicant. Dr Klug interviewed the applicant on 26 March 2013 and provided a report dated 28 March 2013.[4] In that report Dr Klug opined that there was a risk of the conduct of the applicant being repeated. Dr Klug remarked:
There is a possibility of the conduct being repeated and/or recidivism recurring.
Dr Klug also reported:
Should Jeffrey be allowed to remain in Australia and not have his Visa cancelled, he would pose a possible risk to the Australian Community.
Dr Klug did not attempt to quantify the degree of risk in his report; he also did not quantify the degree of risk whilst he was giving evidence.
[4] See Exhibit 24.
In his report, Dr Klug indicated that there were indications that the applicant was motivated to rehabilitate himself. However, he added:
However, I am unable to give an opinion whether that means that he was fully rehabilitated.
Dr Klug was informed that the applicant claimed that he did not commit the offences for sexual gratification. Dr Klug gave his opinion that the rehabilitation of the applicant had not given him insight into his offending.
There is a report from Ms Meryl Corke, dated 4 April 2011,[5] in which she stated that at the time of the offences the applicant was unaware of the inappropriateness and the consequences of his behaviour. However, she states that at the time of her assessment he had gained this awareness and, for that reason, he would be unlikely to reoffend. I do not give any weight to this report for a number of reasons. Ms Corke stated that she was not a forensic psychologist or an expert witness in giving an opinion as to the risk that the applicant would reoffend. Ms Corke had also not recently seen the applicant and was not in the position to provide an up-to-date report on him.
[5] See Exhibit 27.
Mr Ashley Phelan, psychologist, provided a statutory declaration, dated 26 April 2013, in which he concluded:[6]
I believe that, based on objective assessment using internationally validated tools, my previous experience and training, my knowledge of the process and the system of sexual offender management and rehabilitation and my knowledge of Mr Chadwick and the sexual population he pertains, the likelihood of Mr Chadwick sexually reoffending is low.
[6] See Exhibit 29.
Mr Phelan stated that he did not himself interview the applicant but that his report was based upon a review of materials held by Queensland Corrective Services. Those materials include the records of the rehabilitation programs that were undertaken by the applicant (Getting Started Preparatory Program and the Medium Intensity Sexual Offending Program). There was also reliance on a STATIC 99R test that was undertaken before the applicant had undertaken any rehabilitation. The applicant was given a score of one on the STATIC 99R test; individuals with this score in the normative sample reoffended at 3.8% over five years.
The applicant was assessed for the STATIC-99R test on 20 October 2011. I am not persuaded that this is a case where the STATIC-99R test can be regarded as providing an accurate assessment of the risk of recidivism of the applicant. The documentary evidence of the STATIC-99R test contains the statement before me that the test is only of “moderate accuracy”.[7] There is also a statement in the evidence that the recidivism rates in the STATIC-99R test “do not correspond with the recidivism rate of an individual offender”.[8] In view of this statement I do not regard the STATIC-99R test as providing an accurate assessment of the recidivism rate of the applicant.
[7] See Exhibit 22, p. 2 of 14.
[8] See Exhibit 22, p. 10 of 14.
The applicant was also assessed for the STABLE-2007 test on 20 October 2011. This test is designed to identify the “STABLE criminogenic needs/intervention targets for sex offender programs and reduction of risk”. The STABLE-2007 test indicated that the applicant had high needs.[9]
[9] See Exhibit 22, p. 8 of 14.
In the STABLE-2007 test, the applicant was given a score of 0 for STABLE factor No. 2, which is entitled “Capacity for Relationship Stability”, on the basis that he “has a current partner who is prepared to re-establish their relationship when the prisoner is released”.[10] I am not persuaded that this assumption is correct. On 15 October 2012, the spouse of the applicant swore an affidavit which was filed in the High Court of New Zealand in which she sought a parenting order which would provide that the applicant have only supervised contact with the children of the marriage through an agency.[11] On the state of the evidence before me I am unable to make a finding that the applicant is still married. The applicant himself stated that his spouse was about to file divorce papers but was unable to afford the filing fee. However, the brother-in-law of the applicant has provided a statement, dated 22 March 2013, in which has suggests that the applicant may no longer be married.[12] Whatever be the case on whether or not the applicant is married, I do not consider that his spouse is “prepared to re-establish their relationship”. I do not consider that the score of 0 for STABLE factor No. 2 is accurate.
[10] See Exhibit 22, p. 3 of 14.
[11] See Exhibit 37.
[12] See Exhibit 7.
I have had regard to the serious crimes that have been committed by the applicant. I have had regard to para 9.1.1(b) of the Direction and find that the offences are serious offences as they were committed against minors who are vulnerable members of the community. Having regard to the report of Dr Klug, I have concluded that there is certainly a risk that the applicant would reoffend. Even if I accept the evidence before me that there is a low risk that the applicant would reoffend (which is not the case), I have concluded that the risk to the Australian community should the applicant commit further offences is a risk which would be unacceptable: see para 9.1.2(1). I consider that this first primary consideration weighs very heavily in favour of cancellation of the visa of the applicant.
Strength, duration and nature of the person’s ties to Australia
In relation to the second of the primary considerations, the Direction provides at para 9.2:
9.2 Strength, duration and nature of the person’s ties to Australia
(1) Reflecting the principles at 6.3, decision-makers must have regard to:
(a) How long the person has resided in Australia, including whether the person arrived as a young child, noting that:
(i) Less weight should be given where the person began offending soon after arriving in Australia; and
(ii) More weight should be given to time the person has spent contributing positively to the Australian community.
(b) The strength, duration and nature of any family, social and/or employment links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
On behalf of the applicant, it is contended that he has strong ties with the Australian community in that his father, sister and brother-in-law are Australian citizens and his brother is an Australian resident of longstanding. I also appreciate that his father, who is a recent widower, would benefit from the support of his son. To his credit, I should record that the applicant has always been in gainful employment. However, the applicant last arrived in Australia as an adult on 2 December 2002[13] and commenced committing the offences in January 2007, a period of only four years after arriving in Australia. The Direction provides that less weight should be given to this primary consideration where the person began offending soon after arriving in Australia. Having regard to the fact that the applicant began committing serious crimes after only four years in the Australian community, this primary consideration weighs only slightly against the cancellation of the visa of the applicant.
[13] See Exhibit 1, G-documents, p. 38.
Best interests of minor children in Australia
In regard to the third of the primary considerations, para 9.3 of the Direction provides that the “best interests of minor children in Australia affected by the decision” are to be given consideration by the decision-maker.
The applicant does not have any minor children who are in Australia; his minor children are in New Zealand. I consider that this third primary consideration has no bearing on this application.
International non-refoulement obligations
In regard to the fourth of the primary considerations, the Direction provides at para 4(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.
There is no evidence that these international obligations have any relevance to this application. I therefore conclude that this fourth primary consideration has no bearing on this application.
Other considerations
Paragraph 12 of the Direction refers to a number of other considerations that must be considered. The applicant has immediate family members in Australia who are Australian citizens or have a right to remain in Australian indefinitely. The father of the applicant now lives by himself in a retirement village and would certainly benefit from the support of his son. However, there is no evidence that the applicant has any offer of employment in that locality, although his father believes that he would be able to gain employment for his son in Australia. I am unaware of the employment prospects of the applicant in New Zealand. There may be difficulties in the applicant returning to the location of his former home in view of the concern of the parents of the victims. There would be no impact on any Australian business interests if the visa of the applicant was cancelled.
The list of other considerations in para 12 of the Direction is not an exhaustive list of the other considerations that have to be considered. I have had regard to some other considerations. The age of the applicant is not a factor that operates to prevent his removal from Australia. There is no evidence of any medical condition that is suffered by the applicant which would operate to prevent his removal from Australia. The applicant has close relatives, including his children and spouse, in New Zealand. While I appreciate that the applicant would suffer hardship as he would be separated from his father and other relatives, his relatives have indicated that they would continue to support him as best as they can.
I have concluded that these other considerations weigh slightly against the cancellation of the visa.
SHOULD THE DISCRETION TO CANCEL THE VISA BE EXERCISED?
The first primary consideration weighs very heavily in favour of cancellation of the visa. In view of the fact that the applicant began committing serious offences after only four years in the Australia, the second primary consideration weighs only slightly against the cancellation of the visa. The third and fourth of the primary considerations have no bearing on this application. After examining the circumstances of this case, I consider that the first primary consideration in the Direction outweighs the second primary consideration: see para 8(5) of the Direction. I also consider that the first primary consideration outweighs the other considerations against cancellation. Paragraph 11(2) of the Direction provides that these other considerations must be accorded less weight than that given to the primary considerations.
In my view the discretion to cancel the visa should be exercised. Accordingly, the preferable decision is that Mr Chadwick’s visa be cancelled pursuant to s 501(2) of the Act.
DECISION
I affirm the decision under review.
I make an order under s 35(2)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) that the disclosure or publication of the statutory declaration of Mr Jeffrey Frank Chadwick, dated 22 March 2013 and marked “Exhibit 2”, and the statement of Mr Ken Mawson, dated 22 March 2013 and marked “Exhibit 7”, be restricted to the applicant and his legal advisors and any legal advisor of the respondent. I make this order because these documents identify the victims of the applicant as well as children of the applicant.
I certify that the preceding 45 (forty –five) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member
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Associate
Dated 17 May 2013
Date of hearing 2 May 2013 Counsel for the Applicant Mr William J Markwell Solicitor for the Respondent Mr Tigiilagi Eteuati, Clayton Utz
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