Kavanagh and Minister for Immigration and Multicultural Affairs - [2000] AATA 893

DECISION AND REASONS FOR DECISION [2000] AATA 893

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1304

GENERAL ADMINISTRATIVE DIVISION       )
           Re      AIDAN KAVANAGH
  Applicant
           And    MINISTER FOR IMMIGRATION ANDN MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Mr B.J. McMahon (Deputy President)

Date12 October 2000
PlaceSydney

Decision      The decision under review is affirmed.
  ..............................................
  BJ McMahon
  Deputy President
CATCHWORDS
IMMIGRATION & CITIZENSHIP – spousal visa – refusal on character grounds – applicant does not meet character test – conviction for attempting to discharge a firearm with intent to cause grievous bodily harm and with possession of an unlicensed firearm – sentence for a minimum term of 5 years – long history of alcohol abuse and violence – protection of the Australian community – unacceptably high risk of recidivism – expectation of the Australian community that non-citizens will obey Australian laws while in Australia – rights of the child – best interest of the child would not be to remain with the applicant – discretion not weighed in applicant's favour.

Crimes Act 1900 (NSW) – ss 7, 33
Migration Act 1958 (Cth) – ss 499, 501

12 October 2000 Mr B.J. McMahon (Deputy President)

The applicant applied for a spouse visa on 12 November 1997. After investigations, and after certain developments, the applicant was given notice that the Minister was contemplating a refusal of the application under section 501 of the Migration Act 1958 on the ground that he did not pass the character test. After considering the applicant's representations, and taking into account developments, including his subsequent conviction and imprisonment (to which I will later refer), the application was refused on 1 August 2000. This application is brought to review that refusal.
The applicant was born in Ireland on 7 April 1955 and remains an Irish citizen. After leaving school at the age of 18, he was employed by an industrial bank in Dublin from September 1973. In August 1975, he went to London to work for the same bank. He resigned from that position in September 1978, returning to Ireland to work for his father, who was a livestock exporter.
In January 1981, he went to New York where he worked as a bartender until 1983, when he returned to London. While managing a bar in that city he met an Irish girl with whom he lived until 1990.
From the time he first arrived in London, when he was in his early twenties, he abused alcohol. He regarded it as part of his job to drink to excess every day. Sometimes he suffered from blackouts. Often he was involved in arguments. The drinking habits apparently continued during his second period in London between 1983 and 1990. Inevitably, this led to some contact with the English police. In 1987 he was convicted of driving while under the influence of liquor. He was banned from driving for three years and fined 50 pounds. He was sent to an alcohol awareness program for a period of 12 months.
In 1989, police were called to his home where (he agreed in evidence before me) he was drunk and disorderly. When he came outside, he was arrested and charged with being drunk and disorderly in a public place. He pleaded guilty to this charge and was fined ten pounds.
His relationship with his Irish girlfriend could best be described as stormy. According to Mr Kavanagh, she also was an alcoholic. She had him arrested on one occasion when he would not leave the premises. He was locked up for a number of hours but was not charged.
In 1990, he met Marilyn. She frequented the hotel restaurant which he managed at the time. She was then married with three children, Emmerson, Clark and Amanda, but was separated from her husband who lived in the north of England. Marilyn had just returned to the United Kingdom from New Zealand, where she had been managing director of Franklin Mint, to take up a position as European director of the same firm. Marilyn acquired citizenship of New Zealand during her residence in that country and arranged for her three children to be included in her application.
Between 1990 and 1993, when they married, the applicant gradually terminated his relationship with his Irish girlfriend and formed a relationship with Marilyn.
According to a statement which Marilyn later gave to New South Wales police, the courtship was marked by physical and mental assaults. This statement, upon which much of the following factual material is based, was prepared in connection with a charge later to be brought against the applicant. It was used in judicial proceedings which led to his sentence. The facts in the statement were not challenged by Mr Kavanagh at that time or before me. Although Marilyn gave evidence in these proceedings in support of the applicant, she did not seek to deny any of the facts which had previously been set out in her statement. She had a copy of that statement made available to her prior to hearing before me.
She could recall the applicant punching and kicking her on numerous occasions. When police became involved, she remembered that the applicant would apologise, break down and cry. She would then relent and have the charges dropped in the hope that he would reform. She said in her statement that this happened about 20 times that she could recall. In her evidence before me, she agreed that at this stage of their relationship, physical violence was almost systematic.
Nevertheless, they married in October 1993. The applicant affirmed in evidence before me that since that date, he had "never raised a hand against her". He agreed, however, that he was involved in many other acts of physical violence against others and in many more acts of verbal abuse against Marilyn as well as others.
After their marriage in London, the applicant underwent many courses of treatment for alcohol abuse. He attended many meetings of Alcoholics Anonymous and was involved as an in-patient in detoxification programs in hospitals. In her statement, Marilyn indicated that over a period of five years of knowing the applicant, detoxification attempts would have taken place almost every three months.
In 1996, she was granted an injunction in an English court prohibiting the applicant from coming near the house or assaulting her in any way for a period of six months. Prior to that, the applicant's violence and abuse had extended to her children, Emmerson, Amanda and Clark. All the time, he continued to drink. Prior to the grant of the injunction he had been arrested, but was not charged.
Incidents involving the applicant and Marilyn's children included one occasion in 1992 when the applicant put a toy gun to Clark's head saying "this is how much it hurts". According to Marilyn's statement, Clark retreated to the bedroom crying and shaking with fear. On another occasion, he threatened Emmerson with a house brick, holding it up beside his head. Although the applicant said that he did this in self-defence, it is another example of his confrontational style with people while under the influence of alcohol. Amanda also came in for emotional abuse during his drinking when he became convinced that she had been having an affair with his brother.
Matters came to a head on 24 June 1996. The applicant had drunk a bottle of whisky and was abusive, both to Marilyn and to Amanda. Their son, to whom I will return, was then only fifteen months old and Marilyn feared for his safety. Amanda called the police. Their son was "screaming hysterically". Police arrived in the middle of this general mayhem and advised Marilyn that they would hold the applicant in custody until the family had packed their belongings and left safely. In her statement Marilyn said "On this night, the fear became so real and traumatic that I decided I would leave the country for Australia".
With Emmerson, Clark and the baby, she travelled to this country a day or so later. She stayed in Sydney with her friend Ann Holzer, intending to start a new life away from the applicant and to build that new life around her children.
About two weeks afterwards, she received a telephone call from the applicant, who promised that he would detoxify and that they could start afresh. He begged for one more chance and promised that he would get help and be a good father to his son. Marilyn agreed to give him that chance. There followed continual telephone calls during which the applicant appeared quite distressed. He assured Marilyn that he was attending Alcoholics Anonymous every day. In August 1997, she decided that he could have one last chance because, in her view, he had kept his promise. He arrived in Australia during that month.
They then rented a house at North Ryde with the two children and Ann Holzer. Around October 1997, however, the applicant began to drink heavily again. This was accompanied by abuse of all who crossed him. On one occasion, in the course of abusing Ann Holzer for about half and hour, the applicant placed his head inches away from her. As she pushed him away, he then began to punch her. She fell to the floor and, according to Marilyn's statement, the applicant then began to kick her around the back and head. Clark called the police, who took statements from all concerned. In November 1997, Marilyn sought an apprehended violence order at Ryde Local Court for her protection.
It was about this time that the application for the relevant spouse visa was made. Early in December 1997, the applicant left Australia and returned to London. Marilyn advised the Department at that stage that they had separated. From London, the applicant called Marilyn on numerous occasions, abusing her each time. He called the daycare centre where their young son was being looked after. He made a formal complaint to the police that Clark had sexually abused their young son. After investigation by the authorities, there was nothing untoward found as a result of this accusation. The applicant continued to call Marilyn at her work, harassing and threatening her. He also called Ann Holzer's employers, saying that she was an unfit employee. He sent faxes to Clark's school alleging that Clark had sexually abused their child. According to Marilyn's statement, the applicant also called her friends around Sydney and threatened them. Each of them told her whenever he called.
In January 1998, she received another telephone call from him in which he said:
"I've had a nervous breakdown and have been in St Thomas' Hospital. I am under a psychiatrist, Dr Taylor. I have been drinking for six weeks solid. I haven't washed or changed my clothes since I returned home. My family have stopped calling me because I have been abusing them over the phone. I have continuously been on the phone to the Salvation Army because I am suicidal."

The applicant returned to Australia on 26 January 1998 on a visitor's visa, which subsequently expired on 26 April. He went immediately to the North Ryde home. In some state of shock when this sudden news reached her, Marilyn returned home. Following further arguments and accusations concerning Clark, they went to Gladesville police station. The attending Senior Constable wanted to know why the allegation of child abuse had been made over three months after the alleged facts. The applicant is said to have replied "I have been drunk for six weeks and under a psychiatrist Dr Taylor from the Mawby Clinic in London and was unable to do it earlier". Marilyn left the police station and subsequently went to her solicitor's office in Gladesville. Remembering that her youngest son was then at daycare in Henley, she left the solicitor's office to pick him up. On arriving, she saw the applicant at the daycare centre trying to take the child away.
A short time later, an officer from the Department of Community Services arrived and spoke to the applicant, Clark, and Marilyn separately and together. The applicant was told not to approach the daycare centre, nor to approach Marilyn's home and to stop threatening Clark. An access time was then arranged. The applicant did not return to the house which Marilyn continued to occupy. From the time of his arrival in January 1998, he lived at a hotel in the city of Sydney.
In the meantime, on the advice of his solicitor, the applicant also obtained an apprehended violence order against Marilyn, although he agreed in evidence before me that he had no real apprehension of mistreatment from her. A hearing date of 24 April 1998 was set before the Magistrate.
On 1 February 1998, Marilyn was contacted by Town Hall police saying that the applicant had complained that someone from England was going to kill him and that she was the only person with his phone number. Two days later, she received a phone call from the applicant in which he said "I am returning to England. I realise it is over. Can I see my son before I go?". It was agreed that they would meet for this purpose. The applicant told Marilyn that he had his airline ticket and asked her to drive him to the airport the following day. He later called her to make sure that she would be there.
On 5 February 1998, they met again. The applicant was "obviously emotionally disturbed". He asked to drive by the daycare centre. After the car had been parked and after some argument about his future treatment, the applicant reached inside his shirt and pulled out a gun. He said "I'm sorry to have to do this to you but I can't live without you". As he said this, he pointed the gun towards Marilyn's face. She grabbed the barrel with her right hand as he struggled to pull the trigger. She screamed as loud as she could and forced her elbow onto the horn causing it to sound. As her right hand tightened around the barrel it opened and a couple of bullets fell out onto his seat. She screamed louder at this. When she saw the bullets drop out, she jumped from the car. The applicant then chased her towards the daycare centre. Marilyn called out to one of the daycare centre workers that her husband had a gun and shouted could she hide in a locked room with her child. She said in her statement that she ran through the daycare centre hysterical and in shock. She saw the applicant through the glass window. He was at the back of the daycare centre running around. She then found her child, went into the craft room with him, closed the door behind them and crouched down with him until the police arrived.
As a result of this incident, he was arrested and interviewed by detectives. During the interview, he said that he and Marilyn had agreed upon a suicide pact. He said in explanation for his actions that he intended to kill her and then kill himself. He persisted with this story in certain interlocutory proceedings in the District Court prior to his conviction. He agreed in evidence before me, however, that it was a total fabrication. Needless to say, Marilyn denied that there was any such agreement. It would be totally contrary to her prior pattern of behaviour if she had consented to leave her children in such a way. The concoction of such a story is an indicator of the applicant's inherent lack of respect for legal processes.
He was charged with attempting to shoot with intent to murder and with possessing a firearm and with breaching an apprehended violence order. On the advice of his solicitor, he pleaded guilty to a lesser charge and was convicted of attempting to discharge a firearm with intent to cause grievous bodily harm and with possession of an unlicensed firearm. On 21 July 1999, he was sentenced to a five year minimum sentence with an additional three years on the grievous bodily harm charge and for two years on the firearm charge, to be served concurrently. He had been in custody on remand between 5 February 1998 and 21 July 1999. His earliest date of release is now 4 February 2003, subject to an appeal pending in the Court of Criminal Appeal on the issue of severity of sentence.
Because he has been sentenced to a term of imprisonment of 12 months or more, he is deemed to have a substantial criminal record by the operation of subsections 501(6) and (7) and, accordingly, does not pass the character test. The only question to be decided, therefore, is whether the residual discretion should be exercised in his favour.
In considering this question, I am bound by direction number 17 given by the Minister under section 499. This requires me to take into account three primary considerations, namely the protection of the Australian community, the expectations of the Australian community and the best interests of any relevant child.
As to the first primary consideration, I am to consider the seriousness and nature of the applicant's conduct and the likelihood that the conduct may be repeated.
The length of the sentence imposed is an indication of the seriousness of the conduct. Unfortunately, because of the unreal time limitations in section 501, it was not possible to obtain a copy of the Judge's sentencing remarks prior to the hearing of this application. It may be noted, however, that the major crime for which he was convicted is contrary to section 33 of the Crimes Act, for which the prescribed punishment is penal servitude for a maximum of 25 years. The firearms offence is contrary to section 7 of the Firearms Act, for which the prescribed punishment is imprisonment for a maximum of 10 years, the firearm being a pistol. However, the facts as I have recounted them speak for themselves when viewed in conjunction with the sentences imposed. Crimes involving violence or the threat of violence are, as the Ministerial Direction puts it, of special concern to the welfare and safety of the Australian community. There can be no doubt that the conduct of the applicant which led to his convictions was particularly serious. The fact that it was associated with alcohol abuse does nothing to diminish that seriousness.
I am therefore to look at the risk of recidivism. The applicant has had a history of alcohol abuse between about 1975 and the time he first went to prison in February 1998. This history has been evidenced by his various confrontations with English and Australian law. His conduct has continued unabated, notwithstanding continuous counselling he has received over the years.
Between 1987 and 1988 he went to a twelve week course. He undertook another rehabilitation course at Harrow in March 1991. He attended Alcoholics Anonymous meetings between 1991 and 1992 "all over Hertfordshire and Essex". After the 1993 injunction, he went on another six month course. The result of that, however, was that he started binge drinking for the first time. He was constantly drinking while in the hotel trade. Since his marriage, he has continued to drink.
His addiction to alcohol has manifested itself in physical and verbal violence on a number of occasions. Prior to their marriage, Marilyn agreed that he was routinely violent. He had manifested his violent tendencies not only against Marilyn but also against her older children, his former girlfriend and Marilyn's friend.
Since 1988, he has been in alcohol-related programs almost continually but has nevertheless continued to abuse that substance. He agreed that he had often told his wife that he would quit drinking. This could have been on more than 20 occasions. He did not carry out his promises on any occasion until he was sent to prison. According to Marilyn "being in jail is one of the best things that has happened to him".
While in prison, he has taken part in a violence prevention program. A report by Christopher Shanahan, a psychologist, which the applicant tendered in evidence, describes this program was follows:
"Mr Kavanagh entered Stage I of the Violence Prevention Program on February 28th 2000. Whilst in Stage I he attended groups designed to (a) provide basic skills in communication, and (b) engendered motivation to both participate in the therapeutic process and challenge offending behaviour.
Mr Kavanagh progressed to Stage II of the program on 19th June 2000. He has completed distinct modules relating to (a) the identification and management of anger, (b) the modification of criminal attitudes and beliefs, (c) the development of victim empathy and the ability to understand the perspective of others, and (d) the establishment of strategies to prevent relapse into violent or criminal behaviour when placed in high-risk situations. In addition to the daily therapeutic groups he has attended classes on Relaxation, Art, Spiritual Awareness, Biography, and Alcohol & Other Drugs."

Summarising the applicant's progress, Mr Shanahan said:
"In terms of addressing his offending behaviour, Mr Kavanagh appears to have gained a significant amount from the Violence Prevention Program. The skills Mr Kavanagh has acquired are likely to enhance his ability to form normal and satisfying relationships, obtain and hold employment, and cope with general stressors. While this may lower the probability of further aggressive or antisocial behaviour, Mr Kavanagh needs to remain cognizant of the other major factors involved in his offending behaviour: his substance abuse and his psychiatric condition (diagnosis of Bipolar Disorder). In relation to his substance use, it would be extremely beneficial to Mr Kavanagh if he continues to Stage III of the program, where he will address in more depth the factors underlying his problematic drinking. Whilst the latter condition can not be addressed directly in the Violence Prevention Program, Mr Kavanagh has not demonstrated any obvious signs of depression, mania, or other forms of psychopathology whilst in the unit."

There was no psychiatric evidence of a bipolar disorder as referred to by Mr Shanahan in these proceedings. According to Diagnostic and Statistical Manual of Mental Disorders 4th Edition, the phrase "Bipolar Disorder" is a compendious phrase used to describe many conditions, characterised by the occurrence of one or more manic episodes or mixed episodes. These include episodes of substance-induced mood disorder due to the direct effects of a drug of abuse. I understand from this that if there is any clinical psychotic condition present in the applicant, then it would be as a result of his alcohol abuse or, at the least, would be associated with it. It would follow that if substance abuse continues the disorder, and behaviour associated with it, will persist.
From the psychologist's report, it is clear that the program in which the applicant is enrolled is directed to controlling violence. Attention is given to alcohol and other drugs only incidentally to the main purpose of the course. There is nothing in Mr Shanahan's report to give any ground for hope that the applicant will continue to refrain from drinking alcohol on his release from prison. The only evidence is his affirmed intention to do this. In my view, sadly, it is not sufficient, having regard to his history.
One would have to be hopelessly optimistic to believe that upon his release, he would not revert to his old habits, having regard to the long, unsuccessful course he has pursued in trying to overcome them. As all his violence towards his family and others has been associated with alcohol abuse, it is likely that there will be a recurrence of violence upon his release. Although much of his verbal abuse has been directed at Marilyn, with whom he is most closely related, similar abuse, and sometimes physical violence, have been directed at other members of the community (including Ann Holzer). Those at risk from his errant behaviour will not be confined to his immediate family.
He has continued his anti-social behaviour – and indeed criminal behaviour – notwithstanding his many promises to reform over a period of 23 years. He has continued to re-offend notwithstanding court proceedings involving an injunction and an apprehended violence order. All the dramatic events between November 1997 and February 1998 took place notwithstanding the fact that a decision was awaited on his application for a spouse visa. If he could not behave appropriately while awaiting the outcome of that application, how can one have any confidence in his future behaviour? Whatever help may be available to him in the future, the risk of harm to the Australian community is unacceptably high.
The second primary consideration relates to the expectations of the Australian community. This includes an expectation that non-citizens will obey Australian laws while in Australia. In my view, there is a significant risk that the applicant will breach this trust in the future as he has in the past.
The third primary consideration relates to the best interests of the child born to the applicant and Marilyn on 18 February 1995. He was given the name AJ. Although born in London, he has since acquired New Zealand citizenship, on the application of Marilyn, through the New Zealand High Commission in London.
AJ has been exposed to the applicant's conduct while under the influence of alcohol. Indeed, the removal of the whole family in June 1996 to Australia came about as a result of an intention to avoid a repetition of harmful incidents. AJ was exposed to conduct at the daycare centre when the applicant attacked his wife with a gun in circumstances which must have been quite terrifying. In fact, Marilyn gave evidence that he is now receiving treatment from a psychologist because of inappropriate behaviour when she leaves him alone in a room. He becomes patently frightened and wants to be with her all the time.
AJ attends Villa Maria Catholic School. He lives in a house owned by Marilyn in Hunters Hill. The only other occupant is Clark, who is now aged 18. AJ is doing well at school and is a year ahead in reading. Marilyn does not wish to disrupt him.
She gave evidence that Clark had also secured his future in Australia. She puts the interests of Clark and AJ ahead of anything else. If the applicant's spouse visa is refused and he is obliged to leave this country after serving his sentence (whenever it expires) she would not follow him with the two children. AJ accompanies her to visits to the applicant in prison and appears to enjoy them. His best interests have to be considered, however, having regard to the grant or refusal of the spouse visa application.
I accept that when he is sober, the applicant is very fond of AJ and that this fondness is reciprocated. Nevertheless, the evidence is clear that AJ has suffered mental abuse through the applicant's behaviour associated with alcohol. In my view, that or similar behaviour is likely to occur in the future and, accordingly, AJ will again suffer.
That being so, this is one of those cases where, in my view, the best interests of AJ would be served by separation from his father. The applicant has not lived with AJ and his mother since November 1997. For approximately half of AJ's young life, therefore, he has been separated from his father. It has only been in the second half of his life that he has seen his father sober, not necessarily by choice but because of the constrictions of his environment. In my view, the best interests of AJ would be served by a continuance of this separation.
There are no other considerations that would tend to compel the exercise of the discretion in the applicant's favour. He has very few ties with the Australian community. Although he has a genuine marriage with Marilyn, I did not receive the impression from her evidence that she herself would suffer any significant hardship if he was obliged to leave Australia. She is well paid in a responsible position and would be well able to travel from time to time.
The applicant gave evidence that he will suffer particular hardship if the visa application is refused. This is because the existence of a virtual deportation order while he is in prison means that he would be unable to attend outside TAFE courses (which he says he wants to do) and he would be ineligible to apply for day or weekend leave. The Ministerial Direction does not take account of hardship caused to the applicant. Under "Other Considerations" it requires me to look only at the degree of hardship which would be caused to immediate family members who are lawfully resident in Australia. If the reviewable decision were what I have elsewhere described as a disguised deportation decision, then there might be something to be said for a consideration of hardship to the applicant under the heading of "Expectations of the Australian Community". This is not such a decision however. The reviewable decision is not one brought about by an initiative of the Department. It is a response to an application by Mr Kavanagh. In considering that response, I am, as I have said, bound by the terms of the Ministerial Direction and consequently can take no account of direct hardship to the applicant.
There is no evidence of any hardship which might be caused to the three older children if the applicant was unable to live in Australia. One might speculate indeed that some of those who have been the object of the applicant's violence or abuse might welcome a separation from him.
As there are no other considerations in the applicant's favour, the decision under review should be affirmed.

I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B.J. McMahon (Deputy President)
Signed:         .....................................................................................
  Dominika Rajewski, Associate
Date of Hearing  05 October 2000
Date of Decision  12 October 2000
Representative for the Applicant              Self-represented
Representative for the Respondent        Michael Snell (Sparke Helmore)