Kamal and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 563
•14 June 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 563
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2005/491
GENERAL ADMINISTRATIVE DIVISION ) Re IBRAHIM KAMAL Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr J Block, Deputy President Date14 June 2005
PlaceSydney
Decision The decision under review is set aside; the Tribunal substitutes a decision that the Applicant’s subclass 444 (Special Category) visa not be cancelled on the basis that he does not pass the character test under section 501 of the Migration Act 1958. [Sgd] Mr J Block
Deputy President
CATCHWORDS
IMMIGRATION – visa cancellation – consideration of facts – criminal history outlined – evidence of the Applicant – cross examination of the Applicant – evidence of Yousif Mohamed – evidence of Johnny King – Direction 21 – consideration of visa refusal and cancellation under section 501 of the Migration Act 1958 – decision under review set aside – Applicant’s visa not cancelled on character grounds pursuant to section 501 of the Act.
LEGISLATION
Migration Act 1958 ss. 500(6H), 501
Truong and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 100
Grant and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 3
SRIIII and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1208
REASONS FOR DECISION
14 June 2005 Mr J Block, Deputy President PART A – INTRODUCTION AND GENERAL
1. The decision under review is that made by a delegate of the Respondent on 8 March 2005 cancelling the subclass 444 (Special Category) visa which had been granted to the Applicant. That visa is a temporary visa permitting the holder to remain in Australia for so long as he is a citizen of New Zealand.
2. Ms A. Seward of counsel instructed by Ebsworth and Ebsworth appeared for the Applicant while Mr A Cox of Philips Fox, solicitors, appeared for the Respondent.
3. The Tribunal had before it the G Documents lodged pursuant to section 501G of the Migration Act 1958 (“the Act”) together with exhibits as follows:
Exhibit A1
Statement by the Applicant dated 12 May 2005.
Exhibit A2
Statement by Yousif Mohamed dated 12 May 2005.
Exhibit A3
Statement by Johnny King dated 12 May 2005.
Exhibit R1
Applicant’s criminal history dated 10 June 2004
Exhibit R2
Applicant’s criminal history dated 4 August 2004
4. Clauses 6 to 16 inclusive of the Respondent’s Statement of Facts and Contentions dated 18 May 2005 read as follows:
“Facts and Procedural History:
6. The applicant was born in Ethiopia on 10 June 1986.
7. The applicant and his aunt migrated to New Zealand arriving sometime in 1997.
8. The applicant arrived in Australia on 26 July 2000, and gained entry by way of a subclass 444 (Special Category) visa [G2].
9. On 28 May 2004, the applicant was convicted by the Melbourne County Court of robbery and false imprisonment and was sentenced to 14 months imprisonment. Those offences were committed in August 2003 when the applicant was aged 17. The sentencing judge noted that the Youth Training Centre "did not want the applicant back in their system" and the applicant was sent to an adult prison [G9].
10. The applicant also had a series of convictions dating back to 2002 including armed robbery, robbery, theft, possession of cannabis and intention to cause injury and assault. He has been detained in a Youth Training Centre on four occasions previously.
11. In a response to the Notice of Intention to cancel his visa the applicant provided the following details:
11.1 He was born in Ethiopia and when the civil war broke out his family were displaced. Believing that they were dead, he and his Aunt fled to New Zealand and subsequently gained refugee status. He now has New Zealand citizenship. He and his aunt moved to Australia and he no longer has any family in New Zealand.
11.2 He mixed with the wrong crowd in Australia and his criminal behaviour started. He said he participated in order to help his aunt with money.
11.3 He claimed now that he was in the adult prison system he was aware of where he wants his life to go, and he has taken part in drug and rehabilitation programs.
12. The delegate considered that the applicant did not pass the character test because of his "substantial criminal record;" see 501(6) (a) of the Act. A person is deemed under 501(7) to have a "substantial criminal record" if the person has been sentenced to a term of imprisonment of 12 months or more. As the applicant had received a 14 month prison sentence the delegate found that the applicant had a substantial criminal record.
13. The issue for the delegate was whether to exercise his discretion under s 501(2) to decide to cancel the applicant's visa. In so doing, the delegate had regard to Direction No 21.
14. In relation to protection of the Australian Community:
14.1 The delegate considered the mitigating factors advanced by the applicant, but in light of the serious nature of the applicant's convictions, concluded that the Australian public was entitled to protection from the applicant's conduct (para 5 to11). This consideration was given great weight.
14.2 The delegate considered that there was a considerable risk of recidivism. He reached this conclusion from reports that the applicant had been in prison on ten occasions, he had assaulted another prisoner and incited prisoners to assault weaker prisoners. The delegate did not consider that the anger management sessions had caused the applicant to feel remorse for his crimes nor had they prevented him from re-offending (para 12 to 18).
14.3 Moderate weight was placed on the fact that the cancellation of the applicant's visa may be a deterrent to others (para 19).
15. The delegate placed great weight on the expectations of the Australian Community and concluded that the applicant's offences were serious enough that the Australian community would expect that the applicant's visa would be cancelled (paras 20 to 22).
16. In relation to any secondary considerations, the delegate concluded:
16.1 A report from the Ecumenical Migration Centre stated that the applicant had an uncle in New Zealand and that previously the applicant had adjusted well to life in New Zealand and had picked up English quickly. The delegate considered that he would be able to receive the support of his uncle. The delegate also considered that he could receive similar government benefits to what he receives in Australia, and considered that the applicant would not suffer many language or cultural barriers (para 24 to 25).
16.2 The delegate conceded that the applicant's departure would cause great distress to his aunt (para 26). The delegate, however, relied on paragraph 2.17 of the Direction and stated that these other considerations were to be given less weight then the primary considerations.”
5. As a matter of balance I include clauses 5 to 12 of the Applicant’s submissions as follows:
“The Applicant’s circumstances
5. The Applicant is 18 years old.
6. The evidence shows that:
a.the Applicant is of Ethiopian origin but left that country when he was a very small child to live in a refugee camp in Kenya. He has little memory of the camp. His mother died when he was about three years old. His father left the camp when he was still very young and never returned. The Applicant has had no contact with his father since that time and does not know where he is.
b.The only relative known to the Applicant is his mother’s sister, Amina Muktar, who is 9 years older than him. Ms Muktar looked after the Applicant when she was a young girl in the refugee camp.
c.Ms Muktar describes life in the refugee camp as “horrible, like a nightmare. It was dangerous and we never had any money so we often went without food.” She says she doesn’t like to remember her time in the refugee camp because it makes her feel so upset: Muktar Statement 12 May 2005 at para 4.
d.In 1997 the Applicant was about 10 years old. Ms Muktar took him with her to New Zealand where she had been sponsored by her husband. The Applicant spent about 3 years living in New Zealand with Ms Muktar and her husband. Ms Muktar says that the Applicant was a very good boy to look after at that time: Muktar Statement 12 May 2005 at para 6.
e.Ms Muktar says that she and the Applicant left New Zealand on 26 July 2000 to get away from her husband, who was violent to her. At that time the Applicant was 14 years old.
f.The Applicant’s behavioural problems began in Australia. He stopped going to school, he fell in with a group of boys his own age who were involved in criminal activities. Ms Muktar (who, after all, is only 9 years older than the Applicant) was unable to influence his behaviour which, although ultimately criminal, was also the behaviour of an adolescent boy.
7. The Applicant’s criminal record as set out in the Statement of Facts shows convictions for a range of offences including robbery armed robbery and one count of intentionally causing serious injury carried out during a 2 year period between about August 2001 and August 2003. During this period the Applicant was aged 15 – 17 years old. There are no convictions for drug offences and no suggestion that the reason for the offences was related to any use of drugs by the Applicant. The Applicant’s evidence is that he got involved with a group of boys and acted with them out of a need to belong: Kamal Statement 12 May 2005 para 55.
8. The Applicant concedes that his criminal convictions and sentences of imprisonment means that he fails the character test set out in section 501(6) & (7). This is because he has received one sentence of imprisonment of 14 months (s 501(7)(c)) and the cumulative periods of imprisonment are more than 2 years (s 501(7)(d)).
9. The Tribunal therefore may exercise the discretion under section 501(2) to cancel the Applicant’s visa.
10. While the Tribunal’s discretion under section 501(2) is unfettered, it must have regard to Direction – Visa Refusal and Cancellation under section 501 - No 21 issued under section 499 of the Act and to other relevant considerations.
11. Direction No 21 at cl. 2.3 sets out three primary considerations for the Tribunal in making a decision to cancel a visa:
a.the protection of the Australian community, and members of the community;
b.the expectations of the Australian community; and
c.in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
12. The Applicant is 18 years old and has no children therefore only the first two primary considerations are relevant to this application.”
6. The Tribunal was furnished with a helpful chronology of relevant events prepared by reference to the G documents and reading as follows:
DATE
EVENT
REFERENCE
10 June 1986
Ibrahim KAMAL born in Ethiopia
Annexure G10, page 41
1989 – 1990
Ibrahim’s mother died.
Annexure G8, page 35.
1991
Ibrahim’s father leaves the camp and does not return. Ibrahim is about 5 years old.
Annexure G8, page 35.
2000
Ibrahim and his aunt move to Australia after the aunt’s husband becomes violent. They move in with a family in Victoria from the same village in Ethiopia. They are moved to transitional housing in Hawthorn in September 2000. Centrelink benefits are not payable until 2002. They live on a Family payment of $109 a week.
Annexure G8, page 35.
2001
Ibrahim leaves school (about 14 years old)
Annexure G8, page 35.
2002-2003
Ibrahim commits a series of criminal offences
Annexure G3, pages 15-21
Annexure G7, pages 31-33
28 May 2004
Ibrahim convicted of robbery and false imprisonment occurring in August 2003 and sentenced to 14 months imprisonment. Ibrahim is 17 years old.
Annexure G9, pages 38-40.
5 August 2004
Notice of intention to consider cancelling visa under subsection 501(2) issued by DIMIA.
Annexure G4, pages 22 to 23.
8 March 2005
Issues for consideration of possible cancellation of visa under s 501(2) sent to DIMIA delegate.
Annexure G1, pages 1 to 7.
8 March 2005
Delegate’s Decision on cancellation under s 501(2).
Annexure G4, pages 10 to 13.
15 March 2005
Notice of cancellation of visa issued.
Letter from Carlos Bagnato, Character and Cancellation Section, Department of Immigration and Multicultural and Indigenous Affairs, dated 15 March 2005.
21 March 2005
Application to AAT for review.
Application for Review of Decision, dated 21 March 2005.
7. The Applicant’s criminal history (as it appears as document G3 in the G Documents) is, subject to clause 8 below, of particular relevance; it is included in these reasons in full as follows:
Court
Date
Charge
Result
Melbourne Magistrates
05/11/04
Intentionally damage property
Without conviction, Adjourned to 01/03/2005, Pay compensation $50.00
Melbourne County
28/05/04
Robbery
False Imprisonment (Common Law)
14 months.
4 months concurrent. Total 14 months. (Declare a period of 116 days have already been served by way of pre-sentence detention.)
Melbourne Childrens
20/10/03
Litter on PTC vee/prem
Without conviction, fined $100.00 with $35.00 statutory costs.
Melbourne Childrens
11/08/03
Cross railway lines where not provided
Without conviction, fined $100.00.
Melbourne Childrens
14/07/03
Fail produce evidence of concession - PTC
Without conviction, fined $100.00.
Melbourne Childrens
11/03/03
Robbery
Assault in company
Obtain property by deception
ON EACH CHARGE:
The defendant is convicted and ordered to be detained in a Youth Training Centre for a period of 4 months.
Melbourne Childrens
18/02/03
Robbery
Unlawful assault
The defendant is convicted and ordered to be detained in a Youth Training Centre for a period of 4 months.
The defendant is convicted and ordered to be detained in a Youth Training Centre for a period of 2 months.
Melbourne Childrens
16/01/03
Theft of a motor vehicle
Robbery
Theft
Criminal damage (intent damage/destroy)
ON EACH CHARGE:
The defendant is convicted and ordered to be detained in a Youth Training Centre for a period of 8 months.
Melbourne Childrens
16/01/03
Breach of Youth Supervision Order
re 30/07/02
Intentionally cause serious injury
Theft of a motor vehicle
Att. commit an indictable offence
Wilfully damage property
Proven.
ON EACH CHARGE:
The defendant is convicted and ordered to be detained in a Youth Training Centre for a period of 7 months.
Melbourne Childrens
30/07/02
Att. commit an indictable offence
Intentionally cause serious injury
Wilfully damage property
Theft of a motor vehicle
Without conviction, the defendant is released on a Youth Supervision Order for a period of 12 months to 29/07/2003.
The defendant is to report to Eastern Metro - Juvenile Justice Unit at 663 Whitehorse Road Box Hill 3128 on 15/06/2002 at 10:00 AM.
All core Youth Supervision Order conditions apply.
Without conviction, the defendant is released on a Youth Supervision Order for a period of 12 months to 29/7/2003.
The defendant is to report to Eastern Metro - Juvenile Justice Unit at 663 Whitehorse Road Box Hill 3128 on 15/06/2002 at 10:00 AM.
All core Youth Supervision Order conditions apply.
Melbourne Childrens
18/04/2002
Recklessly cause injury
Fail to answer bail
Theft
Att. commit an indictable offence
Intentionally cause injury
Robbery
Fail to answer bail
Robbery
Enter/leave premises improper place
re 20/02/02
Armed robbery
Possess cannabis
Poss … graffiti implement intent mark
ON EACH CHARGE:
The defendant is convicted and ordered to be detained in a Youth Training Centre for a period of 4 months.
ON EACH CHARGE:
The defendant is convicted and ordered to be detained in a Youth Training Centre for a period of 3 months
The defendant is convicted and ordered to be detained in a Youth Training Centre for a period of 1 month.
The defendant is convicted and ordered to be detained in a Youth Training Centre for a period of 4 months. Cumulative order upon base period of detention and upon other cumulative and part concurrent periods of detention imposed in this case.
Order that the respondent KAMAL, Abraham be directed to undergo a forensic procedure for the taking of an intimate sample from any part of his body pursuant to the provisions of Section 464ZF of the Crimes Act 1958 (as amended).
Pursuant to Section 464ZF(9)(a) of the Crimes Act 1958 (as amended) a copy of this order and reasons are to be served on the respondent.
Pursuant to Section 464ZF(9)(b) of the Crimes Act 1958 (as amended), the respondent is informed that a member of the police force may use reasonable force to enable the procedure to be conducted.
The sample is to be a swab of saliva to be taken from the deft’s mouth.
- Reason:
The seriousness of the circumstances of the offending, warrant this order. The order is not opposed. The granting of the order is in the public interest. The benefit of having the sample for detection of further crime.
Proved and dismissed.
The defendant is convicted and ordered to be detained in a Youth Training Centre for a period of 4 months. Base sentence.
Proved and dismissed.
Melbourne Childrens
20/02/02
Armed robbery
Poss … graffiti implement intent mark
Possess cannabis
ON EACH CHARGE:
Forfeiture order made by consent. Order all property/s seized be forfeited and destroyed. Forfeiture order made by consent. Order all Drugs/Instruments seized be forfeited and destroyed.
8. The criminal history set out in the preceding clause is taken from a statement dated 8 April 2005. The decision maker’s reasons decision (G page 10 to G page 11) are contained in a document dated 11 March 2005. It follows that that decision could not have been made by reference to a criminal history bearing a later date. This matter was listed for hearing on 19 May 2005 (“first hearing day”) and 20 May 2005 (“second hearing day”). At the end of the first hearing day the cross-examination of the Applicant was not complete. In consequence of an administrative misunderstanding the Applicant was not brought to the Tribunal on the second hearing day. It was thus necessary to interpose other evidence; it was also necessary to schedule a further hearing day, and being 8 June 2005 (“final hearing day”) in order to complete the Applicant’s evidence and to hear submissions. On the second hearing day Ms. Seward drew attention to the discrepancy in the G documents concerning the decision and the relevant criminal history. Mr. Cox promised to investigate the matter and did so; on the final hearing day he tendered exhibits R1 and R2. A comparison of those exhibits with the criminal history in the G documents does not indicate any difference of a significant nature. On any basis, the Applicant’s criminal history indicates a substantial number of crimes, in some cases falling into the very serious category, and moreover occurring during a comparatively short period of time.
9. It is convenient also to include in this Part A the sentencing remarks of His Honour Judge Ross made on 28 May 2004 when he imposed two concurrent terms of imprisonment, one of 14 months and the other of 4 months for one count of robbery and one count of false imprisonment (respectively). Those remarks appear at G pages 39 , 40 and 40A; they read as follows:
“HIS HONOUR:
1. Abraham Kamal, you have pleaded guilty to one count of false imprisonment and one count of robbery and your record indicates that you have had a number of court appearances in the Children’s Court. Unfortunately, amongst those convictions, as I count it, there is one count of armed robbery, five counts of robbery on 18 April 2002, causing serious injury intentionally on 30 July 2002, three more robbery charges in January 2003, another robbery on 13 February 2003, another robbery in March 2003 and these particular events occur in August 2003.
2. Your counsel has properly raised the issue of your plea of guilty; That entitles you to a discount on sentence and also the fact that you have cooperated with the police, both in relation to your interview and in relation to providing information regarding a co-offender. I assume, but for that information, the co-offender would not have been apprehended. They are matters that I have got to take into account.
3. The unfortunate circumstance is that you are a young man who has been denied the support of parents, who has had to come from your own culture through New Zealand to this country and apparently are unwilling to avail yourself of support services that might be available to you and that may well be a reason for the fact that you have been before courts on these numerous occasions.
4. The other factor which I am bound to take into account is your relative youth. You are about to turn 18, and the law requires that, notwithstanding the serious criminal background that you have, the issue of rehabilitation cannot be ignored; indeed, it must play a considerable part in the sentencing process. Although in your case it would seem clear that your past appearances, the unfortunate life dilemma that you have had to endure has been placed before courts previously and has been the reason why leniency has been extended to you.
5. I have been informed by your counsel that, upon committing this offence whilst you were on parole, you were breached and you were reclaimed for the period of time that you were on parole to the Youth Parole Board. Upon that occurring, you were denied bail for these offences and have been in the adult prison system and your counsel tells me it is a pointless exercise, for me to seek a report from the youth training centre people, because they do not want you in their system.
6. That being the case, I am left with no alternative but to impose a term of imprisonment. I am bound to temper that term for the matters that your counsel raised in mitigation and which I have mentioned and I also acknowledge the fact that two co-offenders, who were without prior conviction, were given non-custodial sentences and principles of parity require that I do my best to impose a sentence that does not cause you a genuine feeling of resentment at being unfairly treated by the courts. But, doing the best I can, I have decided on the following sentence.
7. On the charge of false imprisonment, you are sentenced to four months’ imprisonment. On the count of robbery, you are sentenced to 14 months’ imprisonment.
8. I declare that you have spent 116 days in pre-sentence detention and that that period be reckoned as time served under this sentence and, applying the principles of parsimony in sentencing, I think that is the only minimum that I could set, having regard to the need in your case for some consideration of protection of the community.
9. MR LONG: Your Honour, is that concurrent?
10. HIS HONOUR: Yes, I indicate I have made no order for cumulation. It is only cumulative if I make an order for cumulation.
11. MR LONG: Thank you.
12. His Honour: So the sentence is 14 months with that 116 days presentence detention.
13. You may remove the prisoner.”
PART B – THE EVIDENCE OF THE APPLICANT; AN OVERVIEW
10. The Applicant gave evidence at considerable length on the first hearing day and to a lesser extent on the final hearing day. He was, according to Ms Seward, nervous. I found it at times difficult to understand him because of the manner in which he spoke, but this area of difficulty was overcome with the assistance of Ms Seward and her instructing solicitor, who found it easier to understand him. As will be noted, the Applicant’s evidence was at times untruthful, and in some instances seriously so.
11. There is an abiding mystery about the Applicant’s behaviour and in respect of which there was never any explanation by him. When the Applicant was 10 years old he and his Aunt, Amina Muktar (“the Aunt”) made their way from Ethiopia to New Zealand, and after a lengthy period in a refugee camp. In New Zealand and notwithstanding the fact that his Aunt’s husband was violent and abusive, the Applicant lived an apparently normal life. He went to school and achieved, so he said, average results. After his Aunt parted from her husband, and in 2000, the Applicant and his Aunt moved to Australia. In Australia and despite the fact that there was no longer an abusive husband in his life, the Applicant’s behaviour was extremely bad; he dropped out of school and left his Aunt’s home comparatively soon after coming to Australia. As to why his behaviour in New Zealand was good but so bad in Australia was never, in his evidence, explained by him.
12. Because this is an expedited visa case this decision must be issued by no later than 13 June 2005. Because 12 June 2005 is a public holiday the effect is that I have 2 working days only within which to prepare this decision and have it typed and edited. I do not have sufficient time to obtain and consider a transcript. I was able to take comprehensive notes of the evidence of the Applicant, and intend to make use of those notes for the purpose of this decision. Mr. Mahomed gave evidence by telephone link to Melbourne and his evidence was taken at a speed which prevented proper note-taking. This was even more the case with Mr King who although he gave oral evidence in Sydney spoke at such speed and (more particularly) at such length that note-taking was not practicably possible. I intend in respect of each of Mr Mahomed and Mr King to use their witness statements in order to indicate the nature of their evidence. (I should note that the parties were not altogether in agreement as to the date by which this decision must be issued; Ms Seward thought that it is 13 June while Mr. Cox calculated that it is 14 June 2005; having regard to the consequences of not issuing this decision in time, the prudent course is to issue it on the earlier of those two dates).
PART C – THE EVIDENCE OF THE APPLICANT; EVIDENCE IN CHIEF
13. The Applicant commenced by confirming that exhibit A1 (his statement) is true and correct. The Applicant confirmed that exhibit A1 does not contain any expression of remorse for the victims of his crimes. However he said, although with some considerable degree of prompting by his counsel, that he had told Johnny King that he was sorry about the victims. He said “I was young – I did the wrong thing”.
14. The Applicant first arrived in Wellington New Zealand when he was 10. He attended Newtown Primary School where he learned to speak English. He then went on to South Wellington Intermediate School for 2 years; thereafter he attended a college in New Zealand but only for 6 months because he and his Aunt came to Australia. She thought that Australia offered a better life.
15. In July 2000 the Applicant started school in Melbourne. He passed year 7 at Hawthorne Secondary College; however and halfway through the next year “things started to go wrong” and he dropped out of that school. He was sent to Richmond Community School and dropped out of that school after about two months.
16. The Applicant said that he started “hanging around” with friends; he said “it was like a club”. There were about 20 of them and they moved into crime. In particular they were “doing robberies”.
17. His Aunt was receiving assistance from Centrelink; he was unsure of the amount of those benefits and gave different evidence as to the amounts involved (G page 35 indicates that the Aunt was receiving $218 per fortnight). He did not get on with his Aunt, so he said, because she wouldn’t give him money.
18. He left his Aunt’s home and “I stayed with friends – some of them didn’t live with parents”. His evidence on this topic was confused; it is not possible to state with any conviction where he lived from then on. It seems likely that there were times when he again stayed with his Aunt but not apparently for very long.
19. The Applicant said that with his group of friends in Prahran, a suburb of Melbourne, “I continued getting into trouble”. The group made a practice of committing robberies often in railway stations where selected persons were robbed and in particular of their mobile phones. Those phones were sold for “I don’t know – probably $50”.
20. The group leader was a Serbian called Sunion; some of the other members of the group were Australian and some had other places of origin; (he referred in particular to Greek members). Robberies involved not only phones but also money. Victims were threatened (sometimes with a bat) and money was demanded. Two hundred dollars was mentioned as an amount often obtained.
21. Ms Seward asked him whether when he was with the group he thought about the victims. He said “I didn’t really care”. After being sent to a detention centre he was released on parole and subject to conditions (which he almost immediately breached). He described in some detail the robbery of Andrew, who was a year 12 school student. In September 2002 and after seeing his parole officer, he received a phone call (on a phone provided by the Department of Human Services) from someone named Jackwho said “there’s a guy we are going to rob – the school guy”. Andrew was apparently in possession of a large sum of cash to be used for a “Year 12 After Party”. He said that “we got him at the station – the Turack line”. He agreed that he knew that he was then on parole; however he believed that the crime was risk free because “the victim can’t complain to the police”. But the victim did complain and that resulted in the sentence referred to previously in these reasons. That sentence of 14 months arose in part because of his bad previous record.
22. At that stage and despite his youth the Applicant was sent to an adult prison. He was first at Fulham Correctional Centre and then sent to Barwon in Geelong. He said that it was not “a good environment – I saw stabbings and fighting”. He did not get on with the guards who were never friendly and sometimes made remarks about his skin colour.
23. The Applicant’s record in gaol includes a reference to an assault. The Applicant denied that there was an assault. He said that he lent tobacco to another inmate (of Fulham) on the basis that he would receive repayment on the next canteen day. He said “he ignored me – I said I want it back by tonight. He went to the prison guard and I got stripped out”.
24. G page 30 records that the Applicant took some courses in prison including one in anger management. The Applicant said that he had played rugby in New Zealand and liked it. He said also that he was very interested in horticulture, an interest he developed in a Youth Detention Centre.
25. The Applicant was asked how he would manage in New Zealand if the decision were affirmed. He said “I wouldn’t know what to do in New Zealand”.
26. While in Barwon the Applicant met Johnny King; this occurred about 2 weeks prior to his release. It seems clear that Mr King has come to be something of a father figure in relation to the Applicant. He first met Mr King at a time when he was not, so he said, faced with the possibility of deportation back to New Zealand.
27. The Applicant’s evidence in relation to his Aunt was decidedly odd. He said that he could live with her, that she had remarried and that she was working in Essendon. But he also said that she did not visit him in gaol “because I lost contact – she moved in Ascot Vale and I didn’t know that”. Among the documents submitted to the Tribunal by the Applicant’s legal advisers is a statement by the Aunt. It is couched in a tone which is decidedly cool and indicates that, understandably enough, she would be prepared to have him back with her but conditionally on good behaviour by him. The Aunt (again understandably) was not called as a witness.
28. The Applicant said that before his visa was cancelled he received an offer of a place at Prahran, to be taken on his release. He refused that place because Prahran is the area in which he is likely to come into contact with his old associates.
29. The Applicant received a letter from the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”) indicating the possibility of cancellation of his visa, in August 2004; that letter dated 5 August 2004 appears at G pages 22 and 23. It was answered by Patricia Trezise (G pages 24 and 25) by letter dated 2 November 2004 and to which was attached a letter by the Applicant (G pages 26 and 27). The third paragraph of the Applicant’s letter at G pages 26 and 27 reads as follows:
“Once in Australia I fell in with the wrong crowd and thus started commiting [sic] crimes in which I used the money to help my Aunty with living costs as I was doing this my Aunty thought I was employed at a McDonalds in the city but later found out I was involved with crime. I was to spend time in a young offenders instatution [sic] and found the environment non deterent [sic] toward my offending behaviour and at that stage I never had an opportunity to address this behaviour.”
30. It may be noted that the letter by Ms Trezise calls (in somewhat emotive terms) for a decision which does not involve the deportation of the Applicant. It may be wondered whether that letter would have been couched in quite the same way if Ms Trezise had known that it contained at least one seriously untruthful statement. The Applicant’s own letter was, so the Tribunal was told, in fact written by another inmate but dictated by the Applicant. The fact that, oddly enough, that letter was signed “Abdul” was never raised at the hearing.
31. The Applicant said that he intends if allowed to stay in Australia to take up a place in a program (“Bridging the Gap”) run by the Brosnan Centre in Brunswick. That Centre is managed by the Jesuits although it receives funding from other (and including government) sources,.
32. The Applicant’s record does include some involvement with drugs. He said that he has smoked cannabis in prison but he has never had any involvement with more serious drugs. The Applicant said that, in respect of the robberies he did not carry a bat, but he did pretend to one of the victims that he had a knife in his pocket.
33. The Applicant gave evidence at some length as to Mr King. He said that he told Mr King that he was sorry about the victims. He said that he realised while he was in gaol, and after consideration of what he had done that he should feel sorry, for the victims..
34. Some evidence which followed cannot be considered by the Tribunal having regard to section 500(6H) of the Act.
PART D – THE EVIDENCE OF THE APPLICANT; CROSS-EXAMINATION ON THE FIRST HEARING DAY
35. The Applicant said that he last saw his Aunt 16 months ago. When it was put to him that he said that he left her home in September 2001 he said “I left there but I was still living there on and off – when I needed a place to sleep I went back”.
36. The Applicant said that his criminal activity started before September 2001 and before he left his Aunt’s home. He agreed that he ignored her request to stop his criminal activities. He said that he stopped going to school a few months before he left her home. He was asked whether it was easy to steal from school children. He answered “it wasn’t easy – they were in year 12 – older than me”. He admitted after some pressure that there were younger victims, including a 14 year old. The following exchanges are taken from my notes:
“How young was the youngest of your victims?
Can’t remember.Can you guess?
15 or 16.You did commit an offence against a 14 year old?
How old was I?
I can’t remember.The offence took place at the North Brighton Railway Station on 25 September 2002; you and two other people approached a 14 year old.
I didn’t know he was 14 – he wasn’t wearing school uniform.You demanded cannabis from him?
Yes.You and the other two people forcibly led him to a location nearby?
No.You took his wallet and his phone?
Yes.You tried to take his jumper off him?
No.Did you try to take any item of clothing from him?
No.You assaulted him?
No.Did either of the other two hit him?
Yes, in the face.They hit him while they were trying to take his wallet and his phone?
They wouldn’t hit him after they had got it.Do you recall the robbery at Westall Railway Station?
Yes.Do you recall that you robbed and assaulted a 17 year old male?
Yes.He was a school student?
Year 12.Was he wearing a school uniform at the time?
Yes.Isn’t it true that you pretended that you had a knife or gun?
Yes.You wanted to frighten him that way?
Yes.You threatened to kill him?
We threatened to take away his money from him – not to kill him.Didn’t that victim tell the police that you threatened to kill him?
Yes.He was extremely frightened?
Yes.You didn’t feel any pity for him?
No. Nothing I could do – there were four of us involved.And when you say that there was nothing you could do, you were deliberately frightening him?
I knew someone took his money – there were four of us, so there was nothing I could do.You admitted you frightened him?
Yes, but after I was doing this, someone else took his money off him.You shared the money?
One of the others took and kept the phone.”
37. The Applicant said that the money obtained from robberies was spent on “just partying and all that stuff”. He agreed that he did not ever give any money to his Aunt and his statement to this effect (G pages 26 and 27) was false. The Applicant agreed that he wrote that letter in an attempt to stay in Australia. When asked whether there were any other untrue statements in his evidence he admitted, but only after some pressure, that in respect of the alleged assault on another prisoner he did receive a hearing (see G page 29 and also clause 21 of exhibit A1). In fact a disciplinary hearing took place in June 2004. He did in other words have an opportunity to defend himself.
38. In further cross-examination (and where the Applicant frequently gave “I don’t remember” answers) he eventually admitted that phones which were obtained from victims were not kept by one of the group or sold for $50 but were in fact sold to a professional receiver of stolen property or in other words a “fence” He admitted to there being a fence who acted as such to the group but when it was put to him that the activity was organised he said “not really”. Further, he said (incredibly) that when a victim was robbed of a phone “we always gave him back the SIM card”.
39. The Applicant’s evidence was not complete at the end of the first hearing day. However, on the second hearing day and as indicated previously, and in consequence of an administrative misunderstanding, he was not brought to the hearing (which was held in the Family Court) and accordingly other evidence was interposed.
PART E – THE EVIDENCE OF YOUSIF MOHAMED
40. Exhibit A2 reads as follows:
“Occupation
1. I am a Juvenile Justice Mentoring Program Worker for the Victorian Co-operative on Children’s Services for Ethnic Groups (VICSEG).
VICSEG
2. This co-operative is funded by the Victorian government. VICSEG provides information and assistance to migrant and refugee families in Victoria.
My experience
3. I have been a Juvenile Justice Mentoring Program Worker for VICSEG since 2002. Prior to that I was a program assistant with North Melbourne Community Centre at Moonee Valley between 1998 to 2002, providing support and assistance to young people at risk in the area. This involved dealing with truancy and difficulties experienced by young people at school and with the police.
4. As I am from Eritrea, I have been asked by VICSEG to deal with children who have experienced difficulties as a result of being refugees from African countries. In the past year I have mentored about 8 young people at risk in the juvenile justice system.
Dealings with Ibrahim Kamal
5. I have been Ibrahim Kamal’s mentor since 2002 as part of VICSEG. Ibrahim has been mentored by VICSEG since shortly after arriving in Australia in 2000.
6. My mentoring of Ibrahim has involved visiting him on a regular basis at Parkville Youth Residential Centre in Victoria in 2002 – 2003. I also visited him at Port Phillip remand centre in Victoria in 2004.
7. While he has been in custody or in prison I have provided him with things such as money, phone cards and clothing. When he has not been in custody or detention I have assisted him with such things as housing. I have also provided some religious and cultural support.
8. My role has been to offer him guidance and advice on what he can do or should do and how to reach goals he identifies. I have also tried to be a role model to him.
9. I have been in regular telephone contact with Ibrahim over all this time. While he has been at Villawood IDC I have spoken to him every week, and sometimes 2 – 3 times a week. Usually he calls me to talk about how he feels, what he has been doing and what he wants to do.
My observations of Ibrahim Kamal
10. I think that Ibrahim’s attitude to his life has changed for the better since he was in prison and in Villawood IDC. Ibrahim has told me that he does not want to do anything that would mean returning to prison. He has said to me that prison was very hard and he was scared by what he saw there.
11. More recently he has also expressed his appreciation to me for the things that I have done for him.
12. I am aware that Ibrahim attended an anger management course at prison. However, I have not been the subject of anger from Ibrahim, nor have I observed him to be angry in the three years in which I have been Ibrahim’s mentor. I have observed that Ibrahim gets frustrated at times due to his limited reading and writing skills. I understand that he is receiving some training in these areas whilst he is at Villawood IDC.
13. Ibrahim has been isolated in Australia because of his lack of family and community ties. I think this has left him vulnerable to adverse influences from other young men in his area. However, I do not think he is a “hardened” criminal as I have seen him talk to, and relate to, people well. I think that he wants to change his life so that he does not get into trouble any more.
Assistance that can be provided by VICSEG
14. VICSEG can assist with his accommodation needs in Victoria if he is released from detention. I can assist in re-establishing his contact with his aunt and finding training for him so that he can get work, as well as involvement in community activities. I also have contacts in the African community if Ibrahim wants to explore that part of his identity.
15. Personally I am also involved in coaching soccer teams in Melbourne, such as for Somalian and Eritrean youth, as well as Greek youth in Yarraville. I know that Ibrahim is keen on sports and I would be wiling to invite him along to the training sessions that I conduct and have him join in the games in order to have some positive interaction.
16. Over the years we have built a relationship of trust and I believe that he listens to me. While Ibrahim is technically no longer part of the juvenile justice system, I will continue to respond to requests he may make for assistance by, for example, referring him to other services. I know that he does not read and write well, and I can arrange for him to get assistance with these skills through TAFE courses.”
41.Mr Mohamed gave his evidence by telephone. As noted by Mr Cox, Mr Mohamed does not have any real qualifications in the relevant area and his evidence must be treated with some caution.
42. Mr Mohamed does consider that the Applicant is not likely to re-offend and indicated in clear terms that he “hopes” that this will prove to be the case. His offer of help (and particularly in soccer training) appeared to me to be genuine. Put in summary form, Mr Mohamed although under-qualified, is well intentioned and I believe that his offer of support is genuine. At the same time it must be remembered that Mr Mahomed became the Applicant’s mentor in 2002, and that it did not have any particular beneficial effect and especially having regard to the Applicant’s criminal behaviour after Mr Mahomed became his mentor.
PART F – THE EVIDENCE OF JOHNNY KING
43. Mr King’s statement, exhibit A3, is very lengthy consisting as it does of extensive annexures mainly related to the Brosnan Centre and its various activities. However, and for reasons set out previously, I include his statement proper (clauses 1 to 39) as follows:
“Occupation
1. I am a post-release youth case worker with the Brosnan Centre in Victoria.
The Brosnan Centre
2. The Brosnan Centre is run by Jesuit Social Services (JSS). The Centre focuses on providing personal assistance to young people between the ages of 17 to 25 years who have had or may have difficulties reintegrating into the community after their prison or juvenile justice sentences have been completed under its post-release support program. “Bridging the Gap” is one such program funded by Corrections Victoria. Annexure 1 to my statement contains a description of the Brosnan Centre’s activities.
3. The support offered by the Brosnan Centre includes:
(a)finding accommodation;
(b)rebuilding relationships with families and the community;
(c)finding employment and/or obtaining training;
(d)addressing any substance abuse; and
(e)intensive case work support.
4. Intensive case work support means being available to the persons to whom I have been assigned to speak to them and to react and anticipate any crises that may occur on their release from imprisonment.
5. The Brosnan Centre has been operating since 1977. It provides services to over 100 young persons who have spent time in the Victorian justice system. The Centre’s youth workers regularly visit juvenile justice centres and prisons throughout Victoria to meet with young people who may be at risk of re-offending after their release. The Centre gives priority to young people with minimal or no support in the community, such as those with long periods of residence in institutions, and/or with dysfunctional family backgrounds.
Experience and qualifications
6. I have been a youth worker since 2001.
7. Between 2001 to 2004 I was employed by the Salvation Army to work with adolescents in its “Westcare” program. This program is a major provider of placement and support services for children and young people in the western region of Melbourne.
8. Since the beginning of 2005 I have been involved in supporting young persons in the prison system to re-integrate into the community as a case worker with the Brosnan Centre.
9. I estimate that I have supported over 40 young people since 2001.
10. I have an Honours degree in Government & Public Policy, majoring in political science, from the Newcastle-Upon-Tyne Polytechnic in England that I obtained in 1988.
11. Prior to my arrival in Australia I spent four years working as a law clerk with the Crown Prosecution Service in England at Southwark Crown Courts in London and as an executive officer with the Supreme Courts in Edinburgh. I also spent two years working in the legal department of the International Defence & Aid Fund in South Africa between 1989 to 1991. The Fund was a non-government not-for-profit organisation that funded the investigation and resolution of human rights issues in South Africa.
Dealings with Ibrahim Kamal
12. I have known Ibrahim Kamal since February 2005 when I started to visit him at Barwon Prison in Victoria. I know him as Abraham Kamal.
13. I started to visit him as a result of information the Brosnan Centre received from Corrections Victoria that he was between the ages of 17 – 25 years and due to be released in the next couple of months.
14. I have supported Abraham by visiting him frequently at Barwon Prison and Port Phillip remand centre. I have spoken to him on almost a daily basis while he has been detained at Villawood Immigration Detention Centre (VIDC) since 2 April 2005. We speak for about 15 to 40 minutes at a time. I also travelled to Sydney and visited him at Villawood on 21st April 2005.
15. The telephone contact I have had with Abraham has been mostly initiated by Abraham. In the early stages of Abraham’s detention at Villawood he would call me as much as 3-4 times a day.
Report from Fulham Correctional Centre, Victoria, dated 18 August 2004
16. I have read the report prepared by Fulham Correction Centre dated 18 August 2004 in relation to Abraham at pages 29 – 30 of the G documents and observed the following adverse issues were raised about Abraham:
(a)he was unmotivated;
(b)he constantly required supervision;
(c)he had no interest in educational programs;
(d)he incited other prisoners to assault weaker prisoners;
(e)he had little respect for prison staff;
(f)he expressed no remorse for his crimes;
(g)he had no inclination to address his offending behaviour;
(h)he was likely to continue to do as he pleased regardless of the consequences to him and others; and
(i)he had anger control issues.
17. It has been my experience in working with young people of his age in custodial or institutional environments that a lack of expressed motivation, incitement of violence and lack of respect and remorse are behaviours commonly acquired to survive those environments. It has been my experience that to express motivation to move beyond that environment, or to show respect or remorse, would be regarded as showing vulnerability and would result in other inmates targeting that vulnerability.
18. However, it was my observation in Abraham’s dealings with prison staff that he was sullen rather than lacking in respect. I have never seen him acting aggressively towards anyone.
19. It has been my experience in dealing with Abraham since February 2005 that he has become much more motivated to do more with his life and that he does not want to return to his old life style.
My observations of Abraham Kamal
20. In the early stages of my dealings with Abraham, he was reluctant to talk to me about anything in any depth. His body language was “closed” to me, in that he would avoid eye contact, look to the floor, and he did not express great interest in the support offered him by the Brosnan Centre. From my more recent dealings with Abraham I can say that he seems to have matured and developed a much greater understanding into his offending history. Consequently, he seems very motivated to make positive changes in his life and is willing to talk about how to do this.
21. As my visits to him continued I observed that he relaxed and became more engaged in the plans I had to support his release. He spoke about his background and expressed regret that he had lost contact with his Aunt during his imprisonment. He asked me to try to contact his Aunt Amina and Yousif Mohamed, an African support worker with whom he had enjoyed dealing with in the past in the Victorian Co-operative on Children’s Services for Ethnic Groups (VICSEG). I contacted Amina and Yousif, and I understand that they have been in contact with Abraham since that time.
22. I have observed that his disposition has become more hopeful over time and he has expressed enthusiasm and demonstrated an increased ‘ownership’ of our developing post release plan.
23. In particular I have witnessed a significant positive shift in his demeanour and his understanding of his situation in the time since Abraham was served a notice of deportation and was subsequently moved to Villawood Immigration Detention Centre.
24. Abraham has expressed a strong sense of empathy with people he has encountered in the prison system and in detention in what he calls ‘worse positions’ than his own. In our more recent conversation he talks specifically to me about other detainees’ problems before his own. He has expressed enthusiasm for visiting detainees in similar situations to his own should his appeal be successful and he is permitted to stay in Australia.
25. Abraham has expressed what I believe to be genuine gratitude for the support he has obtained from me and other people involved in his case. I believe that he is developing a much more positive view of himself as the result of the support he has received, and consequently he is able to see how he could make a positive contribution to the community himself.
26. The day after my recent visit to him in Sydney in April 2005 he called me just to say thank you and to talk about how much he appreciated the visit and our support. He did not ask for anything from me in that call.
27. Based on my experience, it is significant to me that he is now motivated to help others and not just himself. I think this is proof that he is able to make a positive contribution to the lives of these others.
28. He has accepted the offer of visits from a teacher whilst at Villawood IDC in order to improve his literacy skills. He also sought the assistance of a psychologist at Villawood IDC to deal with his feelings of depression and isolation and he has told me that he would like to continue getting that assistance.
29. I have observed that his dealings with staff at Villawood IDC have been respectful and appropriate. He has told me that he recognises their job is a difficult one and he appears to me to be making an effort to get to know the staff on an individual and human level.
30. Consequently, I believe that Abraham is “turning a corner” in his life. I believe that he is a very bright young man who has had a difficult start in life and who is now ready to “pay back” his community.
31. Abraham has expressed to me his desire to stay in Australia to be able to continue seeing his aunt, who is the only family he has known since he was five years old, and to obtain continuing support from Yousif and me.
32. Abraham has also told me that he does not want to go back to his old life. When I was arranging accommodation for him post-release before the decision was made to cancel his visa, I talked to Abraham about some transitional housing I had located in Prahran. Abraham told me that he would prefer not to go to Prahran because he did not want to meet the people he used to hang around with and get into trouble again.
33. I am able to say that the behaviour I have observed in Abraham (and that alleged by Fulham Correctional Centre in its report when he was placed in the prison system) would also seem consistent as being a result of the many years he spent in the refugee camp in Kenya. His willingness to seek assistance and counselling now is a very positive step.
34. It has also been my observation that, despite the extremely harsh conditions in which he has lived and his exposure to a maximum security environment whilst still a teenager, he is not a “hardened” criminal. His behaviour is similar to that I have observed in adolescents, especially in terms of the frustration and fear he sometimes expresses, and he displays some vulnerability that seems to come from a lack of guidance or support. Based on my experience I believe that, with appropriate guidance and support, he has the capacity to grow into an adult who will be able to make a positive contribution to Australian society.
35. I think that removing Abraham from the support he is receiving in Australia would be a significantly negative step. I think that the death of his mother and his father’s abandonment of him at such a young age, combined with his experiences in surviving in a refugee camp, has meant that it takes a lot of time and effort to win his trust and confidence. While I do not doubt that case workers with similar skills to mine and Yousif’s may exist in New Zealand, they would need to spend time with him in order to get his trust and confidence. There is no guarantee that they would be able to get on with him or that he would trust them. He would be isolated from his family and the support he trusts in New Zealand and therefore open to other influences that may turn out to be negative.
Continuing support from the Brosnan Centre
36. The Brosnan Centre is willing and able to offer the following support to Abraham if he is released from detention:
(a)Accommodation through the JSS Housing Program, that provides a range of housing options for young people who are involved in JSS programs and services. The Centre manages and supports 31 beds across all metropolitan regions of Melbourne;
(b)Programs that will provide him with skills that will enable him to become employed through the Centre’s “Gateway” program; and
(c)My continued support, and that of the Brosnan Centre, of Abraham to enable him to establish an independent life outside the prison system.
37. In particular, I have reserved a place for him at the Brosnan Centre’s residential unit in Melbourne should he be released from detention in the next month. At this house Abraham would be able to access a case worker at all times. The Centre can also arrange for him to participate in courses and programs that would enable him to get work or ready to accept a job, as part of its Gateway program. Information concerning this program is attached as Annexure 2 to my statement.
38. While Abraham is at the residential unit I will be making arrangements for him to take the next step into independent housing within the next two to three months. The Centre has nomination rights with some transitional housing providers, which will be able to provide accommodation until he is able to obtain public housing.
39. The Centre’s funding enables us to intensively assist and support young people in our programs until they are 25 years old.
44. Mr King was quite extraordinarily loquacious. Oral answers to questions tended to be very lengthy although always fluent. As was the case with Mr Mohamed, Mr King suffers from a lack of relevant qualifications. His degree is in political science. He has gravitated towards works of a charitable nature since obtaining his degree as can be seen, in particular, in the first part of exhibit A3.
45. There is another very valid criticism of Mr King’s evidence and that is that he has not known the Applicant for very long. Mr King met him for the first time two weeks before his release from prison. He nevertheless believes that the Brosnan Centre will be able to provide the Applicant with the support and training he needs; one of its activities is in horticulture, an area in which the Applicant indicated a keen interest.
46. On balance and notwithstanding his lack of relevant qualifications, Mr King was an impressive witness. But even though he lacks formal qualifications in the relevant area, his inclinations are plainly benevolent and charitable. Moreover he has been assiduous in his concern for the Applicant, indicated in part by visits to him at Villawood and even though it has meant coming from Melbourne for this purpose. As I have indicated, the Applicant regards Mr King almost in loco parentis.. He did not, it must be said, indicate any clear view that the Applicant will not re-offend. However Mr King indicated that he has faith in the Applicant, (and considerable faith at that) and although it may be that he is being over-optimistic, it is at least possible that there is reason for his optimism.
PART G – THE CROSS-EXAMINATION OF THE APPLICANT ON THE FINAL HEARING DAY
47. The Applicant agreed that when at Fulham Correctional Centre he used cannabis. He also agreed at first that on 9 July 2004 he threatened another prisoner with assault. He then altered that evidence in order to say that this occurred at another time. He denied that he ever incited assaults by prisoners on other prisoners and said that he was not aware of any report to this effect by a youth centre.
48. The Applicant said that Mr. Mahomed became his mentor in 2002 that he, Mr. Mahomed, had tried to help him but that he had nevertheless committed further crimes. He agreed that regardless of the monitoring provided by Mr Mahomed he continued to offend. When it was put to him that Mr Mahomed’s attempt to bring about a change in his behaviour had not any effect, he answered “I don’t know”. When it was put to him that he did not pay much attention he answered that there “was not enough help”. He denied a suggestion that he did not want to change his behaviour. When it was put to him that it was his contention that it was “not your fault – it’s the fault of others” he answered “yes”.
49. The Applicant was cross-examined at some length as to his expression of remorse and when it was first made and whether it was merely an attempt to stay in Australia. The evidence in this context was even more confused than it had sometimes been on the first hearing day. Many questions were answered with “I don’t know” or with answers which were not apposite. As just one example it was put to him that the robberies were committed by a group of which he was a member. His answer was “I don’t know”. (He was constrained to agree that there was a group). He said that he thought he was good at making friends but was not prepared to accept in unequivocal terms that he would be able to do so in New Zealand.
PART H - THE EVIDENCE CONSIDERED AS A WHOLE
50. It is very difficult to know how to evaluate the evidence of the Applicant. It was at times hesitant and evasive and it was invariably hard to follow. But it is also fair to say that there were times when it was disarmingly honest. He admitted without pressure that he had been untruthful in the letter which appears at G pages 26 and 27. He also admitted that contrary to clause 25 of exhibit A1 he did have an opportunity to defend himself at the disciplinary hearing in June 2004. He also admitted readily enough that the gang had a fence in contrast to his earlier evidence that the mobiles were taken by a gang member or sold casually. His evidence at other times was silly. I found it difficult to believe that after robbing victims of their mobiles the gang politely returned the SIM cards to their owners. The fact that the gang had a fence indicates that it was organised.
51. As to why he behaved well in New Zealand but so badly in Australia was never explained by him in his evidence despite a number of questions to this effect, but Ms Seward furnished what might be a valid explanation. He came to Australia in his early teens and when he was an adolescent, often a time of difficulty for young men and particularly young men in his situation. I agree with her view that even now his is only a rather naïve teenager and moreover one with very little education. I would describe him as a particularly unsophisticated and I fear, not very bright teenager. The intelligence spoken of in respect of the Applicant from the bar table was not at all evident to me, and I believe that statements to this effect were exaggerated. The fact that the letter (G pages 26 and 27) (full of inaccurate spelling) had to be written by another inmate speaks volumes. He was never an impressive witness; this may have been caused in part at least by nervousness although it is hard to explain downright silly evidence in this fashion. It may be due to the fact that he is only 18 (although very soon to be 19) uneducated and unsophisticated. It must also be said that he did not at all give the impression of someone who would cause others to be frightened of him; he was in no way threatening. All in all his general bearing was to my mind in some ways pathetic.
52. He was of course easily led. He arrived in Prahan and quickly became part of a gang of roughs. Ms Seward described him as succumbing to peer pressure always, so she said, a potent force for young men but particularly so for someone of his background. The Applicant’s background and faith is Islamic which inclines him to think of male dominance as the norm. In New Zealand there was a dominant male in his life; in Australia there was only his Aunt. a female, who was moreover only 9 years his senior. He was in other words easy prey for the gang. Ms Seward argued that for him it was not simply an adventure.
53. I would not like these remarks to be construed as suggesting that his record was anything other than very bad. In two years he racked up a series of convictions;. the robberies and assaults and the detention convictions were particularly significant (and bad). The victims too are entitled to consideration.
54. It was suggested by Mr. Cox that he did have warnings. After his first prison sentence he was released on a 12 months good behaviour bond whose conditions he breached very soon after his release. Mr. Cox described that good behaviour bond grant as a warning (and not the only one) of the type contemplated by Direction 21 which treats as a relevant factor the issue to a visa holder of a formal warning that his visa may be cancelled. The evidence indicates that there was a threat of visa cancellation in the middle of 2004 and which prompted the Abdul letter to which I have referred previously in these reasons, but there was no follow-up action until some time later and when the visa was cancelled. Although the Applicant should have taken heed of the warning implicit in the bond (and at other times) it cannot be said that any such warning constituted one contemplated by Direction 21.
55. As to whether the Applicant does feel genuine remorse or whether he merely expressed remorse in his current predicament is simply now known to me; either is possible.
56. I am indebted to Ms Seward for another helpful suggestion which does have the merit that it accords with the facts. The Applicant seems to have “seen the light” when he was sent to an adult prison. She described his youth correction centres as holiday camps in comparison. It is odd that what might seem like harsh treatment (in sending a juvenile to an adult prison) might have had a beneficial effect. Her view, which must have some merit, is that his spell in an adult prison made him so afraid that it had a salutary effect, and thus militating against recidivism.
57. The dependence of the Applicant on Mr. King was very obvious. Mr. King has known the Applicant for a short time only and was hesitant about offering a firm view as to whether he would re-offend but the support displayed by Mr. King is to be commended.
58. The Applicant has accepted an offer of a place in the “Bridging the Gap” programme, and being one designed, so Ms. Seward said, for people just like the Applicant. It is a “one-on-one” intensive programme where there is a support person on call at all times. Although it is designed to run for 18 months to 2 years it can be continued until he attains the age of 25. It can give him horticultural training and it can also give him general education although, as Ms. Seward said, hardly to university level. Nor is attendance of the programme inconsistent with his obtaining a job. Mr. Cox pointed fairly enough to the flaw in all of this. Entry into the programme is voluntary and once entered it can be abandoned at any time. Accommodation is proposed for the Applicant in a suburb not far from Prahran and thus, so Mr Cox argued placing him at risk of further participation in gang activities. These points made by Mr. Cox are also worthy of merit.
59. Failure of the character test having been conceded by the Applicant, it is necessary to consider Direction 21.
PART I – DIRECTION - VISA REFUSAL AND CANCELLATION UNDER SECTION 501 OF THE ACT – NO. 21 (“DIRECTION 21”)
60. In this Part I references to numbered clauses relate to numbered clauses in Direction 21.
61. The primary considerations are contained in clause 2.3 which reads as follows:
“2.3 In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community; and members of the community;
(b) the expectations of the Australian community; and
(c) in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.”
62. Clause 2.3 must be read in conjunction with clause 2.5 which reads as follows:
“2.5 The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(a) the seriousness and nature of the conduct;
(b) the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c) whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).”
63. The question of deterrence can be dealt with relative ease. The circumstances in this matter are unusual. In the nature of things Ethiopian refugees of this type and with this background will be rare. Although his conduct in Australia has been depressingly similar to many others his background is not. I doubt whether this decision will have any deterrent effect; at the same time I do not think that it can be said that it sends the wrong message. The Applicant is Ethiopian, black, uneducated and very young and indeed younger than his years. It is hard to imagine any would-be robber taking comfort from this decision.
64. The question of whether the Applicant is likely to be a threat to Australia and the possibility of recidivism are matters which are closely related to each other. Neither of Mr Mohamed and Mr. King could predict with any certainty, as to whether he will re-offend and in the end result neither can I. Ms. Seward conceded (properly) that this is a possibility which cannot be discounted. Mr. Cox saw recidivism as a much greater danger. But my own view is that the danger is not as great as Mr. Cox suggested. I have drawn great comfort from the prospect of the Bridging the Gap programme. On the evidence before me it seems to be ideal for the Applicant; I cannot say with certainty that he will either start or having started complete the course but having observed the Applicant in his attitude to Mr. King it is clear to me that the Applicant places great reliance on and is probably dependent on Mr. King. It is in these circumstances that I am able to take the view that the risk of the Applicant becoming again a threat to Australia, by re-embarking on a career of crime, is not unacceptably high.
65. Some of the Applicant’s crimes fall into the very serious category within clause 2.6. And some of his evidence before the Tribunal was in breach of section 234 of the Act. That the Applicant has behaved very badly indeed cannot be doubted.
66. In respect of clause 2.12 Mr. Cox contended that it must be considered in the context of trust and breaches of trust such as the Applicant’s breach when he defaulted on his good behaviour bond conditions. I have no doubt that there are many persons in Australia who would take the view that a person who has behaved so badly should not be allowed to stay in Australia. But I also believe that there would be a substantial number who, with knowledge of the facts would take a different view, and one which is more compassionate. There is considerable authority for the view that a provision such as this should be interpreted in humane fashion.
67. There are three recent decisions of this Tribunal which appear to be in point, two by Deputy President Forgie. In Truong and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 100 she said in clauses 111 to 113:
“111. In relation to an offence such as drug trafficking of heroin, it may be regarded by some as an offence that cannot be tolerated and so justify the offender’s removal. Some may give no thought to mercy, thinking that this is an example of a situation in which:
"In the public administration of justice, mercy to one may be cruelty to others." (1711, Joseph Addison, The Spectator, No. 169)
What is inherent in their position, though, is that they have given thought to mercy. Mercy is also something to which regard is paid in the Direction. Clause 2.12 does not attempt to proscribe the circumstances in which the Australian community will consider that the mere nature of the offence will justify refusal or cancellation of a visa.112. Again, this is consistent with the approach taken in the criminal courts which are equally concerned with the protection of the Australian community as is the Minister in exercising her powers under s. 501 of the Act. In South Australia, King CJ said:
"... There must always be a place for the leniency which has traditionally been extended, even to offenders with bad records, when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform." (R v Osenkowski (1982) 30 SASR 212; 5 A Crim R 394 at 212-3; 394)
A similar approach was taken by Wallace J in Western Australia:
"Public concern about a crime must never be allowed to bring about departure by the courts from the fundamental concepts of justice and mercy which should animate the criminal tribunals of civilised nations: Yardley v Betts (1979) 22 SASR 108 at 112-3; 1 A Crim R 329 at 333. Whilst protection of the public against the commission of crimes of violence must remain of paramount concern, if it is possible, consistent therewith, for a court to be compassionate and assist in the rehabilitation of a human being so as to avoid destroying his life, then the courts ought surely do so: Webb v O’Sullivan [1952] SASR 65 at 66. Nor is mercy to the individual offender inconsistent with the recognition of the seriousness of an offence: Scott v Cameron (1980) 26 SASR 321 at 324." (R v Rowe (1991) 52 A Crim R 196 at 201 per Wallace J)
113. Although considerations in the migration jurisdiction are not limited by those in the criminal jurisdiction, I consider that guidance can be gained from the criminal jurisdiction and particularly so as the Direction, to which I am bound to have regard, does not purport to "... create any presumption as to the way in which that discretion should be exercised. ..." (Aksu v Minister for Immigration and Multicultural Afffairs (2001) 65 ALD 667 at 674 per Dowsett J). Compassionate grounds are considered under clause 2.17(j). It is not a primary consideration but the Australian community does not weigh up its reaction to offences and a history of offending without having regard to mercy. It is artificial to try to do so and it seems to me that clause 2.12 of the Direction does not attempt to do so.”68. Grant and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 3 is even more relevant; I refer to clauses 101 to 105 as follows:
“101. I do not consider that his use of the amphetamine on one occasion is indicative of a propensity to re-engage in drug taking on his release. His case also differs from many in that there is a discrete six month period of offending. Although there was truancy before that, there is no evidence of misbehaviour before that time. It is not a case in which there has been a history of offending with periods of non-offending in between. There is no pattern that has been repeated other than the pattern within the discrete period but that has been explained by the circumstances in which he found himself at the time. At that time, he lacked the maturity and insight he now has. Judge Davey had some faith that he would rehabilitate himself by setting a relatively lengthy parole period. That will be a period in which he is supervised and his behaviour monitored. On the evidence, I am satisfied that he is in the process of justifying that faith. The professional evidence of Dr Walton and Mr Cummins is that the chances of his rehabilitation are good or better than good. The other side of that is that the risk of his re-offending is small. I accept their evidence. Mr Jeffery Grant will no doubt be faced with stressful circumstances in everyday life but I accept that he is better armed to cope with them and to find a way of dealing with them other than committing further offences.
102. Deterrence in the context of the character test is always difficult. There is no empirical or other evidence that I have been given as to the deterrent effect that refusing a person entry to Australia or requiring their departure has on other people’s behaviour. It may be that people who know Mr Jeffery Grant know of what happens to him but would that deter them from behaviour leading to their committing offences? They might not have engaged in such behaviour in the first place or even thought of it. If they did, they might be Australian citizens in any event. Does the news of what happens to a person travel through the community in ways I am not aware of? I am left in the realm of speculation and so do not make a finding one way or the other regarding deterrence.
103. That brings me to the expectations of the Australian community. It is fair to say that the Australian community expects to be able to go about its lawful business without being robbed of their earnings. It expects that its members will not be confronted with a person armed with weapons, such as a pistol, machete or knife, that can clearly do them harm. Confrontation of that sort can permanently harm a person and change their lives even if there is no physical harm inflicted. That appears to be the case here for some of Mr Jeffery Grant’s victims are no longer able to work at night. The Australian community also exhibits compassion. It acknowledges that people can change and should be given a chance if they are genuinely trying to rehabilitate themselves and showing that they are succeeding. It acknowledges that they can grow up and change their ways.
104. If Mr Jeffery Grant were required to return to leave Australia, he would return to Jamaica. On the evidence, I find that he has few relatives in that country and no family support base as he has in Australia. He has no guaranteed place of employment. His future is uncertain. I find that his mother would be very affected by his departure as she could not afford to visit him with any regularity at all. If he remains in Australia, he has the support of his family network and a guaranteed place of employment in the family restaurant. He has a girlfriend who has shown him love and support over the years. Whether that love and support continues in the same way only time will tell. At 18 years of age and studying, she is still in the process of growing and changing as Mr Jeffery Grant did at the same age and continues to do in prison.
105. When I balance all of these matters, I consider that it lies in favour of Mr Jeffery Grant’s being permitted to remain in Australia. If he were to re-offend and were to commit similar offences, a member or members of the Australian community would suffer. That is a very serious matter. The seriousness of the consequences that would result from Mr Jeffery Grant’s re-offending must be weighed against the small risk of his re-offending. The small risk of his re-offending means that there is a small risk of the consequences’ occurring. The consequences to him would be grave. They are consequences about which he was not given any warning by the Department. Given his prospects of continuing rehabilitation, I consider that the Australian community would be appropriately protected were Mr Jeffery Grant’s visa not cancelled.”
69. I refer also to a decision by DP Walker in SRIIII and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1208; clause 68 of that decision reads:
“Consequently I believe that in this case the law should stay its hand and offer the applicant one more chance. He will remain under the supervision of the department and he knows what will happen if he deviates from the law in the future.”
70. It is a truism that each decision of this type turns on its own facts. In this case we have an Applicant who is very young and whose background includes tragedy. His behaviour has been bad but at the same time the faith displayed by Mr. King leads me to think that he can change direction and so that he may yet be a respectable member of society. I should emphasise that my decision is premised on the Applicant taking and completing the Brosnan programme, an aspect which is not within my power to control. At the same time I should note that he appears to have learned a salutary lesson from his stay in an adult prison.
71. I do not think it necessary for me to canvas a question which arose in closing submissions, as to the particular conditions referable to the Applicant’s visa. Ms Seward contended that if the Applicant is sent back to New Zealand he will never be able to return. Mr. Cox contended (probably correctly) that the holder of this type of visa (sometimes referred to as a “New Zealand visa”) is not subject to the same kinds of non-return conditions. If Mr. Cox is correct, as I think he is, there might be difficulties of a practical nature which I need not elaborate.
72. It will be noted that I have said little of the Aunt in terms of hardship under clause 2.17. This is because her estrangement from the Applicant indicates that any such hardship factor would not be significant. But at the same time she has indicated that she would be prepared to re-establish the relationship conditionally on his good behaviour.
73. On balance, and with some hesitation, I incline to the compassionate view referred to previously. The Applicant should for these reasons receive a second (and final) chance. He knows that if he re-offends he will not receive any further chances. The optimism and faith displayed by Messrs King and Mohamed as to the Applicant do deserve some credibility. Mr King in particular has displayed a very commendable commitment to him. While Ms Trezise might not have written so impassioned a letter had she known that the accompanying letter by the Applicant was in some respects false, her letter of support also deserves some credibility.
74. In all of the circumstances the decision under review is set aside; a decision pursuant to which the Applicant’s visa is not cancelled on character grounds pursuant to section 501 of the Act is substituted.
I certify that the 74 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J Block, Deputy President.
Signed: A. Garcia
AssociateDates of Hearing 19 - 20 May 2005 and 8 June 2005
Date of Decision 14 June 2005
Counsel for the Applicant Ms A. SewardSolicitor for the Respondent Mr A Cox
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