JOHN COLQUHOUN and MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2010] AATA 443
•15 June 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 443
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/1274
GENERAL ADMINISTRATIVE DIVISION ) Re JOHN COLQUHOUN Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date15 June 2010
PlaceAdelaide
Decision The Tribunal sets aside the decision under review and remits the matter to the respondent for further consideration, and directs that the discretion under s 501(2) of the Migration Act 1958 (Cth) to cancel the applicant’s visa not be exercised.
D G Jarvis
(Signed)
Deputy President
CATCHWORDS
IMMIGRATION - Class BF Transitional (Permanent) visa - cancellation of visa - discretion to cancel visa where applicant fails character test - substantial criminal record - Ministerial Direction No. 41 - primary and other considerations – absence of relevant evidence - application of Briginshaw test of reasonable satisfaction - decision under review set aside.
Migration Act 1958 (Cth), ss 500(6L) and 501(2)
Briginshaw v Briginshaw & Anor (1938) 60 CLR 336
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313
Rana v University of South Australia [2007] FCAFC 188
Shi v Migration Agents’ Registration Board (2008) 235 CLR 286
REASONS FOR DECISION
15 June 2010 Deputy President D G Jarvis 1. The applicant, John Colquhoun, held a Class BF Transitional (Permanent) visa. A delegate of the respondent decided to cancel the visa in exercise of his discretion under s 501(2) of the Migration Act 1958 (Cth) (the Act), on the grounds that he reasonably suspected that the applicant did not pass the character test referred to in that section, and the applicant had not satisfied him that he passed that test. The applicant has applied to this tribunal for review of the delegate’s decision.
Issue before the Tribunal
2. The applicant has an extensive criminal record. He has been sentenced to terms of imprisonment of 12 months or more on two occasions for various offences. He accordingly concedes that he does not pass the character test by virtue of s 501(6) and (7) of the Act. The only issue before me is whether I should exercise the discretion conferred by s 501(2) of the Act to cancel his visa.
Background Facts
3. The following background facts are largely derived from uncontested evidence of the applicant, the witnesses who were called by him and documentary material before me.
4. The applicant was born in Scotland and is 44 years of age. He migrated to Australia when he was aged three, and arrived in 1968. He has not departed from Australia since then. His permanent residence status was deemed to continue to be in effect on and after 1 September 1994 under the Migration Reform (Transitional Provisions) Regulations, by way of a Class BF Transitional (Permanent) visa. This visa allows the holder to remain in Australia indefinitely.
5. He had a difficult childhood. When he was seven or eight, his parents’ marriage ended. After that he lived with his mother, except for a short time following his mother’s remarriage when he was 12, and he then went to live with his father. He had a difficult relationship with his step-father, and left home at the age of 13. His mother was not prepared to have him back. He has not spoken to her since he was 13.
6. Some time later, when he was 13 or 14, he went to live with a Mr and Mrs Brooks. Mr Brooks was coaching young boys soccer in Elizabeth. They realised one day after a soccer game that he had no home to return to, and they took him in. He had left school at the age of 13, when he was in Year 9. He has continued to live with Mr and Mrs Brooks on and off for about 28 years, except for periods when he lived in a de facto relationship with different partners, and except for periods when he was incarcerated. They became his foster parents. They had a son who was about four years old when they took the applicant in. Their son looked on the applicant as a big brother, and they became close. Sadly, their son died in 2005 when he was 19. The applicant, as well as his foster parents, was grief stricken by his untimely death.
7. The applicant lived with a de facto partner, Ms Kym Whitaker, for about 13 years, and they have a daughter who is now aged 17. Ms Whitaker is very ill with chronic obstructive airways disease, and two years ago was advised that her life expectancy is only five years. The applicant’s daughter has a baby daughter who was born in December 2009, and plans to marry her partner of three years in July next year.
8. About five years ago the applicant commenced a relationship with a Ms Kelly Butler. She is being treated for breast cancer, and her prognosis is uncertain. If he is not deported he intends to marry her, after he has obtained a home and future employment.
9. Since leaving school the applicant has worked in a variety of areas. He has worked for a furniture removalist company, on the assembly line at Holden’s, as a harvest hand and plant operator at Ausbulk, as a forklift operator, as a kitchen hand, and in various positions involving general labouring duties.
10. The offences committed by the applicant are summarised in exhibit R2. His first conviction was in a children’s court in June 1981, when he was 15. He is currently serving a term of imprisonment for rape, and is due to be released from prison in November this year. I will refer further to the applicant’s criminal record below.
Legislation
11. Subsection 501(2) provides as follows:
“(2) The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.”
12. Subsection 501(6)(a) of the Act provides in effect that a person does not pass the character test if the person has a substantial criminal record, and under s 501(7)(c), this is the case where (relevantly) a person has been sentenced to a term of imprisonment of twelve months or more.
13. In accordance with s 499(1) of the Act, the Minister has given a direction, namely Direction (No. 41)–Visa Refusal and Cancellation under s 501 (the Direction), which applies to decision-makers having functions or exercising powers under s 501 of the Act to refuse to grant, or to cancel a visa, of a person who does not satisfy the Minister that the person passes the character test. By virtue of s 499(2A) of the Act, decision-makers must comply with a direction made under s 499(1).
14. Part A of the Direction provides directions on the application of the character test set out in s 501(6) of the Act. Part B provides directions on the primary and other considerations that are relevant to determining whether it is appropriate in the specific circumstances of the case in question to exercise the discretion to refuse to grant, or to cancel, the visa in question. The Direction is binding on this tribunal when reviewing a decision of a delegate of the Minister.
15. In reviewing the delegate’s decision I must conduct a re-hearing, that is, hear the matter afresh; I may exercise all the powers and discretions of the delegate, and must arrive at the correct or preferable decision on the material before me, and not by reference to the material before the delegate: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, and Shi v Migration Agents’ Registration Board (2008) 235 CLR 286.
16. Paragraph 10(1) of the Direction provides for four primary considerations that must be considered in deciding whether to cancel a person’s visa. By virtue of paragraph 11(1) of the Direction, certain other considerations, although not primary, may be relevant, and if so, must be considered in deciding whether to cancel a visa. Paragraph 11(2) provides in effect that it is appropriate that such considerations must be taken into account, but generally they should be given less weight than that given to primary considerations. I shall consider the primary considerations and the other considerations in turn.
17. The objectives of the Direction are set out in paragraph 5.1. This paragraph refers to the objective of protecting the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens, and states that the Government is especially mindful to protect the safety of the community’s more vulnerable members.
18. The following paragraphs appear as part of paragraph 5.2, under the heading “General Guidance”.
“5.2(2)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 concerned may cause to the Australian community; and
(b) the risk of that harm occurring.
(3)Exercise of the section 501 power must also be considered in the context of a wide range of factors, including whether the person began living in Australia as a minor, the length of time the person has been ordinarily resident in Australia and any relevant international law obligations.
(4)In some circumstances it may be appropriate for the Australian community to accept more risk where the person concerned has, in effect, become part of the Australian community owing to their having spent their formative years, or a major portion of their life, in Australia.”
First primary consideration – protection of the Australian community (paragraph 10.1 of the Direction)
19. This requires due consideration to be given to the Government’s objectives as set out in paragraph 5 of the Direction. Paragraph 10.1 provides in effect that the factors relevant to assessing the level of risk of harm to the community include two factors, namely: (a) the seriousness and nature of the relevant conduct; and (b) the risk that the conduct may be repeated.
(a) First factor re protection of Australian community
Seriousness and nature of conduct and examples of such conduct (paragraphs 10.1.1(1) and (2))
20. Paragraph 10.1.1(1) of the Direction provides relevantly that crimes involving violence are of special concern to the welfare and safety of the Australian community, and such crimes, particularly against vulnerable persons such as minors, are especially abhorrent to the whole community.
21. Paragraph 10.1.1(2) provides examples of offences and conduct that are considered serious. The examples that are relevant to the present proceedings include all offences perpetrated against a child (particularly sexually-based offences), rape and other sexually-based offences, assault, and robbery: see paragraphs 10.1.1(2)(b), (c), (d) and (e).
Sentences imposed and extent of applicant’s criminal record (paragraph 10.1.1(3))
22. Counsel for the respondent, Ms Lean, provided a helpful summary showing the categories of the applicant’s offending. This comprised offences involving violence, breaches of court orders, drugs, offences against the community and theft, and the number of offences of particular types under those broad categories. He committed 82 offences in total between 1981 and 2007. This total includes 37 traffic offences and 10 offences relating to possessing cannabis or equipment to administer cannabis. The summary is supplemented by exhibit R6, being two graphs which clearly illustrate the number of months between offences and the periods for which the applicant was imprisoned. The same information appears in tabular form in exhibit R7.
23. The applicant’s criminal history is recorded in exhibit R1, being the Offender History Report provided by the South Australia Police Department, and is summarised in exhibit R2, being a summary of the report prepared by the respondent’s solicitor. The offences for which the applicant was sentenced for terms of imprisonment of more than six months were as follows:
(a)in January 1984, he was convicted of robbery with violence for an offence committed in November 1983, and was sentenced by the Supreme Court of South Australia to imprisonment for a term of six years, with a non-parole period of three years; and
(b)in December 2008, he was convicted of rape. The offence was committed in March 2007, and he was sentenced by the District Court of South Australia to a term of imprisonment of three years.
In addition, the applicant was sentenced to terms of imprisonment of varying periods for offending conduct that occurred on 16 further occasions. The first two offences resulting in imprisonment occurred in May 1986 and August 1987 and entailed building breaking. There was an offence in June 1990 for larceny, and offending conduct in October 1990 involving illegal interference and use of a motor vehicle and resisting police.
24. The offending conduct after that consisted of driving an unregistered and uninsured vehicle, and driving under disqualification. In addition, on four occasions the applicant breached bonds that had been imposed by sentencing courts, committed breaches of bail conditions on two occasions, and breached the terms of parole on two occasions. His offending conduct also included committing common assault in August 2002 on a member of his family, namely his then de facto partner, Ms Whitaker, which resulted in a conviction and a good behaviour bond for a period of two years.
25. Counsel for the applicant, Mr Bastick, invited me to take into account that the offending by the applicant that entailed violent conduct, including his conviction for robbery with violence, occurred many years ago, and also that the applicant claims that he was wrongly convicted of rape in 2008. Counsel further submitted that except for those offences, the remainder of the offending conduct was at the lower end of the criminal scale. Counsel also referred to the applicant’s evidence that his many convictions of driving an unregistered and uninsured vehicle occurred because he was working at locations that were not serviced by public transport, and he drove a vehicle in order to continue to be employed and thereby assist in providing for his daughter.
26. The applicant was only 18 when he was convicted of robbery with violence. He said in effect that the event which gave rise to that offence was not premeditated, and that his accomplice was the instigator of the conduct concerned. I note that in his sentencing remarks, the Judge who imposed the term of imprisonment recorded that the applicant was easily led, and was led by his accomplice.
27. As to the conviction of rape in 2008, the applicant gave evidence that he had pleaded not guilty to the charge, but was convicted in a majority jury decision. He maintained that he did not commit the offence, and was wrongly convicted.
28. However, this tribunal is entitled to receive evidence of a conviction and sentence and to treat it as probative of the factual matters upon which the conviction and sentence were necessarily based: see Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313, at [41]. In that case Branson J referred to the intention of the Act, and said at [43], omitting references, that the Act should be administered in a way that:
“(a)recognises that the criminal justice system is pre-eminently suited to the determination of the guilt of persons charged with criminal offences …; and
(b)limits inconsistency between decisions of the criminal courts and those of tribunals …”.
29. In the present matter, the evidence that led to the conviction and sentence for rape are referred to in some detail in the Judge’s summing up to the jury, a copy of which is exhibit R5. I assess the relevance of the conviction and sentence by reference to the information in that exhibit. The tribunal, when reviewing this decision, is not entitled to impugn or go behind either the conviction or the sentence.
30. The respondent also relied upon further evidence which is the subject of a confidentiality order. I refer to this in a confidential addendum to these reasons for decision. I have assessed this further evidence by reference to the principles in Briginshaw v Briginshaw & Anor (1938) 60 CLR 336, at 361 - 363. In that case Dixon J (as he then was) explains that the seriousness of allegations made in civil proceedings (such as where criminal conduct is asserted) affects the process by which reasonable satisfaction, on the balance of probabilities, is attained. As appears from the addendum to these reasons, I am not reasonably satisfied that the applicant engaged in the conduct in question (except where it is admitted), having regard to the nature of the allegations implicit in the evidence in question, because not all of the relevant evidence in relation to those allegations was provided.
31. However, having regard only to the offences for which the applicant has been convicted, including the most recent conviction for rape, the nature and number of the convictions, and the frequency and regularity of the applicant’s offending conduct, I have concluded that the applicant’s offending conduct is of a very serious order, and (taken by itself, and without referring to the risk of recidivism) indicates that his continued presence in Australia would entail a significant risk to the community.
Other factors (paragraph 10.1.1(4))
32. I have taken into account the available judicial comments and pre-sentence reports that have been included in the material tendered. I have referred above to the sentencing remarks in relation to the offence of robbery with violence, and the applicant’s evidence as to the circumstances of that offence. I also take into account as a mitigating factor the extreme hardship that the applicant endured as a child, and the grief that resulted from the death of his foster step-brother, but these matters must be weighed against the support he received from his foster parents and his failure to take advantage of the leniency extended to him on occasions where his sentences were suspended or bonds were imposed.
(b) Second factor re protection of Australian Community – the risk that the relevant conduct may be repeated (paragraph 10.1.2 of the Direction)
Applicant’s previous general conduct and total criminal history (paragraph 10.1.2(1))
33. I take into account the applicant’s history of employment, which has no doubt been impeded by his periods of incarceration. I also have taken into account that the frequency of his offending in recent years appears to have continued unabated, if allowance is made for periods when he was incarcerated. I also note the evidence that the applicant has breached orders in respect of bonds, bail conditions and parole. I have also taken into account under this heading the pre-sentence reports and sentencing remarks that are included in the material before me.
34. The applicant has undergone a Drugs and Alcohol Rehabilitation course in prison, and has undergone a number of educational courses. A report by Ms Jeannette Padman, the senior social worker at Mobilong Prison, records the outcome of the risk of re-offending test that she conducted. This shows that the likelihood of re-offending was of a “medium/low” risk (exhibit A1, page 2), as the applicant recorded a score of 14, where an under 13 score was considered as low risk. However, I am unable to attach significant weight to this report, because it also indicates that other tests should be undertaken. I have also been provided with a letter that indicates that the applicant was not involved in any incidents while in the Port Augusta prison, and the Case Management Co-ordinator there said he was “normally polite and compliant with directions” (exhibit R3, page 94).
35. There are some other matters which are favourable to the applicant in an assessment of the risk of recidivism. He has no other convictions for sexual offending except for his 2008 conviction for rape. There is no evidence in this matter, unlike many matters that come before this tribunal, that the applicant has an addiction to drugs that is likely to result in continued offending to support the addiction. The applicant gave evidence of his extreme concern at the prospect of being deported and separated from his immediate family and new granddaughter, and he said that he was determined not to re-offend if he is allowed to remain in Australia. His concern is also manifest from the various letters that he sent to the Department of Immigration and Citizenship and to this tribunal. He also referred to having matured and having reduced the extent of his drinking. He said that his driver’s licence has now been restored, and he is determined not to commit any further driving offences which would result in the loss of his licence. The applicant’s foster mother, Mrs Brooks, gave evidence that she had also noticed that the applicant has matured in recent years, that he wants to be involved in his grand-daughter’s life, and has reduced the extent of his drinking. She also said he was now in a stable relationship with Ms Butler, and knows that if he offends again that will be the end of that relationship and he will be deported. She was confident that he will not re-offend. Similarly, Ms Butler gave evidence that the applicant is very different to how he was when she first met him about 15 years ago, and that he has changed and matured over the five years in which she has had a relationship with him. The applicant’s father gave evidence that from his observations, the applicant loves his daughter and wants very much to be able to spend his future with her and with his granddaughter. He said he believed that the applicant had reached a turning point in his life, and that the threat of deportation and being separated from his family would, in future, provide a deterrent from re-offending.
36. The above evidence must be considered against the applicant’s grave prior criminal record, which reveals a persistent course of offending over a long period. The expectations of the various witnesses as to the likelihood of re-offending may be misguided. Taking into account all of the evidence and considerations in relation to the first primary consideration, I conclude that if the applicant is allowed to remain in Australia, there is a real risk of his re-offending, but that the risk of his committing offences or engaging in conduct of the kind that is considered to be serious or that would entail significant harm to the community is low. Nevertheless, having regard to the seriousness and nature of the applicant’s past conduct, the first primary consideration would indicate on balance that his visa should be cancelled.
Second primary consideration – whether the applicant was a minor when he began living in Australia (paragraph 10.2)
37. This consideration, which was not included in the predecessor of the Direction, provides relevantly as follows:
“10.2(1)If the person was a minor when they began living in Australia and spent their formative years in Australia, thereby increasing the likelihood of establishment of greater ties and linkages to the Australian community, this is to be given favourable consideration.”
38. As mentioned above, the applicant was only three when he began living in Australia. He has never been overseas since he came here with his parents. He spent his formative years in Australia. This factor is favourable to the applicant.
Third primary consideration – the length of time that a person has been ordinarily resident (paragraph 10.3)
39. Paragraph 10.3(1) provides as follows:
“10.3(1)Reflecting the fact that the longer a period of residence in Australia the greater the likelihood of significant ties to the Australian community, 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.
Note:For example, a period of more than 10 years of residence in Australia prior to a person engaging in criminal activity or activity which bears negatively on the person’s character would be an important consideration.”
40. This consideration appears to be more relevant to non-citizens who were of age when they began living in Australia. However, to the extent that this consideration is relevant in the present matter, I note that the applicant began offending when he was still a child aged 15. By then he had lived in Australia for more than 10 years, had been to school in Australia, and had no doubt developed significant ties to the Australian community.
Fourth primary consideration – international obligations (paragraph 10.4)
41. Various considerations arise under this heading. The only consideration that is potentially relevant is that referred to in paragraph 10.4.1, namely the best interests of the applicant’s child. This consideration only applies if the child is under 18 years of age at the date of my decision. This is the case with the applicant’s daughter.
42. She gave evidence that she visits the applicant in gaol and takes her child to see him. He telephones her about once a week. She described her relationship of love and friendship with the applicant, and said that in the past she derived considerable assistance from him in overcoming a drug addiction. She also referred to her devastation when hearing that he was to be deported.
43. As against these matters, the applicant’s daughter will turn 18 prior to the date when he is due to be released from prison. He is accordingly not in a position to play a full parental role up to her eighteenth birthday (being a consideration referred to in paragraph 10.4.1(5)(c) of the Direction). As a result, this is a case where the best interests of the child is an insignificant consideration in the context of the fourth primary consideration, although by virtue of paragraph 10.4.1(2) the applicant’s daughter’s best interests may be considered under paragraph 11 of the Direction, which I will now consider.
Other Considerations – Paragraph 11
44. Paragraph 11 of Direction No. 41 contains a non-exhaustive list of other considerations that are not the primary considerations but, under paragraph 11(1), may be relevant, and if so, must be considered. Paragraph 11(2) provides:
“(2)It is appropriate that these considerations, where relevant, must be taken into account but, generally, they should be given less weight than that given to primary considerations.”
(a)Family ties, the nature and extent of any relationships (paragraph 11(3)(a))
45. I referred above to the evidence of the applicant’s daughter. She also said that if the applicant were to be deported, she would find it very difficult to visit him in the United Kingdom, both because of the age of her own daughter and because of the expense involved in travelling to England. She said that if her mother dies, she would effectively have no parental support. She is also concerned that she would revert to drug use in the event of the applicant being deported.
46. The applicant has close ties with his foster parents. His foster mother gave evidence of the closeness of their relationship, the advancing age and health problems of herself and her husband, and the assistance with repairs, maintenance and gardening that the applicant has provided in the past.
47. The applicant’s current partner, Ms Butler, also gave evidence in support of the applicant. She is suffering from breast cancer, and spoke of the assistance and emotional support that she receives from the applicant, and said that if he is deported, she would “give up”. She confirmed that she and the applicant want to get a house and plan to get married after he is released from prison. She said that if the applicant were to be deported, she would consider going to live in the United Kingdom with him, but could not do so until her eight-year old daughter is older, because she would not leave her daughter at this stage, and her father would not agree to her taking her daughter out of the country. Ms Butler said that she had known the applicant for about 10 to 15 years, and was aware of his criminal record before establishing a relationship with him about five years ago.
48. The applicant’s father gave evidence. He said that he had kept in touch with the applicant after he and his wife were divorced and over the years since then, and visits him in prison. He is estranged from his former wife and he no longer sees his other son or his daughter, and over the years the applicant has regularly helped him around his home. He said that it would be a hardship to him if the applicant were not around to help out in the future, if needed. He is now 76 years old, has back problems and sometimes has trouble walking, and his memory is failing. He gave evidence that it would “break his heart” if the applicant were to be deported, as the applicant and his daughter are the only family he has left in Australia. He also said that in that event, due to his financial position, he would only be able to go once or twice for a short period to the United Kingdom to visit him, and this would be a struggle.
(b)The applicant’s age (paragraph 11(3)(b))
49. The applicant is 44 years of age. There was no evidence as to his ability to access services in the United Kingdom, although because he was born in the United Kingdom, he would presumably have entitlements as a British subject.
50. He has lived for most of his life with his foster parents, and intends to do so when he is released from prison. He would, of course, be unable to do this if he is deported.
(c)The applicant’s health (paragraph 11(3)(c))
51. The applicant gave evidence that he suffers from bronchitis and asthma, and that he is concerned that the colder weather in the United Kingdom would have an adverse effect on these conditions. He tendered a medical imaging report of a chest x-ray, which indicates an appearance compatible with bronchitis/asthma. The report does not suggest any other condition of any significance.
(d)Links to country of deportation (paragraph 11(3)(d))
52. The applicant has no links to the United Kingdom, and no significant familial ties or support in that country.
(e)Hardship to applicant and his immediate family (paragraph 11(3)(e))
53. The applicant gave evidence of his extreme concern about the prospect of being deported to the United Kingdom. He said that it would “break his spirit”. I accept the genuineness of his concern. The applicant has limited educational qualifications, and having regard to his criminal record, he is likely to find it difficult to obtain employment in the United Kingdom.
54. His only relatives in the United Kingdom are his father’s older sister and her husband, who are both elderly and not in good health. The applicant’s father said that they would not be able to support the applicant in the United Kingdom.
55. I have referred above to the position of the applicant’s immediate family members, their relationship with him and to matters relevant to the hardship they would suffer if he is deported. With the exception of the applicant’s father, it appears that other members of his immediate family would not be able to travel overseas to visit him in the United Kingdom, at least in the foreseeable future.
(f)Education considerations (paragraph 11(3)(f))
56. The applicant has completed Parts A and B of an Alcohol and Other Drugs Program. He has also undertaken certain vocational educational courses during his time in prison. He pursued some of these studies so that he would be able to undertake an electrician’s course when he is released. However, he said he has had a variety of occupations over the years, and that he has never found it difficult to obtain employment.
(g) Formal warning re cancellation of visa on character grounds (paragraph 11(3)(g))
57. The applicant has never been given a warning by an officer of the Department of Immigration and Citizenship that his visa was subject to cancellation on character grounds. Further, there is no evidence before me that at the time when he was sentenced for any of the offences of which he has been convicted that he was warned that further offending might give rise to the cancellation of his visa.
58. My analysis of the other considerations in paragraph 11 of the Direction do not favour the cancellation of the applicant’s visa.
Summary and Conclusion
59. As mentioned above, the second primary consideration is favourable to the applicant. The first primary consideration is unfavourable, although on my analysis, the risk of his committing serious offences of the kind referred to in paragraph 10.1.1(2) of the Direction, or of re-offending in a way that would cause significant harm to the Australian community, is low. The third and fourth primary considerations have little relevance to this matter. The final group of “other considerations” referred to in paragraph 11 of the Direction generally indicate that the visa should not be cancelled, but are of less weight than the primary considerations. After carefully evaluating all of the considerations referred to in the Direction I have decided, but not without considerable hesitation, not to exercise my discretion to cancel the applicant’s visa.
60. It is appropriate to add the following remarks. The applicant’s criminal record indicates that he has persistently flaunted the laws of this country. He has become acutely aware as a result of the delegate’s decision and the proceedings in this tribunal that his offending conduct renders him liable to deportation. Nevertheless, I recommend that the Department of Immigration and Citizenship should reinforce this awareness by issuing a formal warning that if in the future he commits any offence or engages in conduct harmful to the Australian community, a fresh assessment will be made by the Department as to whether his visa should be cancelled. I cannot of course fetter the exercise of discretion by a future decision-maker in making any such further assessment, but in view of the nature and extent of the applicant’s criminal record and the concerns I have expressed in the present matter, he should expect that the discretion will be exercised in favour of cancelling his visa. I trust that when his advisers inform the applicant of the outcome of these proceedings, they will draw these remarks to his attention, and emphasise their significance.
Decision
61. The Tribunal sets aside the decision under review and remits the matter to the respondent for further consideration, and directs that the discretion under s 501(2) of the Migration Act 1958 (Cth) to cancel the applicant’s visa not be exercised.
I certify that the 61 preceding paragraphs are a true
copy of the reasons for the decision herein of Deputy President D G Jarvis…. (Signed) ….
AssociateDate/s of Hearing 1, 2 and 4 June 2010
Date of Decision 15 June 2010
Counsel for the Applicant Mr M Bastick
Solicitor for the Applicant Brompton Chambers
Counsel for the Respondent Ms S Lean
Solicitor for the Respondent Australian Government Solicitor
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