Kerry Alan Mackenzie and Minister for Immigration and Border Protection
[2013] AATA 774
[2013] AATA 774
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/4145
Re
Kerry Alan Mackenzie
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Senior Member J L Redfern Date 1 November 2013 Place Sydney The decision under review is affirmed.
...............[sgd].........................................................
Senior Member J L Redfern
CATCHWORDS
MIGRATION – Class TY Subclass 444 Special Category (Temporary) visa – cancellation – character test – discretion to cancel visa – primary considerations – protection of the Australian community – strength, duration and nature of times to Australia – other considerations – decision affirmed
LEGISLATION
Migration Act 1958 ss 499, 501
CASES
Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358; [2010] FCA 1445
SECONDARY MATERIALS
Direction no. 55 – Visa refusal and cancellation under s 501
REASONS FOR DECISION
Senior Member J L Redfern
1 November 2013
Mr Kerry Alan Mackenzie is a 40 year-old New Zealand citizen who has lived in Australia for over 20 years. He moved to Australia in 1992, following his parents and brothers, who migrated to Australia in 1990. Mr Mackenzie was 18 years old when he first arrived and, after returning to New Zealand for three months in April 1993, he settled in Australia from July 1993. He was granted a Class TY Subclass 444 Special Category (Temporary) visa from 1 September 1994, which allows the holder to remain in Australia indefinitely while a New Zealand citizen.
On 28 August 2012 Mr Mackenzie was sentenced to terms of imprisonment of 42 months and 36 months in respect of aggravated break and enter offences committed by him, in company with another, in November 2011. He was taken into custody on 30 November 2011 and has been in prison since this time. Mr Mackenzie has been participating in an intensive therapeutic drug and alcohol program since June 2013, making what his caseworker describes as steady progress. His non-parole period expires in February 2014.
Mr Mackenzie has a long history of criminal offending and has spent more than half his time in Australia incarcerated, with only brief periods over the past five years living in the community. He had a troubled youth while living in New Zealand, has been addicted to drugs for many years and has been described by a sentencing judge and caseworker as “institutionalised”. Given his criminal history, the Department of Immigration and Citizenship, now called the Department of Immigration and Border Protection and formerly called the Department of Immigration and Multicultural Affairs (the Department) reviewed Mr Mackenzie’s immigration status on three occasions, namely in 1999, 2010 and 2011. On each occasion, the delegate decided not to cancel Mr Mackenzie’s visa and instead gave him a formal warning.
Following Mr Mackenzie’s sentencing in 2012 the Department commenced a further review and on 22 February 2013 notified Mr Mackenzie of the intention to consider cancellation of his visa. Mr Mackenzie made representations but on 14 August 2013, a delegate of the Minister for Immigration and Citizenship, now called the Minister for Immigration and Border Protection (the Minister), made a decision to cancel his visa. Mr Mackenzie seeks a review of this decision.
The Minister has discretion to cancel a visa if a person does not satisfy the character test set out in the Migration Act 1958 (Cth) (the Migration Act). Mr Mackenzie does not satisfy this character test because of his criminal history. The issue for determination is how the discretion should be exercised in the circumstances of this case. If Mr Mackenzie’s visa is cancelled, he will be removed to New Zealand.
LEGAL FRAMEWORK
Section 501(2) of the Migration Act provides that the Minister may cancel a visa if “the Minister reasonably suspects that the person does not pass the character test”. Section 501(6) provides that a person does not pass the character test if the person has a substantial criminal record. “Substantial criminal record” is defined in section 501(7) as, among other things, having been sentenced to a term of imprisonment of 12 months or more, or to two or more terms of imprisonment where the total of those terms is two years or more.
Mr Mackenzie has been sentenced to a term of imprisonment for a period of 12 months or more and, as such, has a substantial criminal record. He therefore does not pass the character test and the discretion under section 501(2) is enlivened. This is not in dispute.
Section 499(1) of the Migration Act provides that “the Minister may give written directions to a person or body having functions or powers under this Act” about the performance of those functions and the exercise of those powers. The decision-maker, including the Tribunal, must comply with these written directions (section 499(2A)).
The Minister has delegated the exercise of the discretion under section 501(2) and from time to time has issued written directions under section 499(1) of the Migration Act to decision-makers about the matters to be taken into consideration when reaching a decision to refuse or cancel a visa. On 28 July 2012, the Minister issued a direction, Direction no. 55 – Visa refusal and cancellation under s 501 (Direction no. 55), which came into effect on 1 September 2012. I must therefore apply Direction no. 55 when reviewing this decision.
Direction no. 55 states that the Government is “committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens” (cl 6.2(1)). It also sets out six principles “of critical importance in furthering that objective”, which are stated to “reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable” (cl 6.2(1)). These principles must inform the exercise of the discretion and involve a balancing exercise (cl 7(1)). The principles are as follows:
6.3 Principles
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(4)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(6)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Clause 8 provides guidance about the decision-making process. Decision-makers must have regard to the primary and other considerations as set out in Direction no. 55 and information and evidence from independent and authoritative sources about these matters should be given “appropriate weight”. The primary considerations should generally be given greater weight than the other considerations and one or more of the primary considerations may outweigh other primary considerations. Both primary and other considerations may weigh in favour of, or against, cancellation.
There are four primary considerations, two of which are relevant to this case, being: protection of the Australian community from criminal or other serious conduct and the strength, duration and nature of the person’s ties to Australia. There is no evidence, nor were there any submissions by or on behalf of Mr Mackenzie, that the other two primary considerations, namely the best interests of minor children in Australia and international non-refoulement obligations, are relevant to his case or would be affected by the decision.
The other considerations include, but are not limited to, the effect of cancellation on the person’s immediate family in Australia, the impact on Australian business interests, the impact of a decision not to cancel a visa on members of the Australian community (including victims of the person’s criminal behaviour and family members of the victims) and the extent of any impediments the person may face if removed from Australia.
THE EVIDENCE
The documentary evidence comprised documents served by the Minister pursuant to section 500(6F) of the Migration Act, being documents relevant to the making of the decision to cancel Mr Mackenzie’s visa, and documents summonsed from the New South Wales Department of Corrective Services about Mr Mackenzie’s criminal history and his time in prison. In addition to his own statement, Mr Mackenzie relied on statements from his mother, his grandmother and Terry Lucey, an Alcohol and Other Drug Worker from Long Bay Correctional Centre. Mr Mackenzie, his mother and Mr Lucey also gave oral evidence in relation to the matters raised in their statements.
Mr Mackenzie was born in New Zealand in 1973. He lived with his parents, Trevor Mackenzie and Lynette Mackenzie, and two older brothers. He commenced offending when he was 15 years old and spent several months in non-residential periodic detention soon after his 17th birthday. He was convicted on several counts of shoplifting, burglary, receiving stolen property and theft in 1991 and, in December of that year, was sentenced to 9 months’ imprisonment. According to Mrs Mackenzie, the family moved to Australia in 1990 for her husband’s work. Mr Kerry Mackenzie was unable to accompany them at that time because of his various criminal sentences. When Mr Mackenzie was released from prison in 1992, he followed his family to Australia. Mrs Mackenzie said that she knew there may be problems in her son being allowed to live in Australia given his criminal history and was relieved when he was allowed entry and residency. If this had not been the case, she would have returned to New Zealand to make special arrangements for him to stay with relatives.
After he arrived in Australia Mr Mackenzie lived with his parents for a few years and worked in his father’s business. He and his father argued and Mr Mackenzie moved out of his parent’s home in about 1994. At about that time he was convicted and fined for driving offences. In 1996 he was convicted of several dishonesty offences, namely break enter and steal and larceny, and on 6 December 1996 he was sentenced to 18 months’ periodic detention. He was also ordered to pay compensation of $9,840. On 28 November 1997, the sentence of periodic detention was cancelled and Mr Mackenzie was sentenced to 50 weeks’ imprisonment. He was released on 11 February 1999.
According to Mr Mackenzie he became involved with drugs in about 1999 and his need to purchase drugs was the motivation for his continual offending from this time.
On 30 November 1998 the Department sent a letter to Mr Mackenzie advising that he may be liable for deportation from Australia because of his previous criminal convictions. Mr Mackenzie made representations to the Department, as did Mrs Mackenzie.
On 15 April 1999, the Department notified Mr Mackenzie that the Minister’s delegate decided not to order his deportation on the basis of his convictions but noted as follows:
Nevertheless you are warned that any further conviction will lead to the question of your deportation being reconsidered. Disregard of this warning will weigh heavily against you in the event of your case being re-opened.
Mr Mackenzie lived in the community for most of 1999. He was in a relationship with a woman with two children at that time and they lived together. On 14 December 1999, police were called to their home to investigate allegations of domestic violence. It was alleged Mr Mackenzie had assaulted his partner. Mr Mackenzie was subsequently charged with common assault together with various driving related offences, of which he was convicted on 31 May 2001. Mr Mackenzie denies the allegations of assault and said that he pleaded guilty to this charge so that any sentence could be served at the same time he was serving sentences for other crimes. Notwithstanding this denial, the Tribunal was provided with a detailed fact sheet from the New South Wales Police Service in respect of this incident outlining violent behaviour by Mr Mackenzie including putting his hands around his partner’s throat, pushing her to the ground and hitting her.
In January 2000, Mr Mackenzie, in company with a younger co-offender, and while on bail committed two robberies. According to the sentencing remarks of his Honour Judge Karpin in the District Court of New South Wales, the first incident involved a man walking through Parramatta Mall towards the railway station. He was approached by Mr Mackenzie and his co-offender and was tripped up. The co-offender placed what the victim believed to be a knife against his torso while Mr Mackenzie removed the victim’s wallet from his pocket. He was then forcibly taken to a nearby automatic teller machine where he was forced to reveal his pin number and withdraw $300. He was forced to withdraw another $40, which was subsequently returned to the victim. The victim was uninjured but was very frightened. The second offence occurred a short time later when Mr Mackenzie and his co-offender approached a woman who was withdrawing money from an automatic teller machine. Mr Mackenzie and the co-offender approached the victim from behind, and Mr Mackenzie held a knife to her throat and said words to the effect, “Give me your money or I’ll cut your throat”. The victim struggled, her partner came to her aid and Mr Mackenzie and his co-offender fled. There were subsequently arrested and on 3 November 2000 Mr Mackenzie was convicted and sentenced in respect of two counts of robbery in company.
In sentencing Mr Mackenzie, Judge Karpin made the following observations about the second victim’s impact statement:
It is impossible not to feel sympathy for the victim’s reaction, it is entirely justifiable that the victim of such a crime should feel a sense of outrage. Her rights, as a member of the community, to walk freely in the streets and conduct her business without fear or apprehension have been violated by these prisoners. These prisoners, of course, played the most substantial part in the offence against [Ms D].
Her victim impact statement reveals that she has been profoundly affected by the experience. She has been undergoing counselling and feels that it has adversely affected her relationships and played a part in the breakdown of her relationship with her partner. It is hardly surprising to read that she is far too frightened to use an ATM night, has a horror of violence, many nightmares, and generally feels that her quality of life has been adversely affected by this terrifying experience.
Judge Karpin described the offences “as serious offences which call for severe punishment”. Mr Mackenzie was sentenced to three years’ imprisonment (with a non-parole period of 18 months) in respect of the first offence and four years’ imprisonment (also with a non-parole period of 18 months) in respect of the second. He was released on 18 July 2001.
Thereafter there was no criminal activity recorded until August 2002 (when Mr Mackenzie breached Drug Court conditions and was sentenced to eight days in Parramatta Correctional Centre) and January 2003 (when Mr Mackenzie was charged with stealing a motor vehicle, damaging property and driving whilst disqualified). He was sentenced for these latter various offences and was imprisoned from January 2003 until 29 June 2004, when he was released on parole. Mr Mackenzie reoffended in October and November 2004 and on 14 January 2005 a warrant was issued for his apprehension and detention. He was imprisoned from February 2005 until November 2005, when he was again released on parole.
Mr Mackenzie lived in the community until September 2008, when he was taken into custody and charged with stealing property in a dwelling, stealing a motor vehicle and being in possession of good suspected of being stolen. He was sentenced on 5 March 2009 to a total of 20 months’ for these offences and for the breach of bonds for offences dating back to 2006. The bonds related to a conviction in 2007 for larceny (Mr Mackenzie siphoned petrol out of a person’s car for use in his own car), contravening an apprehended domestic violence order against his partner, common assault and stalk/intimidate with intent to cause physical/mental harm. These latter offences arose out of previous convictions for violence by Mr Mackenzie against his former de facto partner. It was alleged that Mr Mackenzie was physically abusive to his partner and put his hands around her neck. The stealing offences in 2008 were perpetrated by Mr Mackenzie while in the home of a friend and were described by the sentencing magistrate as “truly reprehensible”.
The sentences were served concurrently and Mr Mackenzie was released on parole on 30 April 2009.
On 16 March 2009, the Department of Immigration and Citizenship notified Mr Mackenzie of the intention to consider cancellation of his visa because of his criminal misconduct and convictions.
Mr Mackenzie retained lawyers to act on his behalf and his lawyers sent a letter to the Department dated 14 April 2009. That letter addressed the matters that were required to be taken into consideration in accordance with the Direction that was current at that time.
Mr Mackenzie also made his own representations in a letter dated 23 March 2009 advising the Department that he had “matured” as a result of his incarceration. Mrs Mackenzie and her mother, Mrs Dorothy Smith, wrote letters of support for Mr Mackenzie, with Mrs Mackenzie requesting that her son be given a second chance.
The matter was considered by a delegate of the Minister who requested that a full issues paper to be prepared. There was a delay in the preparation of the issues paper and by this time further information was available to the Department that Mr Mackenzie had breached parole within months of his release in October 2009 and was remanded in custody until July 2010.
Mr Mackenzie was interviewed by an officer of the Department in July 2010. In response to the question “What do you think is the likelihood that you may reoffend? Please give reasons for your answer”, Mr Mackenzie responded as follows:
Mr Mackenzie stated that he has had enough of his life and wants to reform and … regrets that he re-offended and returned to prison. Mr Mackenzie stated his family are very supportive and he has a close relationship with his mother, grandmother and 2 brothers. He added that his drug use contributed to his offending and is confident that he would not re-offend if he abstained from drug use. He stated that he accepts that he needs to learn to deal with stress differently and hopes that one-on-one counselling will help him with this.
Notwithstanding this further breach of parole, the Minister’s delegate decided not to cancel Mr Mackenzie’s visa and instead decided to warn him about his conduct. A letter dated 6 August 2010 was sent to Mr Mackenzie advising his visa would not be cancelled. The letter included a warning he was required to acknowledge to the following effect:
I understand that I can again be considered for refusal or cancellation of any visa granted to me if further information of relevance comes to the attention of the Department at any time in the future and that if this happens, my past conduct and previous relevant information can also be reconsidered.
I note there was no signed acknowledgement in the documents before the Tribunal but Mr Mackenzie did not dispute he had a received a number of warnings.
During the period of the review of whether to cancel his visa Mr Mackenzie breached parole, committed further offences and appeared before courts on at least three occasions. Within a month of his second warning he had offended again. Mr Mackenzie was imprisoned for eight months during 2010 and most of 2011, serving various sentences for offences committed during 2009 and 2010 when he was living in the community. When sentencing Mr Mackenzie for break and enter offences in February 2011 Magistrate Holdsworth noted as follows:
In terms of specific deterrence it is true to say that Mr Mackenzie has similar matters on his record. Including ones for which he has served sentences of imprisonment and the offence of break and entry is a serious offence, which, even though this one was committed on … business premises, the community is entitled to accept that appropriate sentences will be imposed to send a message to all persons that this behaviour is unacceptable. Even though the defendant was not successful in receiving any proceeds of this break and enter, certainly there was damage to the premises, and there was a clear intention to make away with property had Mr Mackenzie been successful in his endeavour.
On 10 June 2011, the Department of Immigration and Citizenship notified Mr Mackenzie of the intention to consider whether his visa should be cancelled. Mr Mackenzie made representations to the Department to the following effect:
After arriving in Australia in my late teens, I have led a pretty pathetic and defunctional [sic] life. Being in the wrong crowd led to drugs, pretty crimes and in and out of jails etc. I have caused tension and difficulties for my parents and eventually led to being disowned by my own father. I do not blame anyone else but myself for being not strong enough to refuse the various temptations. I have reached a point in my life that I genuinely want to turn a new page and make something of myself… I have not touched any drugs in the 12 months I have been in jail, and for the first time in my life I really feel good within myself.
There were also letters of support from Mrs Mackenzie and from Mr Mackenzie’s caseworker, Deborah Bushnell. The Minister’s delegate decided not to cancel Mr Mackenzie’s visa and by letter dated 24 August 2011 gave a warning to him in the same terms as the 2010 warning.
Within months of receiving this letter, Mr Mackenzie committed further offences. In November 2011 he and a co-offender broke into the car park of a unit complex, smashed the window of the driver’s door of a car. They stole items from the vehicle. A few days later they committed a similar offence in another car park. The police executed search warrants at Mr Mackenzie’s premises and found a large amount of stolen property including a BMX bike, a hi-fi system, car speakers, a road bike, shelving, chairs and a Persian rug. According to Mr Mackenzie, his drug taking was the motivation for these stealing offences. When cross-examined in these proceedings about the large number of items found in his home, Mr Mackenzie said that some of these items were personal items given to him by his mother and grandmother, but conceded that the majority were stolen. He said that these goods had been stolen over a period of about a week.
Mr Mackenzie was convicted on multiple charges of aggravated break and enter and goods in custody charges on 28 August 2012. He was sentenced to 42 months’ and 36 months’ imprisonment in respect of these charges, to be served concurrently. Mr Mackenzie has been in prison in relation to these charges since 30 November 2011.
In sentencing Mr Mackenzie, his Honour Judge Sides of the District Court of New South Wales stated as follows:
The Offender, during his evidence, said the motive of the offences were to sell the property stolen in order to obtain money for drugs. However, the number and nature and value of the goods covered by the Form 1 matters suggest that this was not necessary at the time he committed these offences...
Notwithstanding his evidence about his future intentions, the Court remains highly pessimistic about his prospects of rehabilitation and not reoffending. The Court noted, that over the past twelve years or so, he has spent a considerable period of time in custody. It is satisfied that if he is not already institutionalised, he is at risk of becoming institutionalised.
Mr Mackenzie worked in various jobs over the years, but most were casual short-term jobs which were invariably less than a year in duration, with the exception of employment as a chef at Moto Farm Hotel for 12 months and work with his father. When he was not working, Mr Mackenzie received government benefits.
Mr Mackenzie said that his time in prison over the last 22 months has made an impact on him. It had been “very tough this time round”. When he had previously left prison he had limited support and had therefore reoffended. Things would be different when he was released in February 2014 because he has changed. He has “had enough”. According to Mr Mackenzie he is drug-free. He volunteered to participate in the Ngara Nura program because he wanted to make a change. This program was teaching him about himself and his addictions. When Mr Mackenzie leaves prison, he is proposing to undertake a further rehabilitation program at Glebe House. He was also proposing to enrol in a TAFE course to become a qualified chef. He enjoys cooking. He had enrolled in the course prior to his current incarceration and was disappointed that he could not complete the course. It would be very difficult for both him and his mother if he were forced to return to New Zealand. He has no family or friends in New Zealand. Mr Mackenzie acknowledged that he was warned by the Department on several occasions that his visa may be cancelled if he reoffended. He “tried his hardest” not to reoffend but could not think clearly because of his drug addiction. He wanted to renew his relationship with his father and to make a fresh start.
Terry Lucey has worked with Mr Mackenzie since 24 June 2013, when he commenced the Ngara Nura program. According to Mr Lucey, Mr Mackenzie has shown a “willingness to participate to the best of his ability” and “has done all that has been asked of him”. The Ngara Nura program is an intense therapeutic program which allows participants to explore issues that have not previously been explored in other rehabilitation programs. It is based on abstinence. Mr Mackenzie displayed a positive attitude and Mr Lucey said that he wished there were more participants like Mr Mackenzie in the program. Relapse was common in people who are addicted and this was part of the process. He has spoken to Mr Mackenzie’s previous caseworker, Ms Bushnell, and she had told him that when Mr Mackenzie was released she was prepared to provide ongoing support for Mr Mackenzie to assist him to live in the community. Mr Lucey said that he had spoken to Mr Mackenzie about the possibility of returning to New Zealand. Initially Mr Mackenzie was not prepared to consider this but in recent times he had discussed strategies about coping. This showed Mr Mackenzie was maturing. Mr Mackenzie has not incurred any correctional centre misconduct charges during his current incarceration and has had no “dirty” drug tests since 2009.
Mr Lucey did not comment, but nor was he asked, about the risk that Mr Mackenzie would reoffend after he left Long Bay Correctional Centre.
Mrs Mackenzie said that she was very concerned about what would happen to Mr Mackenzie if he was forced to return to New Zealand. Her husband had disowned Mr Mackenzie and her husband’s family, who were the only living relatives in New Zealand, had also disowned Mr Mackenzie. There were no family or friends to support him in New Zealand. She is in regular contact with Mr Mackenzie and recently visited him on his birthday. She has noticed a change in attitude – he has grown up. Mrs Mackenzie said that her husband and her son had been estranged for many years and this made it difficult for Mr Mackenzie to make contact with the family. She acknowledged that it would not be possible for Mr Mackenzie to return to live with her and her husband in their home on his release. Mrs Mackenzie said she would continue to support her son but this would be difficult to do if he was forced to return to New Zealand. She was devastated when Mr Mackenzie was arrested and imprisoned and would be devastated if he was deported. She has been seeing a doctor to help her cope. Mrs Mackenzie made an impassioned plea as a mother for Mr Mackenzie to be allowed to remain in Australia and be given another chance.
SUBMISSIONS OF THE PARTIES
Mr Mackenzie agreed he had a long criminal history and accepted that he had been repeatedly warned that his visa may be in jeopardy if he reoffended. He also accepted that he had thrown away the last 15 years of his life. He now wanted to turn his life around and believed that he could make a contribution to the Australian community if he was allowed to stay. He had spent over 20 years of his life in Australia and this was his home. He would have no support in New Zealand and all the work that he had done on the Ngara Nura program would be lost if he was sent back to New Zealand. Furthermore, his mother would be very upset. He would not reoffend and should be given another chance.
The Minister contended that the protection of the Australian community weighed heavily in favour of cancelling Mr Mackenzie’s visa. The Minister accepted that Mr Mackenzie has lived in Australia half his life but contended that Mr Mackenzie had commenced offending within two years of arriving in Australia and was a repeat offender who had spent much of his adult years in prison. This weighed against him. The only other considerations that were relevant was the impact of cancellation on immediate family members in Australia and the question of whether Mr Mackenzie would face any impediment if he were to return to New Zealand. The Minister accepted that cancellation of Mr Mackenzie’s visa would have a negative impact on both Mr Mackenzie and his family but submitted that this impact did not outweigh the primary considerations, which were in favour of cancellation.
PRIMARY CONSIDERATIONS
Protection of the Australian community
Clause 9.1(1) of Direction no. 55 provides that decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm. It is further stated that:
Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
In considering the protection of the Australian community, regard must be had to the nature and seriousness of the person’s conduct and the risk to the Australian community should the person commit further offences or engage in other serious conduct (cl 9.1(2)).
Any conduct that forms the basis of a finding that a person does not pass the character test is considered to be serious (cl 9.1.1(1)(d)). Regard must be given to the sentence imposed, the frequency of the person’s offending and whether there is any trend of increasing seriousness and the cumulative effect of repeated offending (cl 9.1.1(1)(e) – (g)). Violent and/or sexual crimes are viewed very seriously (cl 9.1.1(1)(a)) and crimes committed against vulnerable members of the community (such as minors) are serious (cl 9.1.1(1)(b)). Relevantly cl 9.1.1(1)(i) provides that when considering the nature and seriousness of a person’s criminal offending decision-makers must have regard to:
Whether the person has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the person’s migration status…
In considering whether a person represents an unacceptable risk of harm to the Australian community, decision-makers should have regard to the principle that tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases (cl 9.1.2(1)). Clause 9.1.2 provides that in making this assessment decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and
b)the likelihood of the person engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the person re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence…
Mr Mackenzie has been convicted of over 60 offences in the past 20 years and has served nearly 11 years in prison. He has breached multiple parole orders and good behaviour bonds and has reoffended within months of being warned by the Department about the possible consequences of committing further offences. His pattern of offending has escalated in severity since 2000 because of its frequency.
While the majority of Mr Mackenzie’s criminal convictions can be described as dishonesty or driving offences, it is necessary to review his convictions to assess the nature and seriousness of his criminal conduct over the past 20 years.
The robberies in November 2000 were violent in that both victims were threatened with a weapon. Mr Mackenzie denies the seriousness of his involvement in the robberies and asserts that his co-offender was the main perpetrator. I do not accept his evidence. It is uncorroborated and is inconsistent with the statement of facts prepared for the purpose of the sentencing hearing before Judge Karpin that was produced by the Department of Corrective Services. I note that these facts were accepted by Judge Karpin as an accurate account of the nature and extent of Mr Mackenzie’s criminal offending. Both victims were understandably frightened by the robberies and there is evidence that the second victim suffered ongoing psychological harm.
There were further convictions for domestic violence and assault against two former partners. Mr Mackenzie denies the first incident but he was convicted of common assault in 2001 and I cannot go behind this conviction and sentence (refer Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358; [2010] FCA 1445). Mr Mackenzie concedes the second incident.
As noted in cl 9.1.1(1)(a) of Direction no. 55 violent crimes should be “viewed very seriously”.
Notwithstanding that a number of Mr Mackenzie’s offences involved violence towards members of the Australian community, the majority did not. Most of his offences were break and enter or stealing offences together with numerous driving offences for driving dangerously or recklessly and driving unlicensed or uninsured. The driving offences have the potential to cause harm and the dishonesty offences caused loss and damage to a significant number of people within the Australian community given the frequency of these offences over the years.
I find that Mr Mackenzie’s criminal offending over the past 20 years was serious having regard to the cumulative effect of his repeated offending (cl 9.1.1(1)(g)), the nature and frequency of his offences (cll 9.1.1(1)(a), (d) and (f)), the violence that featured in some of those offences (cl 9.1.1(1)(a)), the severity at least two of the sentences imposed (cl 9.1.1(1)(e)) and the fact that many of his offences were committed after he was formally warned about the consequences (cl 9.1.1(1)(i)).
The further matter to consider is the risk to the Australian community if Mr Mackenzie were to commit further offences or to engage in other serious conduct.
The Minister submitted, and I accept, that there is a high risk Mr Mackenzie will reoffend once he is released. Mr Mackenzie has been participating in a therapeutic rehabilitation program and is making good progress. He is apparently motivated and wants to make a new start. He has undertaken a number of courses to improve his skills and is confident he will not reoffend. I accept that Mr Mackenzie is genuine in his belief and intent. Against this, Mr Mackenzie has a long history of repeated offending after being given a several opportunities. There have been multiple breaches of good behaviour bonds and breaches of immigration warnings. Mr Mackenzie has previously given similar reassurances yet has reoffended within months. According to documents produced by the Department of Corrective Services, Mr Mackenzie has been supported after his release from prison. In the past five years, Mr Mackenzie has spent less than 12 months in the community and has reoffended on each occasion. As noted by Judge Sides in August 2012, Mr Mackenzie’s prospects, notwithstanding his stated intentions, evokes pessimism.
Having regard to this risk, the issue for consideration is whether the nature of the risk is “unacceptable”. As noted in cl 9.1.2(1) of Direction no. 55, “decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases”.
Given Mr Mackenzie’s criminal history, the nature of harm to the Australian community is most likely to be loss or damage to property, although it should be noted that there is a potential for physical harm if Mr Mackenzie continues to engage in reckless or dangerous driving offences. There is also the potential for physical harm if Mr Mackenzie continues to commit robbery and break and enter offences where those activities are interrupted or resisted by victims. In my view, the frequency of Mr Mackenzie’s offending in the past increases the seriousness of the potential harm to the Australian community in the future. If Mr Mackenzie maintains a similar pattern of offending when he is released more people are likely to be affected by his criminal activity. Even though Mr Mackenzie has spent limited time in the community in the past five years, his criminal offending has affected a significant number of people. He has broken into their homes or their cars and stolen their cars other valuable items on at least 10 different occasions. This is likely to have had an impact on each victim. In my opinion this risk would be unacceptable to the Australian community.
Having regard to these matters, I find that the consideration of the protection of the Australian community weighs heavily in favour of cancelling Mr Mackenzie’s visa.
Strength, duration and nature of ties to Australia
Clause 9.2 of Direction no. 55 provides that when exercising the discretion under s 501 of the Migration Act, decision-makers must have regard to:
a)How long the person has resided in Australia, including whether the person arrived as a young child, noting that:
i. Less weight should be given where the person began offending soon after arriving in Australia; and
ii. More weight should be given to time the person has spent contributing positively to the Australian community.
b)The strength, duration and nature of any family, social and/or employment links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
As noted in the cl 6.3 principles, “a higher level of tolerance” of criminal or other serious conduct may be afforded in relation to a non-citizen who has lived in the Australian community for most of their life or from a very young age. The length of time a non-citizen has been making a “positive contribution to the Australian community” and the consequences of a visa cancellation on minor children and immediate family members in Australia are also relevant considerations.
Mr Mackenzie was a young adult when he arrived in Australia but spent most of his formative years in New Zealand. He has lived in Australia for nearly 21 years but has spent more than half of this time in prison. There is evidence that Mr Mackenzie made some contribution to the community through employment but his work history has been scant and Mr Mackenzie’s evidence was to the effect that he supported himself and his addiction through stealing. Mr Mackenzie commenced offending within two years of arrival in Australia and from 1996 he is recorded as having committed criminal offences in each year that he was living in the community.
I accept that Mr Mackenzie has strong ties to his mother and grandmother, who have an indefinite right to remain in Australia. In contrast, there is no evidence of significant social or employment links to Australia or involvement in the community.
According to cl 8(3) of Direction no. 55, both primary and other considerations may weigh in favour of, or against, cancellation of a visa. On balance, I find that this consideration weighs in favour of cancellation, or the least, is neutral.
OTHER CONSIDERATIONS
Clause 10 of the Direction no. 55 provides a non-exhaustive list of “other considerations” that must be taken into account, if relevant. There are four considerations listed, of which two are said to be relevant to Mr Mackenzie.
The first non-primary consideration listed in cl 10 is the effect of cancellation on the person’s immediate family in Australia, if those family members are Australian citizens, permanent residents or people who have a right to remain in Australia indefinitely (cl 10(1)(a)). I accept Mrs Mackenzie’s evidence and find that the cancellation of Mr Mackenzie’s visa and his removal to New Zealand would have a significant impact on her. She is very worried about his wellbeing and, given Mr Mackenzie’s history of addiction and his apparent lifelong propensity to make bad decisions, her anxiety is understandable. Concern about how Mr Mackenzie will cope is at the heart of her plea. Unfortunately, Mrs Mackenzie’s support has not stemmed Mr Mackenzie’s criminal offending but I accept Mrs Mackenzie will feel more able to assist her son if he is living in Australia. I also accept she will be very upset if he is forced to leave and this may affect her health.
The Minister contended that the only other non-primary consideration that was relevant to Mr Mackenzie’s case was the fourth matter set out in cl 10(1)(d), namely the extent of any impediments that the person may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards. There are no significant impediments to Mr Mackenzie in returning to New Zealand given that the basic living standards between New Zealand and Australia are similar and there are no language or cultural barriers. I accept that Mr Mackenzie will not have the support of his mother and grandmother or family in New Zealand but I note that he was educated in New Zealand and spent most of his formative years there.
The key issue of concern is that Mr Mackenzie may not have the same support in New Zealand as available to him in Australia as part of his conditions of parole. This may be an impediment to Mr Mackenzie establishing himself in the community having regard to his addiction. Relevantly, he has a caseworker who is prepared to assist him on his release and he has a plan to undertake further rehabilitation at Glebe House. Support may be more difficult for him to access in New Zealand because he will not be within the supervisory oversight of the New South Wales Probation and Parole Service and may not be familiar with the support services available to him. There is no evidence about whether authorities in New Zealand will identify this issue and provide the necessary support. In the absence of such evidence, I conclude that Mr Mackenzie may well face an impediment to his rehabilitation, which may be detrimental to his ability to establish himself, if his visa is cancelled and he is forced to return to New Zealand.
On balance, these considerations weigh against cancellation of Mr Mackenzie’s visa.
CONCLUSION
Mr Mackenzie’s strong ties to his mother and the negative impact the cancellation of his visa (and consequential return to New Zealand) is likely to have on his mother and grandmother and possibly his rehabilitation are considerations that weigh against cancellation. In contrast, the protection of the Australian community weighs heavily in favour of cancellation. Moreover, I do not find that Mr Mackenzie’s ties to Australia, notwithstanding the length of time he has lived here, weigh against cancellation. The protection of the Australian community is a primary consideration and under cl 8(4) such a consideration should generally be given greater weight than the other considerations. Given the seriousness of Mr Mackenzie’s criminal offending, the potential risk of harm to the Australian community and the fact Mr Mackenzie does not have significant ties with the Australian community apart from his mother and grandmother, I find that these considerations outweigh the other matters that are in his favour.
Weighing all the relevant considerations in this matter I therefore conclude that the correct or preferable decision is that the decision of the delegate should be affirmed.
74. I certify that the preceding 73 (seventy-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member J L Redfern.
.............[sgd]......................................
Associate
Dated: 1 November 2013
Date of hearing 17 October 2013 Applicant In person Solicitor for the Respondent Ms L Leerdam, DLA Piper Australia
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