Kertz and Minister for Immigration and Multicultural Affairs
[2006] AATA 247
•15 March 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 247
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/1634
GENERAL ADMINISTRATIVE DIVISION ) Re HARALD KERTZ Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal The Hon R N J Purvis, AM Q.C, Deputy President Date15 March 2006
PlaceSydney
Decision The reviewable decisions are set aside.
[Sgd] The Hon RNJ Purvis, AM Q.C
Deputy President
Administrative
Appeals
Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/1634
GENERAL ADMINISTRATIVE DIVISION )
Re
HARALD KERTZ
Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
ORDER [2006] AATA 247
Tribunal The Hon R N J Purvis, AM Q.C., Deputy President Date28 March 2006
PlaceSydney
WHEREAS:
1. The Tribunal released a written decision in this matter, which was dated 15 March 2006.
2. It has come to the Tribunal’s attention that there was an error in the decision.
3. The Tribunal wishes to amend the written decision so as to rectify this error and wishing to do so with the least cost and inconvenience to the parties, applies the provision of section 43AA of the Administrative Appeals Tribunal Act1975.
NOW THE TRIBUNAL THEREFORE ORDERS that:
1.Paragraph 1 of the reasons for decision be replaced with the following:
1.Mr Harald Kertz (“the Applicant”) seeks by this application to have the Tribunal review the decision by the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (as she then was) (“the Respondent”) dated 19 December 2005 to cancel both his transitional (permanent) visa and his absorbed person visa which decision was made in substitution for the earlier decision of the Respondent made on 4 March 2003 to cancel his transitional (permanent) visa under the Migration Act 1958 (“the Act”).
[SGD] The Hon R N J Purvis, AM Q.C.
Deputy President
CATCHWORDS
IMMIGRATION – cancellation of transitional (permanent) visa and absorbed person visa – Applicant not of good character – serious risk of recidivism – protection of Australian community – expectations of Australian community – measurable hardship to the Applicant – decisions under review are set aside.
Migration Act 1958 section 501, 34, 198
Nystrom v Minster for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 420
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 92 ALR 93
Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) ALD 441
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
REASONS FOR DECISION
15 March 2006
The Hon R Purvis, AM Q.C
Deputy Presidentthe application
1. Mr Harald Kertz (“the Applicant”) seeks by this application to have the Tribunal review decisions of the Minister for Immigration and Multicultural and Indigenous Affairs (as she then was) by her Delegate (“the Respondent”) made on the 4th of March 2003 and the 19th of December 2005. The former decision cancelled the transitional (permanent) visa previously held by the Applicant and the latter an absorbed persons visa held by the Applicant as a consequence of section 34 of the Migration Act 1958 (“the Act”).
2. The visas were cancelled pursuant to section 501(2) of the Act. A consequence of the cancellation of the visas is that the Applicant could be liable to be deported to Germany. He is presently detained at Villawood Detention Centre and has been so since his release from custody on the 16th of December 2005.
3. The Statement of Reasons of the Respondent supporting the cancellation of the absorbed person’s visa consisted, among other findings, of the following. They are referred to as they highlight matters of concern in this appeal. They are relevantly:
“Seriousness and nature of conduct
3.Mr Kertz’s criminal history commenced in 1977 at the aged of 18 years. His criminal convictions are extensive and had been escalating in severity. His most recent offence was the sexual assault of a woman while he was armed with a shotgun.
4.I believe that Mr Kertz’s offences were very serious (with reference to paragraph 2.6 of the Direction) and that the Australian community is entitled to be protected from the possibility of such conduct recurring. Therefore I gave great weight to this consideration.
Risk of the recidivism
5.I noted that Mr Kertz’s criminal history was extensive - having commenced in 1977 and continued to the present.
6.I further noted that Kertz has previously been considered for deportation where he was issued with a warning. However, Mr Kertz continued to commit serious criminal offences subsequent to this.
…
[8] However, given the extensive nature of Mr Kertz’s criminal record and the absence of any concrete proof that he has, in fact, reformed, I find that there was still a risk that he would re-offend.
[9] Furthermore given the nature of Mr Kertz’s offences and their effect on the community, I considered that this risk was unacceptable, and I placed considerable weight on this consideration.
…
[12] I also accept that the Australian community would have some compassion for Mr Kertz’s situation. Mr Kertz has resided in Australia since March 1970, he has his parents and siblings in Australia and claims to have no family or friends in Germany who could assist him with resettlement. He therefore has no significant ties to any country other than Australia. His significant ties with Australia are reflected in the fact that he holds an absorbed person visa (by s 34 of the Migration Act) which is taken to have been granted to a person who had ceased to be “immigrant” before 2 April 1984.
[13] However, in view of the serious nature of Mr Kertz’s most recent offences, I was more inclined to believe that the Australian community would expect Mr Kertz’s visa to be cancelled and that he be removed from that community. I gave moderate weight to this consideration.
…
[24] In reaching my decision I concluded that the continuous nature and seriousness of Mr Kertz’s crimes over an extended period and, in particular, the possibility that he might re-offend were the overriding considerations. These outweighed the closed ties Mr Kertz has with Australia reflected in his holding an absorbed person visa the best interests of Mr Kertz’s children and the effect that a cancellation decision might have on his family and friends.
…”
the issues for determination
4. The Applicant by his Counsel did not argue the question of good character. The criminal history of the Applicant evidences that he is a person not of good character within the meaning of section 501(6) of the Act.
5. Accordingly the issues for determination in this application identified by the representative of the parties are those specified in Ministerial Direction 21. The relevant primary considerations are the nature and seriousness of the Applicant’s criminal conduct which is relevant to the protection of the Australian community as well as questions of recidivism, together with the expectations of that community. There are two children. There are other considerations that I am to take into account and those that relate specifically to this matter they include any possible disruption for the Applicant’s family living in Australia if deportation should eventuate, hardship to the Applicant and his family and its composition, any evidence of rehabilitation and good conduct on the part of the Applicant, the nature of the Applicant’s visas and the purpose and duration of the Applicant’s stay in Australia including any compassionate considerations.
the hearing
6. Mr Ian Archibald of Counsel appeared on behalf of the Applicant. Mr Leonard Leerdam, solicitor of Phillips Fox Lawyers appeared on behalf of the Respondent. The documents required to be lodged by the Respondent with the Tribunal and provided to the Applicant pursuant to section 501G of the Act were admitted into the evidence and marked G1-G13, S1-S15. Documentary material tendered on behalf of the parties and received as the exhibits comprised the following:
Exhibit No
Description
Date
A
Statement by Reverend Esther Smart
18 January 2006
B
Letter of Ron Arthur to Ms Vidler
3 February 2003
C
Letter of Dr A Kalnins
4 January 2003
D
Supplementary pre-lease reports
Various
E
Report of Paula Farrugia
1 February 2006
F
Statement in support of from Franz & Ruth Kertz
22 January 2006
G
Westmead Vascular Laboratory
22 April 2004
H
Statutory declaration of Reverend Esther Smart
1 February 2006
J
Family Register Certificate
K
Telefax from Consulate General of FDG
2 February 2000
L
Telefax from Consulate General of FDG
5 September 2000
1
Statements of Mrs X from District Court
19 March 1995 19 April 1995
7. The Applicant, Reverend Esther Smart, Minister of the United Church, the Applicant’s father Mr Frank Kertz, a close friend Mr James Alexander, and an Educational Psychologist Ms Paula Farrugia gave oral evidence for the Applicant on which they were each cross examined.
removal power and section 198 of the act
8. On behalf of the Applicant it was contended that section 198(2A) of the Act “expressly stipulates the power to remove a person whose visa has been cancelled by the Minister personally”. It does not, it is said, contain any provision for the removal of a person whose visa has been cancelled by a Delegate of the Minister.
9. The Tribunal in this matter is reviewing the decisions to cancel the Transitional (Permanent) Visa and the absorbed person visa held by the Applicant. It is not reviewing any decision to deport an individual even be it deportation is seen as a possible consequence of the visa cancellation.
10. The submission thus has no relevance to the matter presently before the Tribunal.
relevant statutory provisions and ministerial direction
11. Section 501 of the Act relevantly provides that:
“Refusal or cancellation of visa on character grounds
Decision of Minister or delegate—natural justice applies
…
(2) The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.
…
Character test
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or
(b) …
(c) having regard to either or both of the following:
(i) the person's past and present criminal conduct;
(ii) the person's past and present general conduct;
the person is not of good character; or
(d) in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i) engage in criminal conduct in Australia; or
…
(v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.
Otherwise, the person passes the character test.
Section 501(7) provides that:
“Substantial criminal record
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
…”
12. If the Tribunal is satisfied that the Applicant does not pass the character test, then the discretion provided for by section 501(2) of the Act is available to it. In exercising the discretion, Ministerial Direction 21 is to be followed with the Tribunal having regard to the three primary considerations and a number of other considerations referred to in that Direction. The Tribunal is to have regard to the importance and weight placed by the Minister on the primary considerations. Other considerations are also to be given appropriate weight, any one of which is not to individually outweigh a primary consideration.
13. Paragraph 2 of the Ministerial Direction 21 as here relevant states:
“Protection of the Australian Community
2.4 The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community. The Government is especially mindful to take reasonable steps to protect the safety of the more vulnerable members of the community, such as children and young people who are especially at risk. This is of particular importance when the offences in question are in relation to drugs and crimes of violence.
2.5 The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(a) the seriousness and nature of the conduct;
(b) the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c) whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).
The seriousness and nature of the conduct
2.6 It is the Government’s view that the following are examples of offences which are considered by the Government to be very serious:
(a) the production, importation, distribution, trafficking (including possession for this purpose), commercial dealing, or selling of illicit drugs:
• persons who embark upon drug-related crime for financial gain have shown a callous disregard for the insidious effects of illicit drugs on the health and welfare of Australia's young people;
• …
• offences involving illicit drugs of dependency or addiction, such as heroin, are also of particular concern to the Government and the community
…
(d) sexual assaults are particularly repugnant to the Australian community, especially sexual assaults involving children regardless of whether there was overt violence or the threat of violence;
(e) armed robbery (including robbery involving the use of imitation weapons), home invasion;
(f) murder, manslaughter, assault or any other form of violence against persons;
…
(n) any other crimes involving violence or the threat of violence:
• such crimes are of special concern to the welfare and safety of the Australian community; and
…”
14. Further Ministerial Direction 21 provides that:
“2.7It is the Government's view that the sentence imposed for a crime is an
indication also of the seriousness of the offender's conduct against the community.
Decision-makers should have due regard to the Government's view in this respect,
including:
(a) the extent of the person's criminal record, including the number and nature of offences, the time between offences, and the time that has elapsed since the most recent offence; and
(b) the repugnance of the crime:
• crimes involving violence or fraud against defenceless persons (such as children, the elderly, the disabled and the incapacitated) are especially repugnant to the whole community.
…
2.10 It is the Government's view that the person's previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism. In particular, the following factors will be relevant to the assessment;
(a) a non-citizen commits a further offence after having been warned previously about the risk of refusal or cancellation;
(b) a non-citizen with several previous convictions in Australia should be considered as having an increased risk of recidivism in light of that past behaviour. In cases where there is a gap or gaps between convictions, the inference may be open that the non-citizen has demonstrated that a substantial period since an earlier conviction is not a reliable indicator that future offences will not be committed; and
(c) the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make.
General Deterrence - the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons
2.11 General deterrence aims to deter other people from committing the same or a similar offence. While not a conclusive factor in itself, general deterrence is an important factor in determining whether to refuse or cancel a visa. The general deterrence factor may be relevant in a number of ways:
(a) the nature of the offence may be such that visa refusal or cancellation may deter others from committing similar offences; and
…
Expectations of the Australian community
2.12 The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. Decision-makers should have due regard to the Government’s view in this respect.
The best interests of the child
2.13 This consideration only applies if the child is or would be come into effect. The best interests of any children aged 18 years or more is not a primary consideration but may be considered with other considerations under paragraph 2.17
…
2.17 When considering the issue of visa refusal or cancellation, other matters, although not primary considerations may be relevant. It is the Government’s view that where relevant, it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations. These other considerations may include:
(a) the extent of disruption to the non-citizen’s family, business and other ties to the Australian community.
…
(c) the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some way dependant on the non-citizen for support which cannot be provided elsewhere;
(d) family composition of the non-citizen’s family, both in Australia and overseas;
…
(h) any evidence of rehabilitation and any recent good conduct;
(i) whether the application is for a temporary visa or permanent visa;
…
(k) the fact that a non-citizen has been formally advised in the past by an officer of the Department of Immigration and Multicultural Affairs about conduct which brought him or her within the deportation provisions at section 200/201 of the Act or the visa refusal and cancellation provisions at section 501.”
cancelation of an absorbed person visa
15. It was submitted on behalf of the Respondent that whilst the Tribunal may not have jurisdiction to finally determine whether the Applicant does or did hold an Absorbed Person Visa for the purpose of determining the present application the Tribunal should proceed on the assumption that the Applicant may have held an Absorbed Person Visa at all relevant times and consider the consequences of the cancellation of that visa and the Transitional (Permanent) Visa class BF. The Tribunal proposes to accept this submission and act upon in.
16. It is noted that the Respondent does not concede that the Applicant does or did hold an Absorbed Person Visa.
17. In Nystrom v Minster for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 420 the Full Federal Court held that the holding of an Absorbed Person Visa is a relevant consideration when considering the effect of cancellation of such a visa. The court outlined a number of matters that should be of concern. The effect of the matters so identified by court was to draw a distinction between consideration of cancellation of a visa that has been held for a relatively short period of time and that may be regarded as long standing. The difference is to be appreciated between persons absorbed into the Australian community and those who are not. This is a relevant matter when considering the notions of protection are and expectations of the Australian community. It was further submitted that the Applicant having been liable since 1978 to be deported under the “various regimes in operation under the Act” that such a position being once established continues under the present section 501 of the Act. (Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 92 ALR 93). Issues surrounding the cancellation of a long standing visa are to be considered in the present review.
18. The Tribunal in this matter has proceeded to consider the relevant factual situation on the basis that the Applicant held an Absorbed Person Visa at the relevant time. It does then consider the consequences of the cancellation of that visa, a long standing visa and the Transitional (Permanent) Visa.
absorbed person visa – submission as to it being given specific consideration
19. On behalf of the Applicant it was submitted that an Absorbed Person Visa goes beyond merely accepting the fact that a visa holder entered Australia before 2nd of April 1984. The Applicant’s case “is quite special” in that he entered Australia as a child with his family and spent the greater proportion of his formative years in Australia. His cultural identity is with Australia. All of his immediate family members live in Australia. He has had no contact with Germany over a period of 35 years.
20. It was further submitted on behalf o the Applicant that the fact of he being an absorbed person within Australia and a member of the Australian community is to be given a “special indeed major consideration in any cancellation decision”. There is a “major qualitative difference” between the cancelling of the visa of a person who has arrived in Australia and not yet become established in the Australian community and the visa of a member of that community who “has no other community save for the Australian community”. The latter person is not a member of another community and has no “community to return to”. It was submitted that this “qualitative difference” provides a foundation for giving evidence of bad character and the discretionary factors that are in the Applicant’s favour “the closest scrutiny”.
chronology of significant events
21. On behalf of the Applicant a chronology of significant events was made available to the Tribunal. The Respondent does not dissent from the factual situation as outlined in that chronology. Subject to some additions to it the chronology of relevant events is as follows:
1958, October 3 Birth of the Applicant in Germany
1959Birth of the Applicant’s brother Wolfgang Kertz in Germany
1964Birth of the Applicant’s brother Axel in Germany
1966 Birth of the Applicant’s sister Cornelia in Germany
1970, March 18 Applicant arrives in Australia with his parents, brothers and sister
1973Applicant ceases schooling and left home at the age of 15
1976Applicant’s mother admitted to psychiatric clinic
1976, November 11 Applicant sentenced to 3 years imprisonment for armed assault and larceny of motor vehicle
1977, June 10 Applicant escapes from lawful custody charged accordingly and of larceny of a motor vehicle. Sent to a term of imprisonment.
1978, August Applicant released from prison and commences a work as a welder
1978Applicant’s parents become Australian citizens, Applicant not included
1980Applicant marries Kirsty McIntire-Smith
1984, August Applicant meets Catherine Phillips and commences de-facto relationship.
1984, October Applicant suffers a back injury at his place of employment
1985, July 3Linda born daughter of the Applicant
1986, March 16 Applicant convicted of break and enter and steal placed on recognisance
1986, July 22 Applicant convicted of malicious injury placed on recognisance
1987, October 28 Applicant convicted of armed robbery, sentenced to a period of imprisonment
1990, November 23 Eric born, son of the Applicant
1991Applicant experiences aggravation of back disability
1992, September 4 Applicant convicted of possess firearm whilst unlicensed and possess of prohibited drug. Placed on recognisance
1992, September 3 Applicant convicted of possess of heroin
1993Applicant commences Methadone programme
1993, July 6Applicant convicted prohibited drugs, goods in custody, possess shortened firearm, sentenced to term of imprisonment
1993, September 3 Applicant convicted of malicious wounding, term of imprisonment
1994, July 27 Applicant convicted of possess of prohibited drug
1995, March 12 Applicant escapes from correctional facility
1995, July 12 Applicant was due for release from facility
1996, May 9Applicant convicted escape from lawful custody, steal from dwelling, indecent assault, sexual intercourse without consent, term of imprisonment
2003, March 4 decision to cancel transitional (permanent) visa
2005, November 4 Notice of intention to consider cancellation of Temporary (Permanent) Visa and Absorbed Person Visa given by Respondent to the Applicant
2005, December 9 Parol Board recommends Applicant’s release from prison
2005, December 16 Applicant released from prison and detained at Villawood Detention Centre
criminal history of the applicant
Date of Conviction
Description of Offence
Sentence
11/11/1976
1. Larceny motor vehicle.
2. Armed assault with intent to rob.
6 months prison
10/6/1977
1. Escape from lawful custody.
2. Larceny motor vehicle.
3. Larceny motor vehicle.
2 years prison
16/3/1986
Break, enter and steal.
Good behaviour 4 years
22/7/1986
Malicious injury.
Good behaviour 2 years
28/10/1987
Robbery being armed (2 counts).
4 years prison
4/9/1992
1. Possess firearm whilst unlicensed.
2. Possess prohibited drug (heroin).
3. Possess prohibited drug (cannabis).
Good behaviour 2 years
30/9/1992
Possession prohibited drug (heroin).
Fined.
6/7/1993
1. Possession prohibited drug.
2. Goods in custody.
3. Possession shortened firearm.
4. Possession firearm whilst unlicensed.
5. Breach of recognisance of 4/9/92.
1. 6 months prison.
2. 3 months prison.
3. 12 months prison.
4. 16 months prison.
5. 12 months prison.
6/7/1993
1. Possess prohibited weapon.
2. Possess prohibited weapon without authority (permit).
1. 16 months prison.
2. 16 months prison.
3/9/1993
Malicious wounding.
6 months prison.
27/6/1994
Possession of prohibited drug
7 days prison.
9/5/1996
1. Escape lawful custody.
2. Steal from dwelling (3 counts).
3. Indecent assault.
4. Sexual intercourse without consent.
5. Detain person for advantage.
1. 2 years. 6 months.
2. 2 years, 6 months.
3. 1 year.
4. 9 years.
5. 9 years.
factors associated with criminal history
22. It is now nearly ten years since the Applicant was last sentenced to a term of imprisonment. Prior to that he had as above detailed been subject to various terms of imprisonment. The most significant of the latter was one imposed in October 1987. It is relevant in these proceedings to note the comments of the sentencing judge on each of the two occasions in the context of assessing the risk of recidivism on the part of the Applicant and the need to protect the Australian community. In his reasons for sentence on the 28th of October 1987 the sentencing judge as here relevant said:
“…
The crimes of which the prisoner stands charged are very serious ones. In each case the crime charged is robbery whilst armed.
…
The prisoner informed the police officers that he is addicted to heroin although he had not, he said, used heroin for four days prior to his arrest.”
…
“The prisoner came to Australia in 1970 from Germany, he is 29 years of age, lives with a de facto wife and two children and is on sickness benefits.
…
The prisoner also said that he made the robberies because he had getting (sic) symptoms from previous heroin use and that his activities steamed from the need to acquire law of drugs.
…
The prisoner gave evidence. He asserts that he is off heroin in prison and is occupied in a useful way there.
…
Reports from a psychologist Ms Staffie – Exhibit 1- and from sister Marriaty - Exhibit 2- are quite hopeful for the future of the prisoner…
…
However it must also be said that at the time the offence was committed the prisoner was on two recognisances to be on good behaviour as mentioned before; one relating to a charge of breaking and stealing in March 1986 and one of lawful damage in July 1986. It must also be said that the crimes committed by the prisoner are very serious ones and cannot under any circumstances be otherwise regarded.
They involve the robbery at gun point, with a loaded or not, on two occasions and the tying up Mr Sheppard and Mr Hessy. It cannot be said that the prisoner was physically violent or verbally terrorised the victims but I have no doubt that these gentlemen suffered shock and fear the consequences which might well not be immediately apparent.”
23. In his evidence before the Tribunal, the Applicant said that he had no recollection as to any admissions that he had made at the time of his arrest or to the police officers. He said that he was experiencing drug withdrawal symptoms at the time. Before the sentencing there was no indication from him as to any remorse felt for the victims of his crime.
24. In the course of delivering his reasons for sentence on the 9th of May 1996 the then sentencing judge as here relevant made the following observations:
“…
The prisoner has an appalling criminal record …He has appeared in a court of this State on ten occasions, six times in a Local Court and four times in the District Court. He has been dealt with for ten offences. I think that it is fair to say that he has learnt nothing from the convictions or the penalties imposed on him.
The circumstances in which the prisoner committed the offences which bring him before me for sentence are, briefly stated, these}.
On 8 March 1995 the prisoner was transferred from Bathurst Correctional Centre to Kirkconnell Correctional Centre which is a minimum security prison. That day he signed an Inmate’s Undertaking “not to escape”. He was due for release on 12 July 1995.
On 12 March 1995 the prisoner failed to attend the 3.50pm muster. He had escaped from the centre. This is the offence contained in the first count of the Indictment….
At some time between 12 and 16 March 1995 the prisoner entered the dwelling house of ….and stole a rifle, a quantity of ammunition, a sleeping bag and some food. This is the offence contained in the seventh count of the Indictment…
At about 11.15pm on 16 March 1995 the prisoner entered the dwelling house of [“Mrs X”]… He knew Mrs X, having been employed by her over some months a few years earlier. He knew that Mrs X was the mother of three children. Having entered her home, he intimidated Mrs X, he threatened her, he assaulted her, he committed acts of indecency upon her, he forced her to engage in unwanted sexual activity with him, he stole some of her property from her home and he forced her to assist him in remaining at large… The relevant circumstances are contained in the statements of Mrs X… and these circumstances are not disputed by the prisoner. In saying this, I am aware that the Crown accepts that, while the prisoner had the rifle that he had stolen from ….home with him when he forced Mrs X to perform fellatio on him, the prisoner did not threaten to harm Mrs X with the rifle as a means of forcing her to perform fellatio on him. In saying so briefly what I have of what happened to Mrs X I do not diminish or lessen the enormity of what the prisoner did to her. The prisoner entered her home at night armed with a rifle, when she and her three children were in their beds and asleep, and he woke her at about 11.15pm and, from then until about 7.55am on 17 March 1995, almost nine hours, he terrorised her, and that really is the only appropriate word to describe what he did to her. I do not doubt that she feared for her life and for the lives of her children. She is to be commended for her presence of mind during her ordeal. The prisoner has not revealed why he did what he did to Mrs X. She was known to him. He regarded her as a friend. She had not committed any sin against him or given any offence to him. She had not shown any sexual interest in him. ..
On 27 March 1995 the prisoner entered the dwelling house of …. and stole property of …., including a number of rifles and a quantity of ammunition.
…
On 28 March 1995 the prisoner was located, arrested and taken to Bathurst Police Station…The interview was recorded…Except that he denied forcing Mrs X to perform fellatio on him, the prisoner admitted leaving Kirkconnell Correctional Centre, entering …. Home and stealing his property, entering Mrs X home and remaining there with her until she escaped and entering …. home and stealing his property,
…
…I doubt his desire to turn over a new page in his book of life. He has lived a life of crime and has spent many years in prison over the past twenty years. Although I would prefer to see the prisoner cease his criminal activities, I fear that history will repeat itself. However, having said that, only time will tell.
…
…The prisoner has reached the point commonly called the cross roads of life; if he wakes up to himself, he will take the path of rehabilitation: if he does not, he will take the path of crime and continue to re-offend with the result that he will spend ever increasing periods in prison...”
25. Statements provided by Mrs X to the Police in 1995 were in evidence (Exhibit 1). It is relevant to these reasons to refer to some of the matters stated by her in the statements as they indicate the gravity of the conduct engaged in by the Applicant. The statements were made available to him prior to sentencing and he did not at that time demur to any of the material set forth in them. At the hearing of this application the Applicant did seek to lessen the seriousness of his conduct. In her statement of the 19th of March 1995 Mrs X amongst other matters stated:
“…
4. I was woken up by pressure across my mouth and throat... He said “Don’t make a noise, you’re in danger. I’m serious”…I realised it was a gun…
5.…He said “Yes, and I and I’m full of anger so be very wary”… Harry grabbed me around the throat with both hands and said “You say nothing”. .. I was terrified, I believed he would kill me and the kids.
6.….I was so scared
…
12…I was terrified of Harry he still had the gun pointing at me, so I swallowed the second tablet.
…
17… He said “There’s nothing left for me anyway. It’s the system they never let you go, they are always watching you. If they are going to take me out I just want to take those other four out before they get me. They won’t put me back in gaol. If I get cornered I’ll blow my own brains out because if I get caught they’ll put me back inside for such a long time I will be really old before I get out. I’m so full of hate”.
…
27… He said “You don’t want to have to sex with me, do you”…I said “No”. He said “Why not?” I said. … He punched me in …. With his fist…He grabbed hold of my hair and held me down on the bed. .. I felt terrified, I felt very vulnerable…
29… I was also scared if I didn’t stay there and do what he wanted he would pick up the gun and hurt my children.
30…he straddled me with a knee either side and slapped the right side of my head. I felt pain to my head when he hit me. He put his hands around my throat again ……He hit me with his right hand up the side of my head…
…”
26. As I have already indicated the circumstances detailed by Mrs X were not disputed by the Applicant prior to or at the time of his sentencing. There is not any reason why her intended evidence should be discounted. In the course of his evidence before the Tribunal the Applicant contended that he did not threaten Mrs X and that the gun had been “put away”. It is only “in retrospect” that he thinks Mrs X was frightened of him. He did say that he could not explain why he committed the acts, “I was in such a state at the time, all I wanted was to see my kids”. He did not deny having the gun, a weapon that he had collected at a farm house on the way” and “I found the gun and I stole some ammunition”.
27. The Reverend Smart discussed the events at the home of Mrs X with the Applicant. To her, the Applicant stated that he had experienced grief at not seeing his children and “I lost my reason”. He discussed with her waking Mrs X, she being upset “with the presence of a gun but then contended that the two of them drunk alcohol together and commenced a consensual sexual activity. He says that he “stopped when he realised what he was doing was wrong” and that Mrs X was no longer willing. This is clearly in contrast to the statement made by Mrs X at the time. He said to Reverend Smart that it was “ the knowledge that I was not going to see my children that drove me”.
28. The Applicant according to Mr Alexander discussed the events with him “many times”. Mr Alexander had read the statements made by Mrs X. He observed that the Applicant was “very emotional” when the subject of his children was raised and their mother not bringing them to see him at the gaol. He indicated to Mr Alexander that it was on this account that he originally left the correctional centre. He says that the Applicant discussed stealing the fire arm and some clothing, entering Mrs X’s home through a window and waking her. She was he said frightened. However the Applicant stated to Mr Alexander that they talked, drank alcohol together and had “sex activity”. He said that the latter lasted only a short time “when it became apparent that she did not want to proceed, I stopped”. He further says that Mrs X slept with him in the same bed, they had breakfast together and took the children to the bus. It is clear that the situation narrated by the Applicant to Mr Alexander is very different to that stated by Mrs X in her statements. To Mr Alexander the Applicant only admitted to intimidating Mrs X. He did not accept that he had assaulted her, committed acts of indecency upon her, engaged in sexual activity without her consent and forced her to behave as she alleges. To Mr Alexander the Applicant expressed a version of the events that “was not as cold and clinical as it appears in the transcript”. Mr Alexander said “we questioned him many times and formed the view that he did not intend to cause harm”. Mr Alexander is of the view that the Applicant “will not again so act”. It is clear that the Applicant has sought to persuade the Reverend Smart and Mr Alexander as to the events at the home of Mrs X not been as traumatic as Mrs X narrated.
29. It may well be that the passage of time, in excess of ten years, since he entered her home and his recollection of his conduct now blend in with many discussions he has had and his own introspection. However it is clear that the Applicant had access to the statements of Mrs X prior to his being sentenced that he had read them and that he did not place any part of them at issue before the sentencing judge. Indeed the judge noted the Applicant’s acknowledgement of the factual situation having been as detailed by Mrs X. I see no reason why the Tribunal should find otherwise.
30. This is not to disregard the view taken by Reverend Smart and by Mr Alexander. I have no doubt as to the sincerity of these people. They each have spent time with the Applicant whilst he has been incarcerated. Mr Alexander has become very involved with and attached to the Applicant. Indeed during the course of his evidence Mr Alexander was clearly quite emotional, particularly when it was suggested to him that he may have “let the Applicant down”.
character
31. On the basis alone of the convictions recorded against him I am satisfied that the Applicant is a person, within the meaning of the Act not of good character. He has consistently since first arriving in Australia acted regardless of the law and has shown no inclination to comply with the responsibilities of a lawful resident of this country. He arrived with his parents under an umbrella visa but has abused the hospitality that was extended to him by the Australian community. He has acted regardless of the welfare of those who might have looked to him for support. He has made a minimum contribution to the Australian society and except for relatively short periods of time there is no evidence of his seeking to integrate into it.
32. It is true that the words “of good character” mean as was emphasized in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432 enduring moral qualities reflected in soundness and reliability in moral judgment in the performance of day to day activities and in dealing with fellow citizens. It is not simply “a matter of repute, fame or standing in the community but of continuing performance according to moral principle. A person of ill repute by reason of past criminal conduct may nonetheless, on objective examination at a later stage in life, be showed to be a person reformed and now of good character”: Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) ALD 441 at 426.
33. For a finding to be made that a person is not of good character it is necessary to make a “supervening determination after having regard to the matter set out in section 501(6)(c).” A consideration of past and present criminal conduct and/or past and present general conduct provide indicia as to the presence or absence of good character but do not in itself answered the question. “The Minister must look at the totality of the circumstances and determine whether the person before him is distinguishable from others as a person not of good character - a question not to be confused with characterisation by conduct alone”: Godley v Minister for Immigration and Multicultural and Indigenous Affairs [2004] 774; Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187.
34. It was submitted on behalf of the Applicant that the “repute, fame and standing of Mr Kertz ipso facto by reason of his criminal record is negative”. However it was contended that “as the evidence in this case has shown … the current objective examination at a later stage of life…..shows that the enduring moral qualities of Mr Kertz have been demonstrated such [that] this Tribunal can be confident that Mr Kertz has reformed [and is] now of good character”.
35. I am not satisfied that there is evidence before the Tribunal sufficient to enable it to come to the latter conclusion. The Applicant has been in gaol since 1995 and up until December 2005. He has been in detention since he was released on parole. Whilst it is true to say that there are not any significant negative factors relevant to his conduct whilst he was in gaol nor is there any evidence apart from his engaging in various activities, of his general conduct leading to any helpful conclusion as to good character. Indeed the evidence is that whilst serving his term he was for security reasons detained in a secure environment.
36. The Tribunal agrees with the submission made on behalf of the Respondent, namely that the Applicant’s long criminal history indicated contempt for the law. This is further illustrated by the fact that he was involved in two episodes of escape from prison which on the second occasion led to and involved serious acts of violence and danger to life.
other relevant facts and findings of fact
the applicant’s evidence
37. As has been already indicated the Applicant arrived in Australia with his parents, brothers and sister in March 1970. He attended schools between that time and the age of 15 where he was subjected to what he described as “most horrific experiences”. His school life was anything but constructive and this was aggravated by abuse that he received more particularly from his mother. He said that he “lived in a capsule, or been hit, yelled at and blamed for everything”. He left the school at the age of 15 running away from home and obtaining casual work. He returned to his parents’ home but at the age of 17 left home again after having been assaulted by the sons of “mum’s drinking partner”. Shortly thereafter he was involved in the first of his criminal activities and was sentenced to a term of imprisonment.
38. After his release from gaol in 1978 he met a young lady whom he married. They lived together however only for a short period. In 1984 he met and commenced a relationship with another lady with whom in due course he had two children. However in October 1984 he suffered a work related injury to his back, was hospitalised and experienced considerable pain and discomfort. He says that it was at this time he began to use drugs to minimise his pain. He succumbed to the use of heroin. In 1987 he “ended up doing robberies to support drug habit”. He was charged and convicted and sentenced to terms of imprisonment. Upon release in 1990 he obtained employment but due to his back injury became in receipt of sickness benefits. He again offended and was again sentenced to terms of imprisonment. This imprisonment was served at Bathurst. His de facto wife for most of the time lived in the same city and would bring the children to see their father in gaol. However in due course she formed an attachment to another man and seemingly by reason of their relationship ceased bringing the children to see their father. It was this inability of the Applicant to engage with his children that, he alleges, led in due course to his 1995 criminal activities.
39. The Applicant has not been out of prison since 1993 except for the period of his escape and whilst now at Villawood. He says that he believes that his “feelings and my behaviour changed” during this period of time. He said that he believes he can “contribute positive things to the community and people around me”. He has, he says, better contact with his family. He acknowledges being informed in 1978 of the possibility of his being then deported from Australia and that he “was aware further criminal activity could get me into trouble with Immigration”.
other evidence bearing upon the relevant considerations
proffesional assessment
40. A report provided by Mr Ron Arthur, Alcohol and Other Drug Counsellor at the Broken Hill Correctional Centre was in evidence (Exhibit B). The report was dated February 2003. Mr Arthur states that he first met the Applicant in about August 2000 and that “he eventually agreed to meet for individual alcohol and drugs counselling”. After briefly narrating the criminal history of the Applicant Mr Arthur states:
“Throughout his time in prison, particularly during this current sentence (commenced in 1993) Mr Kertz has made a serious and conscientious effort to entirely overcome his past problems with illicit drugs. He has undertaken and successfully completed every alcohol and drug rehabilitation programme that has been made available to him during his period of incarceration”.
Mr Arthur makes mention of the Applicant being subjected to a psychiatric examination and with “guarded optimism” expressed confidence in the Applicant. He said that he believed that “he will perform to community expectations when he eventually gains his freedom.” He stated that he also believed that “he will not re-offend, nor will he again become involved in either drugs or alcohol”. He detailed a number of TAFE programs that the Applicant had undergone.
41. The psychiatric examination referred to by Mr Arthur was undertaken by Dr Andris Kalnins, Visiting Psychiatrist, Broken Hill Mental Health Service and in a report that he made in January 2003, the psychiatrist traverses the unfortunate events that had been experienced by the Applicant since his arrival in Australia. Dr Kalnins spoke of creative skills exhibited by the Applicant which could be used by him when he leaves gaol. He was of the view that the Applicant could be helped by further psychotherapy.
42. Ms Paula Farrugia, an Educational and Developmental Psychologist, was retained on behalf of the Applicant to prepare a report for these proceedings. In her report of the 1st of February 2006 (Exhibit E) she detailed the events that had been experienced by the Applicant since his arrival in Australia. She noted the distress experienced by him during his school years both at schools and at his home, and his becoming disabled by reason of his work related accident. He became addicted to drugs. She concludes:
“…Predicated on these findings it would appear life outcomes for Mr Kertz can be linked to the alleged prolonged physical and psychological abuse he experienced as a child from his mother, the emotional unavailability of his father and an emotionally impoverished home environment absent/lacking in warmth, support, many essential healthy developmental requirements of growing children and, volunteered Mr Kertz, “no love”.
According to Ms Farrugia: “Such an environment can prove to be the breeding ground of future dysfunction, poor interpersonal relationships, violence, anger, impulsiveness, hostility, anxiety and arguably sadness”. She continued by saying that:
“This would appear to be the case for Mr Kertz whose adult life, until recent years, is characterised by drug dependency, crime, violence, repeated incarceration, severe depression, suicide attempt and repeated self harm.”
She does note however that: “The continuing presence of significant protective variables in Mr Kertz life, particularly throughout the last decade can potentially alter poor outcomes”. She identified Mr and Mrs Alexander as being significant protective variables in his life. She noted the current closeness of the relationship between the Applicant, his parents and his brothers, of his confidence in his capability and commitment to finally making a positive contribution and that he “enjoys good interpersonal relationships with officers and detainees alike” at Villawood Detention Centre. She was of opinion that the Centre “is proving to be an excellent transition initiative facilitating, for Mr Kertz, a smooth and more adequately prepared re-entry into the community and an awaiting home and family life. It is my clinical recommendation that Mr Harald Kertz be released from the Villawood Detention Centre to take up his life in the community”.
43. In her oral evidence she said that the presence of increasing protective variables, his parents, siblings and the Alexanders portend for a favourable prognosis. However it is noted that Ms Farrugia did not examine the criminal record of the Applicant, did not consider his conduct as detailed by Mrs X, and did not consider that this was a necessary prerequisite to her recommendation.
44. The Reverend Esther Smart in her statement (Exhibit A) detailed the occasions when she had spent time with the Applicant and said that from “our first meetings I was impressed with Harald’s level of insight into his past problems, his history and his need for ongoing personal development”. She felt that the Applicant “had the courage to confront his story”. After detailing her understanding of events in his life prior to his incarceration at Lithgow Correctional Centre she said: ”It is beyond comprehension that the decision maker … would maintain that Harold has not reformed when there is ample evidence from corrective services and the parole office that he has addressed his offending behaviour and has been a proactive partner in his rehabilitation for many years”. She felt that the Applicant had benefited from the support that has been given to him by the Alexanders and saw the renewed contact that he has with his family as being significant. She also detailed courses that he had successfully completed and commended him for the motivation that this displays. As I have already mentioned he gave a different version of the 1995 events to the Reverent Smart, to that exhibited by Mrs X. The Reverend Smart had confidence in the ability of the Applicant to integrate into the Australian community. The Applicant was released on parole in December 2005. Pre release reports of the Probation and Parole Service were in evidence (Exhibit D). The reports variously state that “it is assessed it is an optimum time for his release” that “release to parol would unable the offender to assess treatment programs, to address the identified criminogenic factors, and therefore by the expiry of supervision in September 2007 it would be expected that the identified areas of risk may have been addressed by the intervention of the services outlined above”.
45. However in a report of the 19th September 2005 it is stated with reference to the Applicant that: “it is impossible for Mr Kertz to address his offending behaviour in a therapeutic setting with in the correctional centre environment and therefore when he is eventually released he will continue to be regarded ‘as an untreated sex offender’ and if released at full time, he will have no obligation or requirement to attend to any program which may assist him in relation to his offending behaviour and thereby protect the community.” The report indicated that it: “could be a condition of his release and thereby afford greater protection to the community”. If he was to be assessed by Forensic Psychology Services and a constructive management plan put in place. It is further noted in a report of July 2005 that “due to the offender‘s previous escape history and past self harm behaviour the offender would not be considered for a reduction in classification or review of his current management status”.
non family support and assessment
46. I have elsewhere in these reasons made mention of Mr and Mrs Alexander. Mr Alexander first came to know the Applicant shortly after the latter arrival in Australia and when he was attending an English language class at old Guilford Primary School. Mr Alexander at that time made an assessment as to the Applicant being “the brightest student in the class”. Later he was requested by the Applicant’s father to tutor the Applicant in English and this he did for quite a period of time. Even be it that Mr and Mrs Alexander spent time with the Applicant in the years 1970 to 1975/76 they did not detect the fact of his family being dysfunctional at that time. Mr Alexander again made contact with the Applicant after he noted in a newspaper the Applicant’s escape from custody in 1995. Since then he has visited him frequently in his places of incarceration and had lengthy discussions with him. As already noted he has discussed at length the events of 1995 and the way which they impact on his personal character. Mr Alexander is of the view that the Applicant “now has a well rehearsed set of social and work skills” and that “we are aware of the responsibility involved” in having the Applicant live with Mr Alexander “and it is a measure of how much we believe that this man has changed and should have the chance to remain here that we are prepared to make these statements on his behalf as well as to commit providing ongoing support”. He further states that his family “has faithfully supported Harald Kertz emotionally and financially for more then a decade”.
47. As Mrs Alexander puts it “Harry has demonstrated a stoicism and determination over the years which are entirely admirable. He is now 48. He has had nothing to do with drugs in a ten years we have known him and his values and aspirations are far removed from that life. He is resourceful and I can imagine him finding some steady manual work which would be very satisfying to him after all these years. I cannot imagine him imposing a threat to society nor to any other people who were part of his previous life”.
48. Mr Alexander recognises the commitment made by his wife and himself and tributes this to his remembering “this kid’s bright innocence at the age of 11 and contrasting this with the adult that emerged was quite a shock”. He acknowledges that the Applicant “clowned on to him” and stated that “for us to let go would have been inhumane”. He has now agreed and committed to Corrective Services that the Applicant could live with him. Indeed Mr Alexander’s commitment was so great that when it was thought the Applicant would be deported to Germany, he himself undertook to travel to Germany, to be there ahead of the Applicant and to make arrangements for the Applicant‘s accommodation. He had made contact with a social worker and was informed that people at Frankfurt airport would be available to the Applicant.
49. It is basic to Mr Alexander’s appreciation of the Applicant’s position that “we have waited a long hard time. He has not been coy in dealing with the hard stuff with us. We questioned him many times and formed the view that he did not intend to cause harm ‘to Mrs X’”. Mr Alexander has no concern that the Applicant will again offend. It was his assessment that the Applicant “is bright enough, energetic enough, sociable enough to find work and live life again in the community; even be it he needs a period of reorientation”.
family assessment and hardship
50. Mr Frantz Kertz, the Applicant’s father gave evidence by his written statement (Exhibit F) and orally. He said that he has not returned to Germany since 1970 and at this time has not known living relatives in that country. He says that he is looking forward to his son’s release and that he speaks with him daily on the telephone, and visits him at least once a week at Villawood.
51. Mr Frantz Kertz, as does his wife, Mrs Ruth Kertz, experiences health problems which preclude each of them from engaging in physical activities. Mr Frantz Kertz has experienced a multiple disc injury in the lower spine and suffers from severe glaucoma. His wife has experienced spinal fusion of three vertebrae, angina, pulmonary fibroses, osteoporosis and arthritis. Mr Kertz became an Australian citizen as did his wife, two of their sons and their daughter in 1980. The Applicant was not included as, at that time, he was living away from his parents. He sees his son as having changed whilst in prison, that he is now “calm, not angry anymore and thinks before he makes a decision”. He said that his relationship with his son is “not distant anymore” and that he wishes to have an ongoing meaningful relationship with him. If the Applicant was deported to Germany “I do not know how I would react, I’ll be hopeless, the family would be ripped apart again, when I had hope that the family was coming together”.
52. The Applicant’s brother Mr Wolfgang Kertz speaks of his own incapacity as a result of an accident. He and his “partner” are 50 per cent disabled. He looks forward to his elder brother being able to assist and be company to them.
hardship to the applicant
53. It was submitted on behalf of the Applicant that he has spent the greater portion of his formative years in Australia. His cultural identity is Australian and he sees his place in the world as Australia. The assessment made by Ms Farrugia is such as to show that even though the Applicant was born in Germany he identifies with Australia, the Germany of his childhood having changed dramatically over the past 36 years. It would be a foreign country. The Applicant’s father was a war orphan and his mother’s family came from East Prussia. They have no contact with their former homeland. They have no relatives in Germany. If the Applicant should be deported he would have no family network for support.
54. All of the Applicant’s family are Australian citizens. His father is 69 years of age and his mother is 68. The Applicant’s brother Wolfgang is confined to a wheelchair as is his partner. The Applicant is the only family member who can assist Wolfgang and indeed his parents. If the Applicant should be deported it would mean permanent banishment from Australia and separation from his family.
55. As already indicated the Applicant experienced a work related injury in 1984. The accident was the subject of a workers compensation claim but the Applicant has been in pain ever since and this undoubtedly contributed to his drug dependence.
56. Presently the Applicant does not have a German passport, even be it that the German Consulate has indicated they will issue him with a travel document. There is no evidence as to the position to which he might aspire in Germany, work that might be available, medical attention and social welfare that he might attract. He has little educational qualifications and little German language ability. It was submitted on his behalf that should he be deported to Germany “he would be homeless and lead a life of poverty”. Indeed it was further said that if deported “his life would be endangered.”
family consideration – hardship to australian citizens
57. It has been already indicated in these reasons that measurable hardship would be experienced by the Applicant’s parents and his brothers and their family if he should be deprived of a visa.
58. The Kertz’ family arrived in Australia in 1970 without any significant funds and without the provision of significant social support. For a number of years the family was dysfunctional, the Applicant’s mother experiencing psychiatric problems. She was also addicted to alcohol. The Applicant’s father of necessity worked two jobs and was of little emotional support to the family.
59. No doubt the Applicant’s period of incarceration aggravated the trauma experienced by the Kertz’ family. It is only of recent time that a raproachment has been experienced by them.
exercise of discretion
60. I have already indicated that I am satisfied that the Applicant is a person not of good character.
61. It is thus necessary for the Tribunal to consider the various matters referred to in Direction 21 and endeavour to assess where the balance should lie after taking into account the relevant factors.
62. On behalf of Respondent it was said that the Respondent’s concern primarily relates to protection of the Australian community. It is maintained that the Applicant has engaged in serious criminal conduct over a number of years and that he remains a threat to the Australian community. Of behalf of the Applicant there is no denial that his crimes have been serious in nature. However it is said that during his imprisonment he has overcome his drug addiction, completed drug and alcohol programs, educational courses, committed no offence during his imprisonment and has been released on parole. The Applicant also noted the support given to him by the Reverend Smart, Mr Arthur, Dr Kalnins and the Alexanders. It is submitted that the risk of recidivism is low; he has reconciled with his family and in particular his parents.
63. I am satisfied that the Applicant’s criminal conduct has been serious. He has a criminal history commencing in 1977 and his convictions have been extensive. They relate to the use of drugs. Firearms and violence were used in the course of armed robbery.
64. Paragraph 2.10(b) of Direction 21 states that a non citizen with several previous convictions in Australia should be considered as having an increased risk of recidivism in light of his past behaviour. On that criterion alone it could be considered that there is a risk that the Applicant will engage in further unlawful conduct. He was first considered for deportation and issued with a warning in 1978. He continued to commit offences from that time. On behalf of the Respondent it is contended that there is a high risk of recidivism of the Applicant and that this risk relates to acts of extreme violence. It is totally unacceptable, it is submitted, that the community is required to bear such a risk. It is further submitted that refusal of the visa to the Applicant will send a clear message to others that conduct of the type engaged in by him will not be rewarded. Deportation would make it clear that the committing of like offences by non citizens could well result in deportation. There is a clear community expectation that perpetrators of crimes abhorrent to the community who are non citizens may well not be allowed to remain in the community.
65. It was submitted on behalf on the Applicant that with reference to the expectations of the Australian community the Tribunal should look to the evidence of the Reverend Esther Smart, Mr and Mrs Alexander, Ms Farrugia and that of the other professional people. Their opinions and evidence may be looked upon as being indicative of the expectations of the Australian community. These people have all assessed the Applicant. He should be allowed to remain within the Australian community. They all believe that the Applicant will not engage in further acts of violence. I accept this submission on behalf of the Applicant. Each of the persons identified has developed a particular association with the Applicant, be it in the case of Reverend Smart and Mr and Mrs Alexander, associations genuinely adopted and sincerely held. The associations particularly in the case of Mr and Mrs Alexander, may have been influenced by their sense of responsibility towards the Applicant and to an extent a feeling of having “let him down”.
66. The Applicant has two Australian citizen children, only one of whom is under the age of 18 years. He has not had any contact with them for the past ten years. It is true to say that if he is deprived of a visa and deported, then there is little chance of his children ever being able to recommence a meaningful relationship with their father. Whilst it may be the intention of the Applicant if he be in the community to find his children and endeavor to recommence contact with him, this is by no means certain. There is no evidence before the Tribunal as to the present whereabouts of the children or their mother. It is not possible for the Tribunal to say whether the best interests of the younger child Eric will or will not be effected by the Applicant being without a visa and deported from Australia. The nature of the relationship between the child and the Applicant is at the present time non existent. The prospect of his developing of meaningful relationship with the child in the future is hypothetical and thus the Tribunal in unable to say that the interests of the child would be adversely affected by the Applicant’s absence or that the best interests of the child would be served by his remaining in Australia. There is at the present time, and has been for the last decade, no significant relationship between the Applicant and the children.
submissions and the decision
67. On behalf of the Applicant the Tribunal’s attention was drawn to the earlier problems experienced by the Applicant, his leaving home at a young age, his lack of preparation for adult life, his work related accident and the consequential addiction to drugs. It is said that the criminal pattern of behavior commencing in 1986 was the product of his drug addiction which itself was consequent upon his injury. It is further said that the events in 1995 were isolated and out of character and that his escape from the correctional facility was as a consequence of his being deprived of contact with his children and the emotional state that he then experienced. He said that the incidents with Mrs X were not as dramatic as she outlined in her statements and that his evidence in this regard should be accepted. Attention is further drawn to the support that he has from particularly Mr Alexander, a trained psychologist, the Reverend Smart, and the assessment made by Ms Farrugia. The family attachment that has of late developed is meaningful and should not be disrupted.
68. It was maintained that the 1995 events should be seen as a single incident in his life for which he has served a period of imprisonment in excess of ten years. He has been free of drugs since 1991. It was submitted on behalf of the Applicant that there is a minimum risk to the community and that despite sustained convictions and his having existed in a gaol environment, he has not re-offended. Apart what is said “from the bare facts of what happened” there is little to support concern as to any propensity on his part to re-offend. The visa held by the Applicant was that of an Absorbed Person. He has resided in Australia for 35 years. He arrived at the age of 11. There is no evidence of his having the right to become a German citizen. The health concern of his father and mother is relevant to contact terminating between them if he should be deprived of a visa. He would not see them again. Nor would he see any other member of his family.
69. On behalf of the Respondent the Tribunal’s attention is drawn to the severity of the Applicant’s criminal record. The undisputed facts are those of a man who has engaged in armed robbery, assault, sexual activity without consent and threat to the person. He has committed offences time and again and he should be seen as one prone to criminal activity and one likely to engage in future acts of violence and threat to the person. Many of his offences particularly prior to 1991 were committed in aid of his heroin addiction. However the offences committed by him in 1995 were at a time when he had been drug free for no less than two years. They were not committed either in aid of or whilst he was under the influence of drugs.
70. With reference to the evidence given on behalf of the Applicant it is submitted that Mr Arthur’s statement had no regard to the events of 1995 and no consideration was given to the Applicant’s consumption of alcohol at that time. Ms Farrugia made no reference of significance to the Applicant’s offending behavior in 1995 particularly the element of sexual violence committed by the Applicant. The Reverend Smart paid no heed to the professional assessments made by parole officers and has developed a personal assessment of him. Mr Alexander’s evidence pays little heed to the statements of Mrs X and the offending behavior in 1995. It is on the basis of what he had been told to him by the Applicant that Mr Alexander makes his assessment.
71. One of the worrying aspects of this matter identified by the Respondent and with which I agree is the Applicant’s insight into his offending behavior. There is no indication of regret or remorse for his conduct. He denies the violence of his action and seeks to portray the situation of 1995 in a much lesser light then that detailed by Mrs X. His conduct over the years has been characterized by the presence of weapons and threats of violence. He has inflicted self harm and attempted suicide whilst he has been free of the use of drugs. It was submitted that the Applicant is capable of volatile unpredictable behavior resulting in acts of extreme violence. It was finally submitted on behalf of the Respondent that the Applicant represents and poses a clear and present danger to other members of the Australian community. Further that he constitutes an unacceptable risk and the community expectation would be that the cancellation of the visa should be affirmed.
72. The Tribunal accepts as submitted on behalf of the Respondent that this matter is difficult. The conduct of the Applicant over many years is abhorrent and such as is not acceptable to the Australian community. The Applicant acted as one lacking any appreciation of the harm that he caused, the fear his victims experienced and the cost overall to the Australian community.
73. On the other hand the Australian community, it might be thought, should accept an 11 year boy, enabling him to obtain a meaningful education and then position himself socially in the Australian environment. The community, to this extent, it might be thought failed this young boy. When he engaged in his first series of criminal offences he was sentenced to a term of an imprisonment and was little improved when released. His work related injury, the exasperation of his position and his pain led to the heroin addiction. And so his life continued. The only support this man received has been from the Alexanders and the Reverend Esther Smart. Few others have extended their hand of friendship and understanding to him.
74. The Tribunal cannot be unmindful of the concern expressed on behalf of the Respondent. This is in the context of the Applicant’s criminal history. It is true that he has not offended over the last decade, and it is true that measurable support is available to him from Mr Alexander in the event of his being released. I am satisfied having in mind his convictions and past behavior, that there is a possibility that he may re-offend. But it is not great.
75. The conduct engaged in by the Applicant was extensive and continuous. There is an expectation on the part of the Australian community that a resident in this country will obey the Australian law. This expectation was broken by the Applicant on a number of occasions by his criminal conduct. However, if the Australian community was aware of the full factual situation, I am satisfied that it would not expect his visa to be cancelled.
76. I am satisfied that members of the Applicant’s family in Australia are genuine in their concern for his welfare and wish the present cordial relationships between them to continue. This concern may well be subjective on the part of each of the relatives. Nevertheless I am satisfied it is sincerely held by them and is a fact to be taken into account in arriving at a preferable decision.
77. The circumstances of the Applicant entering into Australia do not give rise to any other significant considerations. However there is room to consider the position of the Applicant from a compassionate point of view. If he is deprived of his visa and deported to Germany he will be there without support , without the likelihood of obtaining employment, this mainly on account of his limited education and fluency in German language and he may well be solely dependent on such social security as may become available vital to him. However there is no evidence of his being granted that facility.
78. The Tribunal cannot act in an inhumane manner and cannot act without compassion. The decision about to be made must take into account these factors as it does the primary considerations early discussed.
79. I have already indicated the assessment made by the Tribunal as to the Applicant’s likelihood of re-offending. This is a possibility. The Australian community is to be protected against this possibility. Parole conditions and the guidance of such as Mr Alexander should guard against this. The Tribunal has in mind the fact that the Applicant has been granted conditional parole and Mr Alexander is prepared to accommodate the Applicant in his own residence.
80. Being mindful of all of the matters set forth in these reasons for decision and weighing the primary considerations against the other considerations and with some reluctance having in mind the position in which the Applicant from time to time found himself and his clear early inability to adjust to normal life in Australia, the Tribunal is of the view that the protection of the Australian community and the alleged expectations of the Australian community do not override the other considerations. There is little risk to the Australian community. The hardship, humane and compassionate considerations together outweigh the Applicant’s past criminal conduct and factors associated with it. The likelihood of recidivism is not high.
81. For the reasons here before set forth the decisions under review are set aside.
I certify that the 81 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R Purvis, AM Q.C, Deputy President
Signed: Associate
Dates of Hearing 1 and 2 March 2006
Date of Decision 15 March 2005
Counsel for the Applicant Mr I Archibald
Solicitor for the Applicant Ms M Byers
Counsel for the Respondent Mr L Leerdam
Solicitor for the Respondent Ms K McNamara
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