John Munro and Minister for Immigration and Citizenship

[2012] AATA 205

[2012] AATA  205

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/0284
Re	John Munro
APPLICANT
And	Minister for Immigration and Citizenship
RESPONDENT

DECISION

Tribunal	Ms N Bell, Senior Member
Date	11 April 2012
Place	Sydney

The Tribunal affirms the decision under review.

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Ms N Bell, Senior Member

CATCHWORDS

IMMIGRATION – Visa cancellation – character grounds – substantial criminal record – applicant New Zealand citizen – risk of reoffending – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 501(2), (6), (7)

SECONDARY MATERIALS

Ministerial Direction No. 41 on Visa Refusal and Cancellation under section 501

REASONS FOR DECISION

Ms N Bell, Senior Member

11 April 2012

1. John Munro arrived in Australia from New Zealand in April 2007 when he was 18 years old.  On 19 January 2012 the Minister cancelled his visa on the ground that he had failed the character test in the Migration Act 1958 because he has a substantial criminal record, having been convicted of two counts of Aggravated Robbery and Use Corporal Violence and sentenced respectively to four years imprisonment with a non-parole period of one year and nine months; and three years and ten months imprisonment with a non-parole period of eighteen months.  The convictions arose out of an incident in April 2010 when Mr Munro, together with six young persons, inflicted bodily violence on two men who were waiting at a bus stop.

2. It is agreed Mr Munro does not pass the “character test” in the Migration Act 1958 and the Minister may cancel his visa.  (See sections 501(2), (6) and (7) of the Act).

3. Ministerial Direction No. 41 on Visa Refusal and Cancellation under section 501 of the Act is a set of primary and “other” considerations that I must take into account in the exercise of the discretion whether to cancel Mr Munro’s visa and effectively send him back to New Zealand.

4. The primary considerations in the Direction are:

   (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, including but not limited to:

   (i)the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and

   (ii)the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

5. These considerations are expanded by a range of factors to which I must have regard. The additional “other” considerations contained in the Direction and relevant to Mr Munro’s circumstances are indicated by the headings that appear below.

   PRIMARY CONSIDERATIONS

6. The primary consideration of most importance in relation to Mr Munro is the protection of the Australian community.  Also of particular relevance is the length of time Mr Munro was resident in Australia before he committed the offences.  He was 18 when he came to Australia and so no consideration of minority age applies.

   Protection of the Australian Community

7. The Direction requires me to consider, in the context of protection of the community, the seriousness and nature of the criminal conduct and the risk that it may be repeated.

8. Mr Munro has the following convictions:

Offence	Charge Date	Court Date	Sentence
Unlicensed Driver/Rider (Not Licensed for 5 years) – 1st Offence	10/01/2008	25/01/2008	Fine of $400 plus court costs $70
Special Category Driver Drive with Special Range Prescribed Concentration of Alcohol	13/03/2008	16/04/2008	Fine of $400 plus court costs of $70 and disqualification for 6 months
Never Licensed Person Drive Vehicle on Road	13/03/2008	16/04/2008	Fine of $600 plus court costs of $70 and disqualification for 3 years
Assault Officer in Execution of Duty	05/09/2008	04/06/2008	Fine of $500 plus court costs of $73
Resist Officer in Execution of Duty	05/09/2008	04/06/2009	Fine of $500 plus court costs of $73
Aggravated Robbery and Use Corporal Violence	08/04/2010	07/02/2011	Imprisonment for 4 years with a non-parole period of 1 year and 9 months – release subject to supervision
Aggravated Robbery and Use Corporal Violence	08/04/2010	07/02/2011	Imprisonment for 3 years and 10 months with a non-parole period of 18 months – release subject to supervision

1. Mr Munro’s last offences are of the most concern and prevent him from passing the character test.  The sentencing judge, Judge Payne, described the circumstances of the offences:

   The offending arose out of the one occasion but there were two separate victims. In short, these two relatively young men had completed their work at a factory in the Smithfield area and had gone to wait at a bus stop to catch what is called the T-Way bus. This bus is a bus that takes people in a designated bus lane from areas west of Parramatta back to Parramatta. The Court had the opportunity of viewing what was very clear closed-circuit television footage of the incident. The Court also had the opportunity of looking at the number of seconds during which this prisoner was assaulting the two victims.

   What had taken place is that the offenders got off on the other side of the road and indeed there were seven persons who had been at a party for the only Anglo Saxon member of the group. They all alighted from the bus. Those seven persons included the prisoner. The whole incident, it was agreed, lasted in the order of one and a half minutes. The prisoner was left alone with the two victims for thirty-one seconds and then a distinct period of some nine seconds.

   He was arrested in the early hours of the next day. He always accepted that he had engaged in the assaulting behaviour but denied any participation in the robbery. Each of these persons had their backpacks taken from them. Following a trial by judge alone, I found him guilty of each of the offences and have now convicted him in relation to each of them.

   This was late in the evening, the two victims having finished their shift at a local factory at 10 o’clock. The CCTV footage shows that the seven persons alighted the bus around 10pm. The Court also had the benefit of seeing photographs of the two victims take shortly after the assaults upon them. Neither of them in the course of this attack showed any resistance. Any actions that they did undertake were only in an attempt to protect themselves.

2. Judge Payne remarked that “the vulnerability in this case does not elevate this feature to one of aggravation but it is certainly a matter that in my mind makes the offending more serious.  Further, there was a high degree of corporal violence in this case.”  Judge Payne also noted the disinhibiting effect of alcohol on Mr Munro and its contribution to “the very poor decisions he made on this night.”

3. In the evidence he gave to the Tribunal, Mr Munro blamed his intoxication for his violent behaviour.  He described having been sent by the uncle with whom he then lived to collect his young cousins from a party and look after them.  He said that at the party he was invited by the hosts to drink with them and he consumed a case of beer and one quarter of a bottle of vodka.  He said he eventually left the party with his cousins, the youngest of whom was 14, went to the rose gardens at Parramatta and joined some others and drank about one half bottle of liqueur.

4. Mr Munro said he has no memory of what happened next and that all he knows is based on the flashbacks he had after watching the CCTV footage he was shown.  He recalled getting off the bus with his cousins and their friends and then assaulting the victims.  He maintains he did not know what he was doing.  He said the attack was begun by one of the others and he just joined in.  He agreed that he inflicted most of the violence and that, after everyone else had walked away, he attacked the victims again until one in his group came back and tried to drag him away.  He said the one who had returned for him then joined in the attack.

5. Mr Munro committed his first driving offence just nine months after he arrived in Australia.  Within three months of that first offence he offended again.  He said his father had warned him against driving unlicensed but he took no notice.  He said “it just happened” and agreed he didn’t think about his actions.  He said he generally drove when others had consumed too much alcohol.  He took no steps to obtain his driver’s license.

6. Mr Munro denies that he ever assaulted a police officer.  He said he was with some friends in a shed at a house in Fairfield, smoking marijuana.  He said he could see about eight police coming, flashing torches.  He said he went to the aid of a friend who, while the friend was quickly consuming the contents of a “bong”, the police had thrown to the ground and when he went to help his friend up, a policeman sprayed Mr Munro with pepper spray and grabbed him, placing his one hand behind his back.  Mr Munro said he went to wipe his eyes with his other hand and accidentally hit a policeman in his face.  He appeared to consider himself blameless.

7. Mr Munro also mentioned having been “caught” for unlicensed driving in New Zealand.  There is no record of this in the documents before me.

8. Mr Munro said jail was boring and he never wants to return.  He said he did a number of courses in jail, including a “Smart” course concerning alcohol and a course on managing emotions.  He also did a number of trade or work related courses. When I asked him what he learned from the Smart course, he said he learned that he should always stop at one or two drinks.  He initially said he plans never to drink again, but then said he would stop at one glass or one bottle.  When I asked him how he would know when to stop, he said it would give him flashbacks about jail and he doesn’t want to go back there.

9. Mr Munro provided a number of character references from family members and friends.  He also provided a reference from his former employer.  It described him as a good worker.

10. When I invited Mr Munro to comment about the risk of his reoffending, he said he has seen and heard of far worse crimes than his and those people have been allowed to stay in Australia.  He said he has never been violent before, having been brought up with sisters.  He blamed it all on the alcohol.  However, he was unable to explain why he had drunk on that occasion to such excess.

11. Dr Gary Banks, clinical psychologist, wrote a report dated 8 March 2012 after a four hour interview with Mr Munro and gave oral evidence to the Tribunal.  Dr Banks referred to actuarial data on risk of reoffending and considered, on the basis of that data alone, that there is a 10 to 30 per cent likelihood of Mr Munro reoffending.  However, Dr Banks also had regard to clinical factors specific to Mr Munro including impulsivity, absence or presence of provocation, absence or presence of insight, continuing attitude and responsiveness to treatment.

12. Dr Banks considered Mr Munro lacked insight into what he had done and its effect on others.  As to attitude, he said Mr Munro had followed others when the attack was begun even though he was in a position of responsibility.  He said Mr Munro is impulsive and referred to two other events: the arrest for resist police arising from the cannabis smoking episode and an altercation with his father to which the police were called.  He noted that the altercation revolved around Mr Munro’s financial contribution to the household.  I note that Mr Munro downplayed this in his evidence, but said it was the point at which he left his father’s house to live with an aunt and uncle one month prior to his serious offences.  As to responsiveness to treatment, Dr Banks noted that when he quizzed Mr Munro about what he had taken from the programs he did in jail, he had little to say.

13. On the basis of actuarial data combined with his consideration of clinical factors specific to Mr Munro, Dr Banks considered Mr Munro has a 60 per cent likelihood of reoffending.

14. Dr Banks also commented, in his report, on the support Mr Munro has from his father but noted that he had this support prior to offending and that that Mr Munro had reacted negatively to his father’s insistence on contribution to the household.  Dr Banks also noted that Mr Munro exhibited limited intellectual ability to learn and acquire knowledge and little motivation to change.  He considered that Mr Munro needs a highly structured, supervised environment.

15. The Probation and Parole Service Pre-Sentence Report dated 20 April 2011 noted Mr Munro’s view that he had been unjustly penalised in comparison with his co-offenders.  The report also commented on Mr Munro’s lack of insight into his offending behaviour and a propensity to act aggressively without provocation.  The report highlighted “Violence/Aggression” and “Associates” as areas of criminogenic need to be addressed in his case plan.

16. The Probation and Parole Service Pre Release Report dated 2 February 2012 noted that Mr Munro’s attitudes had changed little and that he still maintained that alcohol was a contributing factor, the offence was “out of character” and that he continued to dwell on the fact that he was the only one to be incarcerated.  The report noted a low to moderate risk of reoffending.

17. Mr Munro seems not to have come very far during the period of his incarceration.  His lack of insight, his historical impulsiveness, his insistence that alcohol alone was the reason for his violent crime, his lack of clarity as to how he will deal with alcohol in the future, his failure to take responsibility for his actions do not bode well for the future.  I am persuaded by Dr Banks’ opinion as to the likelihood of reoffending.  I consider there is a significant and unacceptable risk that he would reoffend if returned to the Australian community.  This factor weighs strongly against allowing him to remain in Australia.

    Length of Time Resident in Australia

18. I note that Mr Munro was present in Australia for just nine months before his first offence of driving without a licence.  Over the following three years his offences increased in seriousness until, just short of three years later, he committed his serious offences.  This is a short period. It weighs against the exercise of the discretion in his favour.

    International Obligations

19. Mr Munro has no child living in Australia.  Rather, his daughter lives in New Zealand.  Mr Munro said he wants to develop a relationship with his daughter. 

20. Mr Munro has a 14 year old sister who resides with her parents in Sydney.  During his first year in Australia it was his job to “look after” her.  I have no evidence of his relationship with her beyond this and can make no finding that Mr Munro’s deportation would have any more than a minimally negative impact on her interests.  I note the evidence of Mr Munro’s father that he and his partner are her primary carers and that she would be at liberty to telephone her brother in New Zealand were he to return there.

21. This factor weighs very minimally against cancellation of Mr Munro’s visa.

    OTHER CONSIDERATIONS

    Family Ties

22. Mr Munro described a childhood, after his parents separated, living mainly with his mother.  This lasted until his mother’s boyfriend stabbed him with a BBQ fork when he was somewhere between the ages of 9 to 14.  Mr Munro’s recollection was vague and he was unable to give consistent evidence about which parent he lived with at which time, but he was firm that after the incident with his mother’s boyfriend, he considered that she had taken the boyfriend’s side and he never lived with her again.  He said he then went to live more permanently with his father and later formed a relationship and moved in with his girlfriend.  According to Mr Munro’s evidence, after he had left his father’s home, his father left New Zealand to settle in Australia.   When Mr Munro arrived in Australia he lived with his father.  He left his father’s home about one month before his serious offences following a disagreement about money which Mr Munro characterised as his father asking him for too high a contribution to expenses.  He went to live with relatives of his mother.  Mr Munro did not offer details about the disagreement, but a Police Incident Report notes a loud argument between Mr Munro and his father on the front lawn outside their house in which the two appeared to be intoxicated and in which they grabbed hold of each other while arguing.

23. John Munro Senior’s evidence was that of a loving father but he was unable to provide much detail about his son’s life in New Zealand.  Contrary to his son’s evidence, he said his son lived with his mother in New Zealand on a permanent basis, seeing his father for a short stay every three or four months, up until the time his son moved in with his girlfriend.  Mr Munro Senior said that when he came to Australia in 2004 with his partner he did not really keep track of his son and spoke to him on the telephone just every month or so.  He also downplayed the argument he had with him to which the police were called and said it was about money he owed his son.  It was difficult to obtain a picture of their relationship and, in particular, the extent to which his father’s support and guidance would assist Mr Munro to avoid further trouble.  Mr Munro has one other child in his care, his daughter aged 14.  He said that if his son were to return to New Zealand he would not follow him and he was not sure whether he would go to New Zealand to visit him.  He agreed that his 14 year old daughter would be able to telephone her brother if he were to return to New Zealand.

24. Mr Munro Senior expressed concern that his former wife in New Zealand is “on the drinks all the time and the drugs”.  He said he has family in New Zealand but has not had much contact with them in the last two years. 

25. Mr Munro’s closest family ties (his father and his younger sister) are in Australia.  This weighs moderately against cancellation.

    Links to New Zealand

26. Mr Munro said he has not spoken to his mother in New Zealand for three years.  He has hopes of rebuilding his relationship with his mother and noted that his two older sisters live with her as well.  He said he has numerous cousins on both sides in New Zealand but insisted that he would not live with any family were he to return.  He insisted he would only be prepared to live with his father or live on his own, although he conceded that, practically, he would have the opportunity of living with any of his family in New Zealand.

27. It was difficult to obtain a clear picture of the events, but it seems Mr Munro’s and his girlfriend’s relationship deteriorated, either before or after she became pregnant, and his mother heard about his relationship problems and purchased a ticket to Australia for him.  Mr Munro has never met his child and has had no contact with the child’s mother since his conviction.  He said his girlfriend was about four or five months pregnant when he left.  His daughter is now four years old. He has seen photographs of her.  He has not provided any financial support for his daughter.

28. Mr Munro said he wants to forge a relationship with his daughter and considers he will be able to do this in New Zealand.

29. Mr Munro’s links to New Zealand are numerous.  He grew up there and previously found work there.  His daughter, mother, two sisters and many cousins are there.  This factor does not weigh against cancellation.

    Hardship

1. Mr Munro was clear that he did not want to return to New Zealand.  Although he stated a desire to develop a relationship with his daughter, he expressed little interest in his numerous other relatives.  He mentioned the gangs that are prevalent in some parts of New Zealand and noted the involvement of some of his relatives, but said he has never been involved in gangs and has never felt pressure to be involved in them.

2. Mr Munro’s father said he did not want his son to return to New Zealand.  While not very articulate, he showed clear emotion and concern and would no doubt suffer some emotional hardship if his son were returned to New Zealand.

3. Mr Munro said he had worked as a fruit picker in New Zealand before he came to Australia and noted “There’s heaps of jobs like that there”.  However, he said he prefers to do factory work and it is hard to get that work in New Zealand.  He conceded that now that he has done training courses of the kind he did in jail, for example a forklift operator’s course, he could do that work in New Zealand.

4. There is no doubt Mr Munro’s return to New Zealand would cause some emotional hardship to him and to his father, his father’s partner and younger sister in Australia.  However, his links to New Zealand remain strong and numerous.  He will have the support of the welfare system there, will have people with whom he can live and, on his own evidence, he will find work there.  I consider any hardship will be moderate and weighs only moderately against cancellation.

   Formal Advice in the Past

5. Mr Munro was not previously warned.  This weighs minimally against cancellation.

   BALANCE OF CONSIDERATIONS

6. The balance of considerations is in favour of cancellation given the likelihood of Mr Munro reoffending and the minimal to moderate weight of those factors against cancellation.  The interests of Mr Munro’s younger sister, his family ties to Australia and the moderate hardship he and others may suffer are not sufficient to displace the risk to the Australian community of Mr Munro’s likely reoffending.  Particularly given the violent nature of his crimes, this is an unacceptable risk to the Australian community.

   DECISION

7. The Tribunal affirms the decision under review.

45.       I certify that the preceding 44 (forty four) paragraphs are a true copy of the reasons for the decision herein of Senior Member N Bell.

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Associate

Dated 11 April 2012

Dates of hearing	22 and 23 March 2012
Applicant	In person
Solicitors for the Respondent	Cate Darcy