Kenzie and Minister for Immigration and Citizenship

[2010] AATA 630

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 630

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/2284

GENERAL ADMINISTRATIVE  DIVISION		)
Re		David Kenzie

Applicant

And Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal Senior Member A K Britton

Date23 August 2010

PlaceSydney

Decision The Tribunal sets aside the decision under review and substitutes a decision that Mr Kenzie's visa should not be cancelled

....................[SGD]................

Senior Member

CATCHWORDS

MIGRATION – visa cancellation – character test – weighing of relevant considerations favours setting aside Minister’s decision to cancel visa.

Migration Act 1958 (Cth) — ss 499, 501

REASONS FOR DECISION

23 August 2010 Senior Member A K Britton           

1.      Mr David Kenzie was born in New Zealand and has lived in Australia continuously since he was four years old. He is now 29 years of age. Since 1998 he has been convicted of 20 separate offences and spent a total of 56 months in imprisonment.  

2.      Mr Kenzie has been in a relationship with Ms Monique Micallef since 1998/1999. They have two sons aged two and three. When not incarcerated, Mr Kenzie lives with Ms Micallef and the boys.

3. On 27 April 2010, a delegate of the Minister decided to exercise the discretion under s 501(2) of the Migration Act 1958 (Cth) (“the Act”) to cancel Mr Kenzie’s visa. Mr Kenzie has now applied to the Administrative Appeals Tribunal for review of that decision. He seeks to have that decision set aside and in substitution a decision made that his visa not be cancelled.

power to cancel Mr Kenzie’s visa

4. Under s 501 of the Act, the Minister, or the AAT acting as substitute decision-maker, may cancel a visa if they “reasonably suspect that the person [who holds the visa] does not pass the character test” and “the person does not satisfy the [decision-maker] that the person passes the character test”. Section 501(6) provides that a person does not pass the character test if he or she has a “substantial criminal record”. “Substantial criminal record” is defined to mean, among other things, having been sentenced to a term of imprisonment of 12 months or more, or having been sentenced to two or more terms of imprisonment where the total of those terms is two years or more. Mr Kenzie has a “substantial criminal record” as he has been sentenced to terms of imprisonment which in aggregate exceed two years, of which one was for a period of more than 12 months.

5.      Accordingly, he does not pass the character test, and the precondition to the exercise of the power to cancel the visa has been satisfied.  

Factors to be taken into account in exercising power to cancel Mr Kenzie’s visa

6. In deciding whether to exercise the discretionary power to cancel Mr Kenzie’s visa, I am required to have regard to “Direction [no. 41] – Visa refusal and cancellation under s 501” (“the Direction”). The Direction was issued by the Minister for Immigration and Citizenship under s 499 of the Act and commenced on 15 June 2009.

7.      The Direction lists a number of “primary” and “other” considerations that the decision maker must take into account. The Direction provides that generally, “other considerations” should be given less weight than that given to primary considerations: par 11.2.

8.      The primary considerations are set out in paragraph 10(1) of the Direction:

(a) the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;

(b) whether the person was a minor when they began living in Australia;

(c) the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and

(d) relevant international obligations, including but not limited to:

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

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

9.      These considerations are elaborated on by a range of factors to which the decision maker must have regard.

10.     The parties agree that of the primary considerations all but one — the protection of the Australian community — weigh in Mr Kenzie’s favour. The Minister contends that there is a high likelihood that Mr Kenzie will reoffend, and that therefore this consideration weighs heavily in favour of cancelling Mr Kenzie’s visa.  Not surprisingly, Mr Kenzie does not agree.

Primary considerations

(a) Protection of the Australian Community

11.     The Direction requires that due consideration be given to the Government’s objectives as set out in paragraph 5 of the Direction.  These are in the following terms:

5.1 Objectives

(1) The objective of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens.

(2) In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.

(3) The Government is especially mindful to protect the safety of the community’s more vulnerable members, including minors, the elderly and the disabled.

12.     The Direction identifies two factors relevant to assessing the risk of harm to the community of the person’s continued stay in Australia: (i) the seriousness and nature of the relevant conduct, and (ii) the risk that the conduct may be repeated: par 10.1.2.

(i) Seriousness and nature of the conduct

13.     The Direction sets out a number of factors to be taken into account in assessing the seriousness and nature of the offending conduct and states that:

Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community. Those crimes involving violence, particularly against vulnerable persons (such as minors, the elderly and the disabled), are especially abhorrent to the whole community.

14.     The Direction classifies two of the offences for which Mr Kenzie has been convicted — robbery and assault —as “serious offences”. 

15.     Paragraph 10.1.1(3) of the Direction provides that the sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community and due regard must be given to the extent of the offender’s criminal record including:

(i)        the number and nature of offences;

(ii)       the period between offences; and

(iii)the time elapsed since the most recent offence.

16.     Paragraph 10.1.1(3) states that “The sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community”, and regard must be had to the number and nature of offences, the period between offences and the time elapsed since the most recent offence. Among the factors to be considered under paragraph 10.1.1(4) are any judicial comments made about the person, parole assessments, and any relevant mitigating factors.

17.     Criminal History: Mr Kenzie has been convicted of the following offences: 

17 February 1998                Driving in a manner dangerous to the public; driving without a licence in a public street; break, enter and steal; theft of a motor vehicle; possession of house-breaking implements

11 November 1998               Assault occasioning bodily harm

8 June 1999              Demanding property with menaces

17 March 2000          Robbery in company

7 May 2003               Being carried in conveyance without consent of the owner; custody of knife in a public place; possess car breaking implement and drive conveyance

28 May 2008             Larceny; maliciously destroy property (2 counts); driving while disqualified (2 counts); break and enter building; drive with middle range prescribed concentration of alcohol; common assault

23 October 2008        Common assault

5 February 2010        Robbery

In addition, Mr Kenzie was found guilty in 1998 of a number of traffic offences for which no conviction was recorded.

18.     Mr Kenzie was 15.5 years when he committed the first offence for which he was convicted. He went on to regularly commit offences throughout his adult life. His most recent offence — robbery — was committed in May 2009. It involved the theft of a mobile phone from a young man at a deserted railway station. His second-most recent offence was committed in October 2008 and involved the assault of a taxi driver. Both offences were committed when Mr Kenzie was on recent release from custody and intoxicated.

19.     Mr Kenzie has been sentenced to 12 terms of imprisonment ranging in duration from one month to five years and three months. Four sentences were for terms of more than 12 months.

20.     Sentencing comments:    The Minister has referred me to comments made by judicial officers about Mr Kenzie which I have taken into account.  These include the remarks on sentencing of Magistrate Keogh of the NSW Local Court in May 2008:

The break and enter was a serious one and he had a difficult record even then so is extended some considerable leniency and he’s breached that bond not just be [sic] failure to report but committing further offences. So what’s happened is it’s all caught up with him.

21.     Mitigating circumstances:  There is a reference in the material before me to Mr Kenzie seeing a psychologist in 2008 in relation to “various problems” in his childhood. It was taken into account by the magistrate on sentencing in relation to the 2008 robbery. It may constitute a mitigating circumstance, but on the limited material before me, I could not be satisfied that it does.   

(ii) Risk that conduct may be repeated

22.     The Direction provides that Mr Kenzie’s previous general conduct and total criminal history are to be considered highly relevant to assessing any risk of re-offending: par. 10.1.2(1). The following factors are to be considered as particularly relevant to that assessment:

(a) a recent history of convictions, which should be considered as indicating an increased risk of re-offending;

(b) evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation. Greater weight should generally be given to evidence from independent and authoritative sources, such as judicial comments, professional psychological reports, pre-sentence reports for the courts, parole assessments, and similar sources of authoritative information or assessment; and

(c) evidence that the person has breached judicial orders, including parole, bail, bonds, suspended sentences and any other relevant undertakings or conditions imposed by the courts.

23.     Recent history of convictions: The Direction provides that Mr Kenzie’s history of recent offending must be taken to indicate an increased risk of re- offending.

24.     Drug and alcohol use: It is common ground that Mr Kenzie’s offending conduct has generally been triggered by drug and/or alcohol use. Mr Kenzie claims that he started drinking when he was about 13 years of age, and taking drugs about three years later.  

25.     Mr Kenzie claims not to have used illegal drugs since 2006 and alcohol since being remanded in custody in June 2009. While incarcerated, he has been subjected to regular urine tests and has tested positive for illicit drugs on two occasions — in 2002 and January 2009. He denies having consumed illicit drugs on either occasion.  He claims that the 2009 result was caused by taking an anti-depressant the night before testing. In respect of the 2002 test, he claims that he had been playing cards in a cell where everyone but him had been smoking cannabis.

26.     Mr Kenzie’s long term partner, Ms Micallef has been in stable full time employment since 2003, does not have a criminal record and does not drink or use illicit drugs.  Each claim that since the birth of their sons they effectively only socialise with their respective extended families where drinking is not a “big feature”. Mr Kenzie’s mother testified that she has discussed her son’s drinking problems with family members, and it is agreed that alcohol will not be consumed when he visits or at any family events he attends.

27.     Past and planned rehabilitation efforts:  While in custody in 2000, Mr Kenzie acknowledged he had a drug and alcohol problem. In 2008 he participated in a drug and alcohol rehabilitation program, but failed to complete it. On his account, that program focussed on group counselling, which he claimed he found unsuitable due to his difficulties openly discussing his problems. 

28.     In October 2008, on sentencing Mr Kenzie in relation to the taxi driver assault, Magistrate Ellis commented:

I hope that if you do get back there [the William Booth Institute] again, and that would be part of the order I am structuring, that you continue with it because otherwise you are just going to give up on yourself and continually be in custody. That’s something over which I have no control. I just mention it because until you do address that [Mr Kenzie’s drug and alcohol problem] you might as well just not make any applications for bail because that’s where you’ll keep on ending up.

29.     Mr Kenzie testified that he is determined to continue to abstain from alcohol use once he is released, and has accordingly enrolled in a residential drug and alcohol rehabilitation centre, Adele House. He claims that on completing that program, he intends to participate in the Invictus drug and alcohol rehabilitation program. Conducted by psychologist, Mr John Taylor, who gave evidence in these proceedings, the course provides, among other things, intensive individual counselling. Mr Kenzie also claims that he intends to join Alcoholics and Narcotics Anonymous after graduating from Invictus.

30.     He testified that to avoid relapse, he intended to avoid mixing with people who drank alcohol or used drugs. 

31.     Commitment to reform: Mr Kenzie testified that he has no intention of re-offending on release, but is worried that he might relapse into alcohol use. He says he realises that if he does he will lose his family who he claims mean everything to him.  He acknowledged that this is not the first time he has said he will try to change.  However, he claimed that whereas previously he had only known he should change, he now wanted to change and was determined to do so. 

32.     Ms Micallef and Ms Kenzie’s mother each testified that they observed a “noticeable difference” in Mr Kenzie’s attitude shortly after he commenced his most recent custodial sentence. According to Ms Micallef, Mr Kenzie now knows that “this is it”, and he must grow up and set an example to his sons. She said he knows that if he reoffends their relationship is over. She claims that she can tell “through his eyes” that he is at a “turning point”.  She cites Mr Kenzie’s persistence in seeking out and undertaking rehabilitation courses shortly after commencing his most recent custodial sentence as further evidence of his genuine resolve to change. During this period, he participated in a number of general rehabilitation programs, including “Getting Smart [Self Management and Recovery Training]” — a course conducted by the NSW Department of Corrective Services. 

33.     Mrs Kenzie also testified that she has noticed a discernable change in her son.  She claimed she was confident that he will not reoffend. In her opinion, the threat of deportation and losing Ms Micallef and the boys had “scared the life out of him”. She said that while she and her husband had regularly visited Mr Kenzie while in custody “all over the state” over the past decade, they now wanted their life back and had recently told him that they would not continue to visit if he returned to gaol. Mrs Kenzie said that while she had considered following her son to New Zealand if he was deported, her husband was “dead against it”. She claimed their ties to Australia are too substantial —their other children and 13 grandchildren all live in Australia and, in addition, they both have secure jobs.

34.     Family support:  The relationship between Mr Kenzie and Ms Micallef commenced when he was 17 and she was 16 years of age.  They separated for about three years in 2003. Mr Kenzie testified that they had been planning to get married since 2007 (Ms Micallef thought it was 2006), but their personal circumstances had interfered with these plans. Mr Kenzie said he did not want to marry Ms Micallef while he was in Villawood, as he didn’t want anyone to think it was a ploy to allow him to stay. Furthermore, he stated that Ms Micallef “deserves (and wants) a big beautiful wedding”. He testified that they plan to have another child if he is not deported.

35.     Both Mr Kenzie and Ms Micallef have large extended families. A large number of family members provided character references in these proceedings. All attest to Mr Kenzie’s devotion to Ms Micallef and the boys. There is no evidence of any other member of the extended family having a criminal record.

36.     Conduct in prison and on parole: Reports of Mr Kenzie’s conduct in prison indicate that although charged with a number of breaches of prison discipline, he was generally well-behaved. Apart from an alleged assault and use of standover tactics in 2002 — for which he was not charged — there are no reports of Mr Kenzie acting in a violent or intimidatory manner towards other inmates or custodial staff.  While reports of his conduct in prison are mixed, he has been commended on many occasions for his exemplary conduct and a strong work ethic. A Department of Corrective Services Case Note dated 1 April 2010 observed that Mr Kenzie had been employed as a wing sweeper since 8 March 2010, and had “caused no problems” and performed his duties to an acceptable standard. 

37.     Expert evidence:  Mr Taylor prepared a psychological report on Mr Kenzie and also gave oral evidence.  He assessed Mr Kenzie as having “an above-average predisposition to abuse alcohol and/or illegal drugs”. He said that results on testing indicated that Mr Kenzie tended to be “sensation-seeking and risk-taking” in his behaviour.  He said Mr Kenzie would usually have impulse control providing he did not engage in substance abuse. According to Mr Taylor, testing revealed that Mr Kenzie does not have “significant anger pathology”; however, if intoxicated, he is likely to express his anger in “an impulsive manner”.

38.     Mr Taylor said the results on actuarial testing revealed that Mr Kenzie had a “moderate risk” of both general and violent recidivism.  In his opinion the following operated to reduce Mr Kenzie‘s likelihood of recidivism:

Claimed support of partner and parents

Motivation for employment

Motivation for substance abuse counselling

Motivation for ongoing counselling and support

39.     He also thought that the following contributed to Mr Kenzie‘s risk of recidivism:

Identification with anti-social attitudes [apparent on testing]

Above average pre-disposition to engage in substance abuse.

40.     According to Mr Taylor, three factors are internationally-recognised as being “highly predictive” of being preventive of relapse into drug and alcohol use:

Significant community support

Stability of employment

Access to health care

41.     Mr Taylor considered that the family support provided to Mr Kenzie, together with his reported work ethic and range of employment skills, would assist in preventing a relapse of drug and alcohol use.    

42.     Mr Taylor thought it relevant that Mr Kenzie now recognised the need to participate in a rehabilitation program, and in his opinion appeared “genuinely committed”. He thought that if Mr Kenzie were able to maintain his resolve and participated in the Adele House and Invictus programs, his prospects for rehabilitation were “reasonably good”. He thought Mr Kenzie’s one and only failed attempt at rehabilitation did not indicate that he was not amenable to rehabilitation. While Mr Taylor believed there was a moderate risk that Mr Kenzie might reoffend he thought that that risk would be “substantially reduced” if he undertook rehabilitation.  He thought that if he did so and continued to enjoy the support of his family and found employment, his risk of recidivism would be low.

43.     Minister’s submissions: The Minister does not question Mr Kenzie’s resolve to change his lifestyle, but questions his ability to do so. He points out that Mr Kenzie has long enjoyed the support of a loving and supportive family; previously been issued with ultimatums by his partner; attempted and failed rehabilitation in the past; and, continued to offend after the birth of his sons, who he claims to adore. In short, the Minister contends that “nothing much has changed” since Mr Kenzie was last in the community.

44.     The Minister contends that Mr Kenzie’s recent offending history suggests that he remains a threat to the safety of the community. The Minister points out that he was convicted in relation to an alcohol-fuelled assault only two months after being released from custody in 2008, and was in turn convicted of robbery four months after the end of the custodial sentence for that offence. On both occasions, he was not a minor, had two sons and a supportive family. The Minister contends that Mr Kenzie has not been given but not heeded numerous “wake calls”.

45.     Conclusions: Mr Kenzie has a lengthy and serious criminal history. Of his offences, robbery is the most serious.  He was sentenced in March 2003, when he was 18 years old, to a term of imprisonment of five years and three months with a non-parole period of two years and nine months for an offence of robbery in company, an offence carrying a maximum penalty of 20 years imprisonment.  The offence involved intimidating a teenage boy on a train and taking money from him.  Mr Kenzie pleaded guilty to that offence and had three similar robberies taken into account at the same time.

46.     In 2009, Mr Kenzie was once again convicted of robbery, this time alone, but in similar circumstances — namely intimidating a victim at Revesby railway station.  The latter was deprived of his mobile phone. 

47.     Robbery is a serious crime. In NSW it carries a maximum sentence of 14 years imprisonment. It involves the use or threat of violence against another person to steal property.  Nevertheless, the offence committed by Mr Kenzie at Revesby railway station appears to have been at the lower end of the scale in terms of seriousness as far as the sentencing judge was concerned.  I do not have the judge’s sentencing remarks in relation to that offence but it may be inferred from the relatively low non-parole period that she came to that view.

48.     Mr Kenzie also has an unenviable record of relatively petty criminality: drink-driving, damage to property, larceny, common assault and breaking and entering.

49.     The Direction deems an assault to be a serious offence.  It notes that crimes of violence are “of special concern to the safety and welfare of the Australian community”.  However, in this context, I think it important to note that in NSW a “common assault” is regarded as a relatively minor offence.  I do not have the full facts of the “common assault” conviction before me, but two things are worth highlighting.  First, Mr Kenzie pleaded guilty to the offence, demonstrating remorse. Second, that the available evidence is that he was drunk, and acted under some provocation — the victim appears to have made disparaging remarks about his sister.  He reacted to that.  While not to be condoned, this was not gratuitous, callous violence and, in the circumstances, does not suggest a more general threat to the Australian community.

50.     The record of Mr Kenzie’s offences is one of stupid unplanned actions, usually committed under the influence of drugs or alcohol. This is not to say that his offences are insignificant, much less that they should be excused, but their seriousness ought to be viewed in a proper context.  They were not organised crimes, but the immature misdemeanours of a troubled young man who lacked personal insight and empathy for others. 

51.     Although Mr Kenzie’s record is, of course, very troubling and may be interpreted as indicating as the Minister contends that “nothing has changed” (thereby implying that nothing will change to reduce the risk to the Australian community), the evidence is that in fact there have been some significant encouraging changes in Mr Kenzie’s circumstances.

52.     The first is that during his latest period of custody, he received notice that the Australian Government intended to deport him to New Zealand. This has, with other considerations, galvanised him and his family to address his alcohol issues with a new and intensified seriousness compared to previously.  The Minster may regard this as “shutting the gate after the horse has bolted” but, in my view, this is a most significant development.  Mr Kenzie and his family know that, if he were allowed to stay in Australia, he would effectively be on probation.

53.     The second is that his response to his predicament has been to seek help.  It is wrong and perhaps unfair to suggest that if a person has failed in a previous attempt at drug or alcohol rehabilitation, a new rehabilitation proposal alters nothing because the outcome is predictably negative. It is common knowledge that it typically takes a number of attempts for a drug-or alcohol-addicted person, or person who is prone to risk-taking behaviours under the influence of drugs or alcohol, to learn to successfully modify their behaviour. This fact is not, however, evidence that “nothing has changed”.  If a person shows genuine willingness and determination to continue attempting drug rehabilitation despite previous failures, progress is being made.

54.     The third step taken is that his family has increased its support for Mr Kenzie.  The family is itself engaged in the rehabilitation process, which is a learning experience for them as well as for Mr Kenzie.  They are developing strategies both for encouraging him, and for deterring his more aberrant behaviours. 

55.     There is no doubt that his history is troubled and troubling. The evidence demonstrates that there is a possibility that he will relapse, abuse drugs and re-offend.  I think it important to accentuate, however, that while some of Mr Kenzie’s crimes have been serious matters — the robberies in particular — they were impulsive offences.  The measures taken by Mr Kenzie and his family to address his tendency to impulsivity will, if successful, also address the seriousness of the offences.   That is a topic to which I now turn.

56.     While in my opinion the risk that Mr Kenzie might offend could not be characterised as high, nonetheless, the protection of the Australian community weighs in favour of the cancellation of Mr Kenzie’s visa.

B. MR KENZIE WAS A MINOR WHEN HE BEGAN LIVING IN AUSTRALIA

57.     Paragraph 10.2 provides that

(I)    If the person was a minor when they began living in Australia and spent their formative years in Australia, thereby increasing the likelihood of establishment of greater ties and linkages to the Australian community, this is to be given favourable consideration."

58.     Mr Kenzie is 29 years of age and has lived in Australia continuously since arriving in Australia with his family when he was four years of age.

59.     While the Minister acknowledges that this consideration may weigh in Mr Kenzie's favour, he contends the weight it might otherwise be afforded is lessened given that Mr Kenzie has spent nearly five years of his adult life in custody.

60.     While Mr Kenzie has spent a significant amount of his adult life in custody in my opinion given his tender age on arrival in Australia, this factor favours Mr Kenzie. 

C. LENGTH OF TIME ORDINARILY RESIDENT IN AUSTRALIA    

61.     The Direction provides: “More favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character”: par 10.3 (1).

62.     Mr Kenzie has been resident in Australia continuously for 24 years. He had lived in Australia for over a decade when he committed his first offence when aged 15 and half.

63.     In my view, this factor weighs in Mr Kenzie’s favour.

D. INTERNATIONAL OBLIGATIONS 

64.     Paragraph 10.4 of the Direction provides:

(1)    Reflecting Australia's obligations under the CROC, if there is a child in Australia who is potentially affected by a visa refusal or cancellation decision, decision-makers must have regard to the best interests of the child,

(2)    Where relevant, any non-refoulement obligations, including under the Refugees Convention, must be considered.

65.     It is agreed that that the cancellation of Mr Kenzie's visa would not be contrary to Australia's non-refoulement obligations. The best interest of any relevant children is therefore the only relevant consideration.

BEST INTERESTS OF THE CHILD 

66.     The Direction provides that under Australian law, it is generally presumed that a child's best interests will be served if the child remains with their parents: par 10.4.1(4). The Directions lists two factors which may indicate that the child’s best interests are served by separation from the person: evidence that the person has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; or any evidence that the child has suffered or experienced any physical or emotional trauma arising from the person's conduct.  There is no evidence that either factor applies in this case, and nor is that suggested.

67.     Mr Kenzie claims to have four children — two with his long term partner, Ms Micallef and two with other women.  The Direction instructs that where there is more than one child, it is not to be assumed that the interests of each child will coincide; the best interests of each child must therefore be given individual consideration: par. 10.4.1(3).  To preserve their anonymity, I will not refer to the children by name.

CHILDREN WITH MS MICALLEF 

68.     As noted, Mr Kenzie and Ms Micallef have two sons aged three and two years. Both are Australian citizens and have always lived in Australia. Paragraph 10.4.1(5) lists 15 factors to be taken into account in considering the best interests of the child and are considered below.

69.     Nature and duration of the relationship:  There is no issue that Mr Kenzie has parental rights and responsibilities for both sons.  When not incarcerated, he lives with them and Ms Micallef. According to Ms Micallef, he is a loving and devoted father and takes an active role in the lives of the children by among other things, taking them to the park, playing with them, preparing meals and generally taking responsibility for the running of the house. These claims were corroborated by members of their respective extended families.  In a statement prepared for these proceedings, the family day carer — who has known the children for two years and cared for them over the past six months — stated that, in her opinion, the children were happy, healthy and well cared-for. She also stated that while in her care, the children constantly refer to Mr Kenzie and in her opinion “miss him a lot”. 

70.     Mr Kenzie was remanded in custody two months after his second child was born. His eldest son was then was then 11 months old. Since the birth of his sons, he has served three separate custodial sentences totalling 19 months. This means that including his current detention in Villawood he has been apart from his sons for a total of about 21 months. They are now aged 40 and 29 months respectively.

71.     Throughout his most recent period of incarceration, Mr Kenzie has had limited face-to-face contact with his sons, but they have visited regularly when he moved to Villawood about two months ago. According to Ms Micallef, she did not take the children to visit Mr Kenzie in Muswellbrook where he spent most of his last custodial sentence. This was because they found the travelling exhausting, and because Mr Kenzie had asked her not to bring the boys because he didn’t want them to think “gaol was okay or a good place”.  Mr Kenzie testified that while in custody, he spoke to the children and Ms Micallef most nights by phone.  Ms Micallef corroborated that claim.

72.     Likelihood of Mr Kenzie playing a full parental role up until his sons’ 18th  birthday: I accept that Mr Kenzie is committed to playing a full role in the life of his sons until they reach the age of 18 and that Ms Micallef believes that it is in her sons’ best interests that he does so.  Whether he will be capable of playing such a role depends largely on him remaining in Australia and out of gaol.

73.     Likely effect of any separation:  The children have now been separated from their father for over 12 months. There is strong evidence that they miss him and ask after him, but no evidence of any other deleterious effect of the separation.   

74.     Other person who fulfils a parental role: No person apart from Ms Micallef and Mr Kenzie play a parental role.

75.     Impact of Mr Kenzie’s prior conduct on the children: Neither child has been the victim of or has witnessed Mr Kenzie’s criminal conduct.  Apart from one incident, there is no evidence of them witnessing him in a drunk or abusive state.

76.     Known wishes of the children: The children are apparently unaware of these proceedings and their father is facing deportation. I accept that each has indicated that they miss their father, which is suggestive that they wish to resume contact and live with him.

77.     Likelihood of children accompanying Mr Kenzie to New Zealand: Ms Micallef testified that she and the children will remain in Australia if Mr Kenzie is deported. She said while she would find this a very hard decision, she would not countenance leaving Australia because she has stable employment and enjoys a support network in the form of a large and loving extended family.  Furthermore, both she and Mr Kenzie believe that Australia offers the boys greater opportunities than New Zealand.  She testified that she and Mr Kenzie have discussed the matter, and that he supports her decision. Mr Kenzie corroborated that claim.

78.     While it is not possible to exclude the possibility that if confronted with the reality of Mr Kenzie’s deportation, Ms Micallef might change her mind, I think this unlikely. She impressed me as a measured, intelligent and thoughtful young woman who genuinely believes that it is in her children’s best interests to remain in Australia and would ultimately prefer their interests over those of Mr Kenzie (or her own).  Given this finding, it is unnecessary to consider the factors listed in pars. 10.4.1 (5)(m),(n) and (o).

OTHER CHILDREN 

79.     Mr Kenzie claims to have two daughters aged 11 and seven. 

80.     Eldest daughter:  There is no evidence to support Mr Kenzie’s claim that he is the father of this child. Mr Kenzie has not had contact with the child or her mother since 2003. The NSW Minister for Community Services has parental responsibility for the child. On Mr Kenzie‘s account, he had attempted to contact the child through her maternal grandmother over the years without success. He claims that during his time in Villawood, he came to learn that the child was in foster care and thereafter endeavoured to resume contact. He claims to have been in contact with the Departmental officer who supervises the child’s current foster placement, and hopes to arrange a meeting in the near future.

81.     Mr Kenzie claims that if he is allowed to remain in Australia he will explore whether it is possible for the child to come and live with him, Ms Micallef and the boys.

82.     Youngest daughter:  Until the last two months Mr Kenzie had had no contact with his youngest daughter for a number of years. According to Mr Kenzie, contact resumed after the child’s mother learnt that he was about to be deported and contacted him to arrange for the child to get to know her “real father”. The child has visited Mr Kenzie on three occasions. Those visits, according to Mr Kenzie, went well, although he acknowledges that these are “early days”. He claimed that the child’s mother indicated that she was keen for him to have continued contact with his daughter. He claimed to be committed to maintaining that relationship.

83.     Conclusion: Notwithstanding the length of time Mr Kenzie has lived apart from his sons, I am satisfied that that they have formed an attachment to him such that it would be in their best interests for that relationship to continue and for Mr Kenzie to remain in Australia. 

84.     Even if assumed that Mr Kenzie is the father of the purported eldest daughter, it would in my opinion be a parental relationship in name only, as he has played no role in the child’s life. Not only are the wishes of this child unknown, but there is no evidence to indicate that she is even aware of Mr Kenzie‘s existence. It is not possible to speculate on whether the Minister for Community Services would agree to place the child in Mr Kenzie’s care, however a number of factors would weigh against that, including the desirability of maintaining the current placement.

85.     I could not be satisfied that it is in this child’s best interests for Mr Kenzie to remain in Australia.

86.     It is apparent that Mr Kenzie has a qualitatively different relationship with his sons as compared to his relationship with his youngest daughter.  He has played no role in her life until recently.  I accept that Mr Kenzie and the child’s mother wish the relationship to continue.  Her interests would not be as adversely effected as those of the boys, if Mr Kenzie were to be leave Australia. Nonetheless, I accept that it would be in her best interests for him to remain to allow a relationship to develop. 

87.     Summary:  I am satisfied that it is the best interests of Mr Kenzie’s sons and youngest daughter for him to remain in Australia. This factor weighs against cancelling Mr Kenzie’s visa.

OTHER CONSIDERATIONS 

88.     As noted, the Direction states that other considerations, where relevant, must be taken into account but, generally, should be given less weight than primary considerations.

89.     Family ties: I am satisfied that Mr Kenzie has a genuine marital relationship of long standing with Ms Micallef. She has full knowledge of his criminal history and has stood by him. While not financially, physically or (apparently) psychologically dependent on Mr Kenzie, I accept that Ms Micallef would experience intense sorrow and grief if he were to leave Australia. 

90.     I am also satisfied that Mr Kenzie is close to members of his immediate family and that it would cause them pain if he were to be deported.

91.     Age and health: Given his relative youth and good health, in my view these are neutral factors in the decision whether to cancel Mr Kenzie’s visa.  

92.     Links to NZ: Mr Kenzie has few remaining relatives in NZ and has not returned to the country since his arrival. His closest relatives are an aunt and a grandmother. It is claimed that both are in poor health. This factor weighs in Mr Kenzie’s favour.

93.     Education: Mr Kenzie left school after year 8. It is not suggested that Mr Kenzie is unable to advocate on his behalf because of a lack of education.  Nor is there evidence of any material efforts to improve his level of education in order to increase his capacity to contribute to the Australian community. In my opinion, this is a neutral factor.

94.     Notification of possible deportation:    Mr Kenzie received written notice in October 2007 and April 2010 that his criminal conduct could lead to deportation.  He continued to reoffend after the first warning. This factor weighs in favour of cancelling Mr Kenzie’s visa.

DECISION

95.     In exercising the discretionary power to cancel Mr Kenzie’s visa, I must take into account the four primary considerations and any “other” relevant factor and undertake a balancing exercise. In my opinion all but one of the mandatory considerations — the protection of the Australian community — weigh against cancelling Mr Kenzie’s visa.  Of the “other” factors, the most relevant are Mr Kenzie’s family ties in Australia and his few (if any) real ties to New Zealand.  When undertaking this balancing exercise, I must be guided by the general principles set out in the objectives to the Direction, that is — the protection of the Australian community, especially its more vulnerable members, from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.

96.     The protection of the Australian community is to be assessed having regard to both the seriousness of Mr Kenzie’s offences and the risk that the conduct might be repeated.  As reprehensible as his crimes are, and although he has a lengthy and serious criminal history, Mr Kenzie’s history is not that of a professional, organised criminal, but rather that of an immature, impulsive, rather self-destructive young man prone to misbehave when under the influence of alcohol and drugs. He is not habitually violent, and although serious, none of his violent crimes were at the severe end of the scale. Similarly, the robbery offences gravitated towards the lower end  for such crimes.  When caught, he pleaded guilty to his offences, demonstrating a general attitude of remorse. While I do not diminish the importance of the question of the protection of the community, I consider that the threat to the community posed by Mr Kenzie’s offences is considerably lower than if, for example, he had engaged in armed robberies or other planned or organised crimes.

97.     The prospects of long-term rehabilitation are, according to the evidence of Mr Taylor, reasonable.  I agree.  Mr Kenzie has everything to lose if he does not make the effort required of him.  His family has much to lose as well, and appears to be committed to his rehabilitation and willing to take practical and plausible steps to assist him to achieve that aim.  Fortunately, his employment prospects in the current economic climate are also reasonable, and a rehabilitation program is available.

98.     It cannot be said that Mr Kenzie poses no threat to the Australian community.  Nevertheless, my judgment is that if he makes a serious effort at rehabilitation, and I think that there are good prospects that he will, the threat to the Australian community he now poses and may pose in the future is reasonably low. 

99.     For all these reasons, the factors that favour Mr Kenzie appear to me to, on balance, outweigh the potential threat to the community that he poses.  All that said, Mr Kenzie must realise that his future in Australia hangs by a single thread: his rehabilitation. 

100.   Accordingly the decision under review is set aside and I substitute a decision that Mr Kenzie's visa should not be cancelled.

I certify that the 100 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton.

Signed: .................................[SGD]......................................
  Associate to Senior Member Britton

Dates of Hearing:  5-6 August 2010
Date of Decision:  23 August 2010 
Counsel for the Applicant:        Ms A Tibbey
Solicitor for the Applicant:         NSW Legal Aid Commission
Solicitor for the Respondent:     Clayton Utz